1. Majority Opinion (5-4)
a. No. The interschool mail system was a special type of
government property—neither a traditional nor a state created
forum—and the government can limit this property to its intended
purposes. The Court also held that the restriction on mailing is
content-neutral because it depends on the status, not viewpoint of an
officially-designated union (like the PEA).
b. The Court, in reaching its holding, set out three very
important categories of property and defined them: a traditional
public forum, a state-created public forum, and a property that is
neither one of these.
A traditional public forum: Places historically have been devoted to
assembly and debate. The rights of the state to limit expressive
activity in these places are sharply circumscribed. These places
include streets and parks. For the State to enforce a content-based
exclusion, then it must pass strict scrutiny (the State must show
that its regulation is necessary to serve a compelling state interest
and that it is narrowly drawn to achieve that end). Examples of a
compelling state interest for content-based regulation of speech
would be “fighting words,” discussing national security interests,
etc. For the state to enforce content-neutral regulations—time,
place, and manner of expression—then the regs must pass heightened
scrutiny (they must be narrowly tailored to serve a significant
government interest) AND leave open ample alternative channels of
communication. An example of such content-neutral regs would be no
rally in the street (since this would disrupt traffic), no rally
early on weekday mornings (since this could distract morning traffic
and lead to traffic jams), no rally while another demonstration is
going on (for security reasons), etc.
State-created public forum: This is public property which has not
been traditionally devoted to assembly or debate, but which the state
has opened up for use by the public as a place for expressive
activity. Examples include school board meetings, municipal
theaters, etc. If the forum has been generally open to the public,
the state cannot create any content-based prohibitions unless it
meets the same strict scrutiny test that traditional state forums
must meet. But a state-created forum can be limited to certain
groups of the public—as long as the forum was originally created for
these limited groups—such as parents of school children only being
allowed to attend the school board meeting. Reasonable time, place,
and manner regulations are permissible. Once a state-created public
forum has been created, the state can close the entire forum (another
difference between this and a traditional public forum).
1. Dave says it can sometimes be difficult to distinguish a
state forum from a traditional public forum. What is the “West Mall”
on the UT campus?
2. Madison JOINT School District dealt with a state-created public
forum. The District originally had school board meetings
open to the general public. The District then tried to narrow the
school board meetings to exclude. The Sup. Ct. held that this was
unconstitutional because the meetings, which were state-create public
forums, were originally opened to the general public and cannot be
narrowed unless the limitation is content-neutral (time, place, and
manner) or, if content-based, there is a compelling interest. But
had the meetings been narrowed to certain groups in the first place
(even if content-based), then there would have been no First Am.
Forum neither traditional nor state-created: This is public property
which is not by tradition or designation a forum for public
communication. Examples include jails, military bases, interschool
mails, etc. The state can impose content-neutral regulations—such as
time, place, and manner restrictions on speech—and can reserve the
forum for its intended purposes (i.e., allow a military base to
include only speech about the military). But the state cannot have
content-based restrictions on speech, even in this kind of forum,
unless they pass “strict scrutiny.” Thus, a military base cannot
have a content-based restriction such as, “Any speech regarding the
Democrats is not allowed,” since this is in no way related to the
purpose of the base.
c. The Court held that the interschool mailing system was
neither a traditional nor state-created forum. There is no
indication that the school mailboxes and interschool delivery system
are open for use by the general public. It is true that some outside
organizations, such as the YMCA, Cub Scouts, and other civic
organizations used the delivery system, this does not transform
government prop into a public forum (since the general public must
d. The school’s allowing the PEA in 1977 to exclusively use its
interschool mailing system does not constitute viewpoint
discrimination. The school gave the PEA and not the PLEA this
exclusive use because of its status as the union representing the
teachers rather than on that union’s views.
e. Giving this exclusive use to the PEA is reasonable because it
relates to the intended use of the property. Use of school mail
facilities enables PEA to perform effectively its obligations as
exclusive reps of all the teachers and also allows for labor peace.
Since PLEA, unlike PEA, does not have official responsibility in
connection with the District, the PLEA need not be entitled to the
same rights of access to the interschool mailing system.
f. Finally, substantial alternative channels remain open for
union-teacher communication to take place. The PLEA can use
bulleting boards, the U.S. mail, etc.
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