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 • State can create limited public forum (subject matter/speakers) • Rules? • 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. Kokinda– when is a public forum not a public forum? • Why weren’t the post office sidewalks a public forum? • Does the opinion make sense? What are it’s implications? • When will a public forum no longer be a public forum? • Could the SCT have reached the same results and still have said sidewalks are a traditional public forum? • Are there ways of limiting it’s reach?

3. Rosenberger v. Rectors and Visitors of UVA • SAF created from mandatory student fees of students at UVA • Certain student groups are eligible to receive funds from SAF if they are “related to the educational purpose of the University” – includes student newspapers • Certain students groups’ activities are excluded from eligibility for SAF funds – religious activities, political activities (electioneering and lobbying) – the latter definition is designed to ensure that funding exclusions are not based on ideological status • WAP was denied funding for its newspaper because it was a religious activity – challenged the denial as violating freedom of speech

4. Rosenberger, cont’d • 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?

5. Government forums v. government speech • UVA also argued that its provision of fees to student groups did not create a forum of any kind. Rather it was an attempt to promote UVA’s own policy by appropriating government funds for particular speech – i.e., the “pot of student fees” was really being used to promote the university’s speech and not a public forum • To assess that argument, we must understand the rules regarding government’s ability to control content of its own speech. • Cases from Chapter 12 are important here.

6. Rust v. Sullivan – Government Speech • Title X provides grants to medical personnel and facilities for family planning services. • Gov’t regs attach conditions to receipt of federal funds: (1) no counseling re abortion as a method of family planning or referral to abortion as a method of family planning (even if asked), (2) no advocacy of abortion as a method of family planning, and (3) separate organization of Title X/abortion activities • Docs/Title X grantees challenged the law as a viewpoint based restriction on their speech. • SCT: Gov’t can . . . selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.

7. Rust v. Sullivan, cont’d • Surely government has a right to speak – e.g., anti-drug ads. Must it also run pro-drug ads? Can it hire another person to promote that VP? • Are docs receiving Title X funds just gov’t mouthpieces? • To what extent does gov’t speaking through private actors complicate the “gov’t speech” issue? Did the doctors receiving funds likely think they were mouthpieces of the gov’t? Was SCT right that they were? • Why can’t we simply just tell the doc to “walk away” from the $ if they don’t like the VP they must express? • Why doesn’t Rust (decided before Rosenberger) govern the UVA student fee case? Why did SCT use public forum principles instead of government speech principles to decide the case?

8. Legal Services Corp. v. Velazquez • LSC distributes congressional funds to local grantee organizations to “provide legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance” • Grantees hire and supervise lawyers • Congress imposed conditions on use of LSC funds – including a prohibition on attorneys hired with LSC funds from arguing to a court that a state statute conflicts with a federal statute or that state/federal statutes are unconstitutional. • Gov’t argued that the case was governed by Rust – i.e., that Congress disbursed govt funds to LSC attorneys to convey a government message and, thus, restriction was okay. • Why does SCT find this case distinguishable from Rust? • What characteristics, if any, distinguish this situation from Rust?

9. After Rust/Rosenberger/Velazquez, when can the government use money to promote a particular viewpoint? • Gov’t can spend money to use its own voice to espouse a certain message – i.e., purchase of public service ads • Gov’t can spend money to control what other speakers say (i.e., force them to promote a particular viewpoint) when those speakers are part of a gov’t program (Rust) • Corollary – gov’t does not have to fund all VP equally within its programs (can fund one viewpoint over another) • Problem - when gov’t speaks through third parties the line between gov’t and private speech is unclear – when is the speech the gov’ts and when it is the private speaker’s? • Problem – what is promotion versus suppression of a viewpoint? • Gov’t cannot control a speaker’s message merely because speaker has received gov’t money if that speech is not part of a gov’t program/message (Rosenberger/Velazquez) • Same problem re third parties as above • Also, with multiple recipients of money with varied voices – forum analysis may be something the court will look at