Dispatches from the Creation Wars

Another Equal Access Case

And this one again involving a Good News Club, this time in Maryland. The Montgomery County Public Schools has a Good News Club chapter that uses school facilities for their meetings. In 2001, the group tried to use various fora provided by the school to promote the group, including in particular a take home flyer program that the school used, and allowed other groups to use, to send home information about activities that took place at the school but were not necessarily school sponsored (PTA events, scouting events, etc). The MCPS district refused to allow the Good News Club to use those forums, which prompted a lawsuit.

The district court originally dismissed the case, but the 4th circuit court of appeals overturned the dismissal and remanded the case back to the district court to hear the case. In the meantime, MCPS had rewritten their policy on access to such fora and the district court again dismissed the case, ruling that the new policy mooted the free speech concerns of the Good News Club. Today the 4th circuit court of appeals again reversed that dismissal. The case largely revolves around the issue of what kind of a forum the school was providing, which provides a good opportunity for understanding existing court doctrine in regard to free speech. I’ll let today’s ruling provide a rundown of existing case law:

The Supreme Court has recognized several types of forums. The first is the traditional public forum: “places which by long tradition or by government fiat have been devoted to assembly and debate,” such as streets and parks. In the traditional public forum, “the rights of the State to limit expressive activity are sharply circumscribed”; the state may only enact content-neutral “time, place, and manner” restrictions or content-based rules that are “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.”

A second type of forum — the nonpublic forum — consists of “[p]ublic property which is not by tradition or designation a forum for public communication.” Id. at 46. To maintain a nonpublic forum, the government must employ “selective access” policies, whereby forum participation is governed by “individual, non-ministerial judgments.” Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 680 (1998); see also Cornelius, 473 U.S. at 804. The government may be more restrictive in its regulation of speech in a nonpublic forum than in a traditional public one. In addition to the ability to enact contentneutral time, place, and manner restrictions, the government may also “reserve the [nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”

A third category lies in between, and is a hybrid of, the other two forums. This type of forum is “created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Cornelius, 473 U.S. at 802. It may be of either “a limited or unlimited character.” ISKCON, 505 U.S. at 678. The government cannot create such a forum “by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius, 473 U.S. at 802. The Supreme Court has sometimes referred to these intermediate forums as “designated public” forums, see, e.g., United States v. Am. Library Ass’n, Inc

Although the Court has never squarely addressed the difference between a designated public forum and a limited public forum, its most recent opinions suggest that there indeed is a distinction. In a limited public forum, the government creates a channel for a specific or limited type of expression where one did not previously exist. In such a forum, “the State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics,” subject only to the limitation that its actions must be viewpoint neutral and reasonable. Good News Club, 533 U.S. at 106-07 (quoting Rosenberger, 515 U.S. at 829) (internal quotation marks omitted) (alteration in original). In a designated public forum, by contrast, the government makes public property (that would not otherwise qualify as a traditional public forum) generally accessible to all speakers. In such a forum, regulations on speech are “subject to the same limitations as that governing a traditional public forum” — namely, strict scrutiny. ISKCON, 505 U.S. at 678-79.3.

To recapitulate, in a traditional public forum the government may only establish content-neutral “time, place, and manner” restrictions or content-based rules that are “necessary to achieve a compelling state interest” and are “narrowly drawn to achieve that interest.” A designated public forum is “subject to the same limitations as that governing a traditional public forum.” In a limited public forum, however, the government may restrict access to “certain groups” or to “discussion of certain topics,” subject to two limitations: the government restrictions must be both reasonable and viewpoint neutral. Finally, in a nonpublic forum the government may employ a “selective access” policy in which “individual nonministerial judgments” govern forum participation, again subject to the same two limitations: the policy must be reasonable and viewpoint neutral.

Thus, while the Constitution imposes more severe restrictions on government regulation of private speech in a traditional public forum or a designated public forum than in a limited public forum or a nonpublic forum, even in the last two categories, government restrictions on private speech must be both reasonable and viewpoint neutral.

This is a really good, brief but comprehensive review of the basic constitutional guidelines that the Court has laid out for access to the various types of forums that they have identified. The crux of this case came down to an argument over what type of forum the school district had created with their take home flyer program. MCPS not only argued that they had created a non-public forum and thus were only to be held to the lowest standard of reasonableness by the courts, but when they rewrote their policy in this regard after the first round of court proceedings they explicitly said that their intent was to create a “non-public forum”.

The appeals court, however, ruled that the type of forum created was determined not by the school district’s declaration of its intent, but by the nature of its actions:

Although the MCPS policy states that it intends to create a “nonpublic forum,” it is what the government does, and “the nature of the governmental property and its compatibility with expressive activity,” rather than self-serving statements, that a court examines in determining the nature of a forum. Cornelius, 473 U.S. at 802. MCPS created the new policy and has used the flyer forum to provide a method to facilitate, without disruption, communication of “informational material or announcements” from certain governmental speakers and community groups to parents of elementary school children. Thus, the take-home flyer forum would seem to be a limited public forum, i.e., a “public forum…created by government designation of a place or channel of communication…for use by certain speakers, or for the discussion of certain topics.”

