Also known as: open forums · public forum
Written by attorneys — see sources below.
A government-owned space or facility opened for expressive activity by the public or designated groups. Content-based restrictions on speech in such a space are subject to strict scrutiny under the First Amendment and are presumptively invalid.
Odessa Okada stands on a public sidewalk near a foreign embassy holding a sign criticizing the embassy's home government. City police cite her under an ordinance that bars only signs critical of foreign governments within 500 feet of embassies. The restriction singles out her message for prohibition while allowing supportive or unrelated signs in the same location.
Odin Obeng erects a large Latin cross on the state-owned plaza in front of the capitol during the holiday season. State officials deny the permit solely because the display is religious. The plaza has long been used by private groups for speeches, rallies, and seasonal exhibits without content screening.
Capitol Square is a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio. For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Ohio Admin. Code Ann. § 128-4-02(A) (1994) makes the square available for use by the public for free discussion of public questions or for activities of a broad public purpose, and Ohio Rev. Code Ann. § 105.41 (1994) gives the Capitol Square Review and Advisory Board responsibility for regulating public access. To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and noninterference with other uses of the square, and which are neutral as to the speech content of the proposed event. In November 1993, after authorizing a state Christmas tree and granting a rabbi's application for a menorah, the Board received an application from respondent Donnie Carr of the Ohio Ku Klux Klan to place a cross on the square from December 8 to December 24, 1993. The Board denied that application on December 3, informing the Klan by letter that the decision to deny was made upon the advice of counsel in a good faith attempt to comply with the Ohio and United States Constitutions. Two weeks later, the Ohio Klan, through its leader Vincent Pinette, filed suit in the United States District Court for the Southern District of Ohio seeking an injunction requiring the Board to issue the requested permit. The District Court determined that Capitol Square was a traditional public forum open to all without any policy against freestanding displays, that the Klan's cross was entirely private expression entitled to full First Amendment protection, and that the Board had failed to show that the display of the cross could reasonably be construed as endorsement of Christianity by the State. The District Court issued the injunction, after which the Board permitted the Klan to erect its cross, and later entered summary judgment in the Klan's favor. On appeal by the Board, the United States Court of Appeals for the Sixth Circuit affirmed the District Court's judgment. The Supreme Court granted certiorari to consider whether the State’s denial of the Klan’s application to display its cross on Capitol Square was a denial of equal access in violation of the First Amendment and whether the State’s asserted justification for the denial—that it had a compelling interest in avoiding an appearance of endorsement of religion under the Establishment Clause—could be sustained.
View caseOliver Okeke submits an article to a university-funded student publication that discusses religious viewpoints on contemporary moral issues. University administrators refuse to pay the printing costs because the piece advances a religious perspective. The university routinely funds other student journals that address political and social topics.
The University of Virginia, an instrumentality of the Commonwealth of Virginia, maintains a Student Activities Fund financed by a mandatory $14 per semester fee assessed to each full-time student. The fund supports extracurricular student activities related to the University's educational purpose through payments to third-party contractors for approved groups that qualify as Contracted Independent Organizations. To obtain CIO status, a student group must be composed primarily of University students, file its constitution, pledge nondiscrimination, and agree to a disclaimer stating that it is independent of the University. CIO publications are eligible for printing-cost reimbursement if their content is related to the University's educational purpose, but the Guidelines expressly exclude funding for any activity that primarily promotes or manifests a particular belief in or about a deity or an ultimate reality. In 1990, University of Virginia undergraduates formed Wide Awake Productions as a CIO and began publishing Wide Awake: A Christian Perspective at the University of Virginia. The first issue contained articles on racism, crisis pregnancy, prayer, C. S. Lewis, and reviews of religious music, each marked by a cross; subsequent issues addressed homosexuality, missionary work, eating disorders, and Christian theology, with advertisements from churches and Christian bookstores. In 1991, Wide Awake Productions requested $5,862 from the Student Activities Fund to cover printing costs for one issue. The Appropriations Committee of the Student Council denied the request on the ground that the publication constituted a religious activity under the Guidelines. Wide Awake Productions appealed the denial through the Student Council and the Student Activities Committee, which upheld the decision. The group and three of its student editors and members then filed suit in the United States District Court for the Western District of Virginia under 42 U.S.C. § 1983, alleging that the refusal to pay printing costs violated their rights under the First Amendment Speech, Press, and Free Exercise Clauses and the Equal Protection Clause. On cross-motions for summary judgment, the District Court ruled for the University. The United States Court of Appeals for the Fourth Circuit affirmed, and the Supreme Court granted certiorari.
View caseOscar Ortiz produces a documentary critical of a sitting senator and seeks to air it through a nonprofit advocacy group within thirty days of an election. Federal election officials block distribution under rules that prohibit corporations from using general treasury funds for electioneering communications. The same rules permit individuals and media organizations to distribute comparable material.
