Perry’s tri-partite forum analysis

1. Perry’s tri-partite forum analysis • Traditional Public Forum • Streets, Parks & Sidewalks • CB/CN rules apply • Designated/Public Forum • State need not open up such property for use for expressive purposes but once it does, it must abide by the same rules as in a traditional public forum • Perry note 7 limited forum – state can limit access by speaker or subject matter • What rules apply then? • Non-Public Forum • State has a right to reserve property for its intended use. Regulations of speech will be upheld as long as they are reasonable and not an effort to suppress a particular viewpoint

2. Rosenberger v. Rectors and Visitors of UVA • SAF created from UVA students mandatory fees. Certain student groups eligible to receive funds from SAF if “related to the educational purpose of the University” – included student newspapers • Certain students groups’ activities excluded from eligibility for SAF funds – religious activities, political activities (electioneering and lobbying) • Religious activity = any activity that primarily promotes or manifests a belief in or about a deity or an ultimate reality • WAP was denied funding for its newspaper because it was a religious activity – challenged the denial as violating freedom of speech • What kind of forum is the SAF? Limited or non-public? Why? • Why doesn’t the exclusion of some speakers make this a non-public forum as was the case in Cornelius? • What kind of exclusion is the exclusion of “religious activity” – VP or SM? Why does it matter?

3. ISKCON v. Lee – the opinions • Rehnquist, White, Scalia, Thomas, O’Connor – airport is a non-public forum because officials have not intentionally opened it for expressive purposes • R, W, S, T – restrictions on solicitation/leafleting are reasonable • O’C – restrictions on solicitation reasonable/leafleting unreasonable • Kennedy, Blackmun, Stevens, Souter – airport is a limited public forum • K – restrictions on solicitation survive TPM scrutiny; restrictions on leafleting don’t • S,B,S – restrictions on solicitation & leafleting unconstitutional under TP&M analysis

4. ISKCON v. Lee – Rehnquist and forum issues • Rehnquist’s majority opinion suggests that the traditional public forum isn’t necessarily limited to streets, parks and sidewalks. Under his analysis, what other property could fall into this category? • “Principal purpose for the free exchange of ideas” • “For time immemorial has been held in the public trust & used for expressive activity” • How often will property fall into the “limited public forum” category under Rehnquist’s analysis? • Has it been intentionally opened for purposes of public discourse • Where should an “airport” fall in terms of use for expressive purposes? • Keeping in mind that in 1992 airports REALLY were open to the general public – unlike now.

5. Justice Kennedy’s approach to forum issues • If the objective, physical characteristics of the property at issue and the actual public access and uses that have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum. • The most important considerations are: • Whether the property has shared physical similarities with more traditional public forums; • Whether the government has permitted or acquiesced in broad public access to the property; • Whether expressive activity (in general) would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property • Whether reasonable time, place, and manner restrictions are available as an alternative to wholesale bans on access

6. Solicitation v. Leafleting • Aside from the leafleting issue, the Justices split on whether the ban on soliciting should be treated differently from the ban on leafleting. • Is there a tenable distinction between the two that justifies the different outcomes? Does solicitation interfere more with the airport’s interest than leafleting? • Note that Kennedy reaches the same conclusion as O’Connor even though he uses TP&M analysis while O’Connor uses non-public forum “reasonableness” analysis. Is that significant?