Academic journal article Harvard Law Review

Strict Scrutiny in the Middle Forum

Academic journal article Harvard Law Review

Strict Scrutiny in the Middle Forum

Article excerpt

I. INTRODUCTION

It is perhaps no exaggeration that "the story of the First Amendment is the story of the public forum doctrine." (1) Stated in its simplest form, forum analysis requires a court first to categorize a location (or forum) to which a speaker seeks access for the purpose of expressive activity, and then to analyze the government's restriction on speech against the constitutional standard that governs in that forum. (2) The preeminent benefit of forum analysis is that it provides an overarching structure in place of what would otherwise be a neverending series of ad hoc tests balancing the government's control over its own property against an individual's right to free expression. (3) Without a baseline expectation that free expression on public property is appropriate, such balancing tests tend to favor the government. (4) Indeed, one of the greatest problems within First Amendment jurisprudence is courts' inability to recognize the long-term value of protecting individual expression when faced with more immediate governmental interests. (5) Forum analysis not only provides a procedure for analyzing speech problems, but also includes the substantive recognition that not all government interests are of equal value nor should they always override expressive activity. Tying speech rights to the geographic or functional characteristics of the forum creates shared expectations about the type of expression that will be allowed, and thus reduces the danger of chilled speech that can arise from ambiguity over what will be permitted. (6) Similarly, state actors can be confident that by opening up a location for some manner of free expression, they are not therefore losing all control over what is said within a forum for all time.

Despite these benefits, however, ever since the first formal categorization of the three types of fora--the public forum, the middle forum, and the nonpublic forum--were described in Perry Education Ass'n v. Perry Local Educators' Ass'n, (7) courts (8) and commentators (9) alike have attacked forum analysis as an excessively semantic and complex judicial invention that supplants a sensible balancing approach with myriad irrelevant categorizations. These critiques are powerful, and in recent years, forum analysis has become a muddled area of First Amendment jurisprudence. (10) This confusion is troubling not merely for courts trying to apply the doctrine, but also for individuals seeking to exercise their right of free expression. As public speech shifts from traditional locations such as streets and parks to harder-to-define realms such as the internet, the need for a flexible and finely tuned doctrine to balance free expression with the government's reasonable need to regulate becomes even more pressing.

This Note argues that, with an important modification to the existing doctrine, forum analysis should continue to occupy a central role in First Amendment analysis because it provides the most coherent means of balancing the government's interest in excluding nongovernmental expressive activity on its property with the individual right of free expression in government settings. The doctrinal modification seeks to remedy one of the greatest failings of forum analysis: the substantial confusion that arises from the nebulous middle category of forum. Indeed, even settling upon a term to describe the middle forum generates substantial confusion; it is unclear whether there is a single middle forum category, several subcategories, or whether a forum can be designated one way for one class of speakers and another way for others. (11) Part II of this Note outlines the historical development of forum analysis and demonstrates that though earlier jurisprudence seemed to recognize the middle forum as a place the government had opened up to free expression, Rosenberger v. Rector & Visitors of University of Virginia (12) signaled a shift toward a more limited concept of the middle forum as a place reserved only for specific types of expression. …

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