The court went on to note, however, that even if it accepted that the take home flyer program was a non-public forum, their review of that program would still require that the restrictions on access not only be reasonable, but also be viewpoint neutral. And there, they found that the district court had not even applied the viewpoint neutrality standard that the precedents that it cites required:

The district court relied on Perry and Cornelius in concluding that the policy need only be reasonable. However, rather than “emphasiz[ing] that the standard for exclusion from the nonpublic forum was merely that of reasonableness,” as the district court believed, those cases make clear that viewpoint neutrality is required even in a nonpublic forum. See Cornelius (“Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purposes served by the forum and are viewpoint neutral.” (emphasis added)); Perry, 460 U.S. at 46 (holding that in a nonpublic forum “the regulation on speech [must be] reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view” (emphasis added)); see also Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 615 n.10 (1998) (Souter, J., dissenting) (“Like this case, Rosenberger involved viewpoint discrimination, and we have made it clear that such discrimination is impermissible in all forums, even nonpublic ones…”

Moreover, viewpoint neutrality requires not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints. See Bd. of Regents v. Southworth, 529 U.S. 217, 235 (2000) (directing remand as to one portion of a forum access policy (the student referendum for funding) because it was “unclear…what protection, if any, there is for viewpoint neutrality”); Santa Fe Indep. Sch. Dist., 530 U.S. at 304-05 (holding that “[l]ike the student referendum for funding in Southworth” the student election system at issue provided “insufficient safeguards [for] diverse student speech”)

Interestingly, the appeals court then accepted the MCPS argument that their new policy mooted most of the plaintiff’s complaint. However, the court ruled that the new policy still violated their free speech rights because the policy gave virtually unlimited authority to the school to reject any flyer that they objected to, for almost any reason they chose. This, the court ruled, was the hallmark of an unconstitutional policy:

CEF contends that the new policy does not provide such safeguards because it gives MCPS unfettered discretion to deny access to the take-home flyer forum for any reason at all — including viewpoint
discrimination. We find this argument compelling.

The Supreme Court has long held that the government violates the First Amendment when it gives a public official unbounded discretion to decide which speakers may access a traditional public forum. Such unbridled discretion threatens two specific harms in the First Amendment context. First, its existence, “coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.” Lakewood, 486 U.S. at 757. Second, “the absence of express standards” renders it difficult to differentiate between a legitimate denial of access and an “illegitimate abuse of censorial power.”

The danger of such boundless discretion, therefore, is that the government may succeed in unconstitutionally suppressing particular protected speech by hiding the suppression from public scrutiny. As the Supreme Court has explained, “[a] government regulation that allows arbitrary application…has the potential for becoming a means of suppressing a particular point of view.” Forsyth County, 505 U.S. at 130 (internal quotation marks omitted); see also Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (“[T]he danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.”).

Although the Supreme Court has not yet had occasion to apply the unbridled discretion doctrine outside the context of a traditional public forum, the dangers posed by unbridled discretion — particularly the ability to hide unconstitutional viewpoint discrimination — are just as present in other forums. Thus, there is broad agreement that, even in limited public and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment…

MCPS does not argue to the contrary. It does not assert that the unbridled discretion doctrine is for some reason inapplicable here. Nor does it argue that limitations on official discretion are unnecessary to safeguard against viewpoint discrimination. What MCPS does instead is somewhat mystifyingly contend that its policy “involves the complete absence of discretion” and that “now unlike before, MCPS does not include or exclude flyers based on its assessment of the viewpoints they express.” Brief of Appellee at 30 (emphasis in original). Although MCPS iterates and reiterates these sentiments throughout its brief, see, e.g., id. at 3, 12, 21, 22, 31, 33, and 37, the record offers scant support for them.

Indeed, the plain language of the policy belies these claims. The policy expressly provides MCPS with virtually unlimited discretion to control access to the flyer forum. First, as noted above, the policy endows MCPS with discretion to approve all flyers. The policy provides that MCPS “may approve . . . for distribution” flyers “from” or “sponsored or endorsed by” five groups of “listed organizations.” Moreover, the policy imposes no guidelines as to how MCPS should exercise this unlimited discretion. This unbridled discretion requires that we sustain CEF’s challenge to the policy.

All in all, a very interesting decision that really serves as an excellent primer on the subject of access to public forums and viewpoint discrimination. I hope you all took notes; there will be a test later.


  1. #1 Opiwan
    August 11, 2006

    The answer to all of your questions is 3, it’s just a matter of units to get it right! I know, I know… bad nerd joke.

  2. #2 kehrsam
    August 11, 2006

    Very solid opinion from Judge Motz. I imagine this opinion will be getting a lot of cites in the future.

  3. #3 Ed Brayton
    August 11, 2006

    I thought the opinion was unusually well written, particularly in its extremely thorough discussion of precedent and how it must be applied. That’s why I quoted so much of it.

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