Citizens United is a nonprofit corporation with an annual budget of about $12 million. Most of its funds come from donations by individuals, though it accepts a small portion from for-profit corporations. In January 2008, Citizens United released a 90-minute documentary film entitled Hillary: The Movie. The film mentions Senator Hillary Clinton by name and depicts interviews with political commentators, most of them critical of her. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making the film available through video-on-demand. In December 2007, a cable company offered to make Hillary available on a video-on-demand channel called Elections '08 for a payment of $1.2 million. The proposal was to make the film available to viewers free of charge. To promote the video-on-demand offering, Citizens United produced two 10-second ads and one 30-second ad. Each ad includes a short statement about Senator Clinton followed by the name of the movie and the movie's website address. Citizens United desired to promote the offering by running the advertisements on broadcast and cable television within 30 days of primary elections. Before the Bipartisan Campaign Reform Act of 2002, federal law prohibited corporations from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of a candidate in connection with certain federal elections. BCRA §203 amended the law to prohibit any electioneering communication. An electioneering communication is any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office and is made within 30 days of a primary or 60 days of a general election when publicly distributed so that it can be received by 50,000 or more persons in a relevant state. Concerned about possible civil and criminal penalties for violating 2 U.S.C. §441b, Citizens United filed suit in the United States District Court for the District of Columbia in December 2007. It sought declaratory and injunctive relief, arguing that §441b is unconstitutional as applied to Hillary and that BCRA's disclaimer, disclosure, and reporting requirements are unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United's motion for a preliminary injunction and granted the Federal Election Commission's motion for summary judgment. The Supreme Court noted probable jurisdiction. The case was reargued after the Court requested supplemental briefs addressing whether Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. Federal Election Commission should be overruled.
View caseOctavia Okonkwo publishes a monthly magazine devoted to religious commentary and seeks the same sales-tax exemption granted to other nonprofit periodicals. State officials deny the exemption because the content is religious. Secular publications addressing political and social issues receive the exemption without regard to viewpoint.
In 1982 Texas enacted a sales and use tax exemption for periodicals published or distributed by a religious faith and consisting wholly of writings promulgating the teaching of the faith, along with books consisting solely of writings sacred to a religious faith, under Tex. Tax Code Ann. § 151.312. Prior to October 2, 1984, Texas also exempted magazine subscriptions running half a year or longer and entered as second class mail. That general exemption was repealed effective October 2, 1984, and remained repealed until October 1, 1987. During the three-year interval, Texas Monthly, Inc., which publishes a monthly general interest magazine not limited to religious teachings, was required to collect and remit sales taxes on its qualifying subscription sales. Texas Monthly paid $149,107.74 in sales taxes under protest in 1985 and filed suit in the District Court of Travis County, Texas, seeking a refund of those payments. The district court ruled that the religious periodicals exemption had no basis other than the promotion of religion itself. The court also found that the exemption discriminated on the basis of publication content. It declared the tax unconstitutional as applied to nonreligious periodicals and ordered the State to refund the amount paid plus interest. The Court of Appeals, Third Supreme Judicial District of Texas, reversed the district court's judgment by a 2-to-1 vote. The Court of Appeals applied the tripartite test from Lemon v. Kurtzman. It concluded that the exemption served a secular purpose of preserving separation between church and state, did not have the primary effect of advancing or inhibiting religion, and did not produce impermissible government entanglement with religion. Therefore the Court of Appeals upheld the exemption. The United States Supreme Court noted probable jurisdiction to consider the constitutionality of the exemption.
View caseOrla O'Malley and fellow demonstrators stand on a public sidewalk 1,000 feet from a funeral carrying signs that condemn the deceased's lifestyle and the nation's policies. The family sues for intentional infliction of emotional distress. The protest occurs in a traditional public forum and addresses matters of public concern without physical obstruction of the ceremony.
Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His father, Albert Snyder, arranged for the funeral to be held in Westminster, Maryland. Members of the Westboro Baptist Church, an unincorporated association founded by Fred Phelps, learned of the funeral through local newspapers and decided to picket it to communicate their belief that God punishes the United States for its tolerance of homosexuality. On the day of the funeral, Westboro members displayed placards on public land approximately 1,000 feet from the church where the service was held. The signs included messages such as "God Hates the USA," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You’re Going to Hell," and "God Hates Fags." The picketing took place for about 30 minutes before the funeral began. The funeral procession passed within 200 to 300 feet of the picketers. Church members also posted an online "epic" that discussed Matthew Snyder’s funeral and criticized his parents. Albert Snyder filed a diversity action in the United States District Court for the District of Maryland against Fred Phelps, his daughters, and the Westboro Baptist Church. The suit alleged claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury found for Snyder and awarded $2.9 million in compensatory damages and $8 million in punitive damages. The district court reduced the punitive damages award to $2.1 million but left the verdict otherwise intact. The Fourth Circuit reversed the judgment, holding that Westboro’s statements were protected by the First Amendment. The Supreme Court granted certiorari to review whether the First Amendment shields the church members from tort liability for their picketing speech.
View caseStrict scrutiny applies. The government must show that the restriction is narrowly tailored to serve a compelling interest, and content-based exclusions are presumptively invalid.
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An open forum is a space the government has opened for expressive activity by the public or designated groups. A nonpublic forum is not opened for such activity, so the government may impose reasonable, viewpoint-neutral restrictions.
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No. Once the government opens a forum to speech on a particular subject, it may not exclude religious viewpoints on that subject without satisfying strict scrutiny.
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Yes, if the restriction is content neutral, narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication.
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…e. g. , Marks v. United States , 430 U. S. 188, 198 (1977) (Stevens, J., concurring in part and dissenting in part), and "public forum," see, e. g. , United States Postal Service v. Council of Greenburgh Civic Assns. , 453 U. S. 114, 126-131 (1981); id. , at 136-140 (Brennan, J., concurring in judgment); id. , at…