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Lesson 55 - Free Speech 16:

GOVERNMENT AS PROPRIETOR, GENERALLY

What if the government bans a certain kind of speech on its own property? The traditional rule in the offline world is this:

1.In TRADITIONAL PUBLIC FORA -- places which have historically been more or less free speech zones, such as sidewalks and parks -- the government is held to the same tough standards that apply when it's acting as sovereign. The government gets no extra authority from its ownership of the forum.
2.In NONPUBLIC FORA -- places which the government uses just for the performance of its functions, such as post offices, hospitals, and the like -- the government can impose any speech restrictions so long as they are *viewpoint-neutral* and *reasonable* (and the reasonableness requirement is fairly toothless). Thus, a public hospital can ban all political flyers from its bulletin board, though it probably can't ban only pro-gun flyers and not anti-gun flyers.
3.Sometimes, the government may set up a place as a DESIGNATED PUBLIC FORUM for use by a particular group of people (e.g., citizens generally or only university students) and for particular subject matters (e.g., for discussions about science). If it does this, it will be held to the same standards as for a traditional public forum: It generally won't be able to restrict the content of speech *so long as the speech fits within the purpose for which the forum was dedicated*.
Thus, if the government sets aside a classroom for university students to discuss things about science, it won't then be able to ban, say, creation science advocates -- even if you don't think they're particularly scientific, they're certainly talking "about science," because they're criticizing evolutionary biology. But it will be able to bar discussions about, say, Shakespeare, or discussions conducted by non-university students.

Can the government set aside a classroom for discussions of only a particularly viewpoint, e.g. "discussions about biology from an evolutionary perspective"? On the one hand, one could say that the government is designating the forum *only for that purpose*, and that it's entitled to do that. On the other hand, one could argue that the government shouldn't be able to designate fora in a viewpoint-based way. We strongly suspect that courts would not allow such viewpoint-based designations, but the answer isn't completely clear.

COMMON SOURCE OF CONFUSION: Is, say, a private newspaper or a private workplace a traditional public forum, designated public forum, or a nonpublic forum? The answer is: None of the above. Public fora are categories of government property. It's wrong, for instance, to call a private newspaper either a "public forum" or a "nonpublic forum" -- because it's private property, the newspaper publisher can use it to say anything he wants to, but others are not entitled to any access to it. It's simply private property, and not a forum of any sort.

authors:
Larry LessigDavid PostEugene Volokh



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