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When are traditional public forums no longer traditional public forums?

When are traditional public forums no longer traditional public forums?. Kokinda , Summum , Boardley & Berger – suggest courts approach this issue somewhat differently.

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When are traditional public forums no longer traditional public forums?

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  1. When are traditional public forums no longer traditional public forums? • Kokinda, Summum, Boardley & Berger – suggest courts approach this issue somewhat differently. • Do some of these courts contemplate that the “tradition” rhetoric of Hague should be used to determine whether parks are traditional public forums in all circumstances? • Summum, p. 200; Boardley, p. 200 • What are the implications of that approach? • Does it apply to different kinds of parks? Different kinds of speech? • Would the courts be better served to recognize parks as public fora and approach the issue of limiting speakers from a TP&M standpoint?

  2. National monuments as forums • Should the inside of a national monument be considered a public forum or a non-public forum? • Has the government’s decision to preserve it as a place of public commemoration turned it into a non-public forum? • Is expression inconsistent with the purpose of the forum? • Is the desire to preserve “solemnity” at a monument viewpoint neutral? Is it achieved only by excluding expression? • How can we regulate speech to ensure adequate access to monument and adequate expression by speakers? • Does theOberwettercourt’s reasoning suggest that government can close declare spaces as “non-public” forums and then claim them as “permit-free” zones where NO speech can take place since that is viewpoint neutral?

  3. Christian Legal Society v. Martinez • Cal-Hasting Law School required students groups wanting to be RSOs (receive funds and other benefits) to adhere to school’s anti-discrimination/all-comers policy. Policy required that RSO’s allow any student to become member/leader of an organization. • CLS challenged the policy as violating 1A right to associate(among others) persons who shared its religious faith and ascribed to certain principles and conduct. • SCT found that all-comers policy was best judged through the lens of “forum analysis” • RSO access is a limited public forum • All comers condition on access is reasonable and content-neutral • Is forum analysis the right analysis to use here?

  4. CLS & limited public forums • SCT now seems to accept a distinct 4th category – the limited public forum: What rules apply here? • Not entirely clear but this might be an adequate summary. • When gov’t opens a forum but limits it to certain speakers & topics, the forum parameters are constitutional if they are reasonable and viewpoint neutral. • When the State applies the forum criteria and excludes a speaker based on the subject matter of his speech, the exclusion need only be “reasonable in light of the purposes served by the forum” and viewpoint neutral. But after Rosenberger SCT may review exclusion of religious viewpoints more strictly. • If gov’t opens a forum but excludes a speaker whose speech obviously falls within the subject matter constraints of the forum, the exclusion is subject to strict scrutiny.

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