Justice Kennedy and the Ideal of Equality

Abstract

We can see that content based discriminations--reserving Tuesday for a health care debate and Wednesday for a welfare reform debate--is in some contexts more permissible than viewpoint based discriminations. We can see that a working democracy requires not merely negative protection against state censorship, but also affirmative government action to promote free speech--to create the Town Hall or Assembly Room or other Public Forum where the freedom of speech can occur. ... Our public forum doctrine ought not to be a jurisprudence of categories rather than ideas, or convert what was once an analysis protective of expression into one which grants the government authority to restrict speech by fiat . . . .Public spaces and thoroughfares that are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of property. ... It must nurture the public forum. ... And this is a public forum about which Justice Kennedy has had a lot to say. ... The principal [also] chose the religious participant, here a rabbi [Third, via his guidelines and advice] the principal directed and controlled the content of the prayer. ... Even if affirmative action in other contexts (like contracting set-asides) is unconstitutional, might education be different, as a special public forum, permitting special sensitivity to "marginal voices," to use Justice Kennedy's own phrase? ...