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Lesson 56 - Free Speech 17:

GOVERNMENT AS PROPRIETOR IN CYBERSPACE

How does the traditional public forum (TPF) / designated public forum (DPF) / nonpublic forum (NPF) framework apply to cyberspace? Well, there are certainly no *traditional* public fora in cyberspace, just because cyberspace is so new. The Court has made it clear that TPFs must genuinely be linked to many decades or even centuries of history. Some people argue that the Court should identify TPFs by analogy even in new technologies, but the Justices have been unreceptive to this proposal.

There are, though, plenty of *designated* public fora: For instance, say a public university gives all students e-mail accounts, or lets them set up their own Web sites, and then decides to prohibit Web pages that contain -- for instance -- nude pictures. This is probably unconstitutional. The government has opened up a forum without restriction to students, so now it can't impose content-based restraints on what students do there.

On the other hand, say a public university lets students set up their own Web sites but only on matters related to their majors. It could then probably stop math majors from putting up nude pictures, unless the students could show some plausible (not just theoretical) connection to mathematics. But even there the university probably can't ban nude pictures on, say, art history majors' Web pages, at least so long as the pictures are somehow linked to art history.

Imagine the government says: "If you want to set up a Web page, talk to us; we might agree to set it up on our server, or we might not agree -- it depends." The server (at least with respect to Web pages) will be a nonpublic forum, since the government never really opened it up to people. It could, then, let math majors use it but not art history majors, or it could insist that none of the messages contain any profanity or nudity. These restrictions are probably viewpoint-neutral and reasonable.

On the other hand, it can't say "We'll allow Web pages advocating tolerance but not ones advocating racism," or "We'll allow Web pages expressing secular perspectives on political issues but not ones expressing religious perspectives." That would be *viewpoint-based*, and not allowed even in nonpublic fora.

What if the History Department sets up its Official History Department Web page, and accepts information on anti-racism projects but not information on pro-racism projects? That's constitutional, because here the government is *itself* speaking, and it can choose the message it wants to communicate.

authors:
Larry LessigDavid PostEugene Volokh



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