Between Governance and Management: The History and Theory of the Public Forum

Abstract

In 1972, the United States Supreme Court introduced for the first time the concept of the "public forum" into first amendment jurisprudence. The concept enjoyed immediate success, and within twelve years had assumed the status of "a fundamental principle of First Amendment doctrine." In the process the concept evolved into an elaborate, even byzantine scheme of constitutional rules designed to ascertain when members of the general public can use government property for communicative purposes. In general outline, these rules focus tightly "on the character of the property at issue" in order to determine whether it is a "public or nonpublic" forum. If the property is a public forum, the government's ability to regulate the public's expressive use of the property is subject to strict constitutional limitations; if it is a nonpublic forum, the government is given great latitude in the property's regulation. Although public forum doctrine has developed with extraordinary speed, it has done so in a manner heedless of its constitutional foundations. The Court has yet to articulate a defensible constitutional justification for its basic project of dividing government property into distinct categories, much less for the myriad of formal rules governing the regulation of speech within these categories. These rules have proliferated to such an extent as to render the doctrine virtually impermeable to common sense. The doctrine has in fact become a serious obstacle not only to sensitive first amendment analysis, but also to a realistic appreciation of the government's requirements in controlling its own property. It has received nearly universal condemnation from commentators and is in such a state of disrepair as to require a fundamental reappraisal of its origins and purposes. This Article is intended as a modest step in that direction. The first section of the Article will trace the history of public forum doctrine with an eye toward uncovering the underlying values which have led the Court to back itself into its present uncomfortable position. The second section of the Article will assess the present condition of what Melville Nimmer, shortly before his untimely death, called the "complex maze of categories and subcategories" which constitute modern public forum doctrine. Almost none of the special rules characteristic of the doctrine can withstand analytic scrutiny. The third section of the Article will propose a constitutional theory that is responsive to the values which the history of public forum doctrine reveals have animated the Court, and the theory will in turn lead to a reformulation of the doctrine that is consistent with contemporary constitutional principles. To summarize this reformulation in a brief and somewhat Delphic manner, public and nonpublic forums should not be distinguished because of the character of the government property at issue, but rather because of the nature of the government authority in question. There are two kinds of government authority, corresponding to two distinct regimes of first amendment regulation. The first is what I call "managerial" authority, with which the state is characteristically invested when it acts to administer organizational domains dedicated to instrumental conduct. In such contexts the government may constitutionally regulate speech as necessary to achieve instrumental objectives. The second kind of authority can be termed that of "governance." It is characteristic of the authority which the state exercises over what Hannah Arendt has called the "public realm," : the arena in which members of the general public meet to accommodate competing values and expectations, and hence in which all goals or objectives are open to discussion and modification. The government's ability to restrict speech in the public realm is limited by ordinary and generally applicable principles of first amendment adjudication. If the government exercises the authority of governance over a resource which a member of the general public wishes to use for communicative purposes, the resource is a public forum. The resource is a nonpublic forum if it is subject to the managerial authority of government. The fourth section of the Article will discuss in detail the constitutional criteria that distinguish management from governance, and hence public from nonpublic forums.