Restricting Speech in the Traditional Public Forum: Defining the Forum
The issue: What sorts of restrictions on speech may the government impose on public sidewalks, parks, and other places
 making up what is called "the traditional public forum"?

The Supreme Court has developed a tripartite categorization of public spaces where expressive activities may take place.  Different First Amendment issues arise in each of the three categories of public spaces.

The three categories of public spaces identified by the Court are (1) the traditional public forum, (2) the designated public forum (which might be either “limited” or “unlimited”), and (3) the non-public forum.  This page will consider how the Court has defined the traditional public forum, and how it has applied the First Amendment to regulations restricting speech in the traditional public forum.


Our first case, Hague v CIO (1939), considers an ordinance which gave a city official the discretion to decide whether an organization seeking to hold a meeting in public spaces in the city would be allowed to do so.  Whenever the official concluded that the meeting posed a risk of disturbances, he could reject the request.  The Court ruled the law void on its face.  The Court said, "Streets and parks...have immemoriably been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues.  Such use has, from ancient times, been part of the privileges, immunities, and liberties of citizens." Some justices concluded that the law violated the Fourteenth Amendment’s privileges and immunities clause, while  Justice Stone argued that law violated the First Amendment, as incorporated.

In another set of cases decided that same year, the Court struck down ordinances banning leafletting--justified as a means of preventing littering--on city streets and sidewalks (Schneider v State).  The Court indicated in Schneider that when it comes to restrictions on speech in a traditional public forum, it will not be enough for the government to show that its ban is content-neutral. 

Frisby (1988), Kokinda (1990), and Int'l Society for Knisna Consciousness v Lee (1992) all consider what places shall be considered part of the traditional public forum.  Frisby involved an ordinance banning picketing "before or about" any residence.  The ordinance was challenged by pro-life demonstrators who had picketed in front of an abortion doctor's suburban home.  Although Justice Stevens argued that streets in residential areas should be considered outside of the traditional public forum, the Court majority disagreed, saying it didn't want to get into "a particularized inquiry about the nature of the street." (Nonetheless, the Court upheld the ban on residential picketing, concluding that it served the important interest of protecting residential privacy.) 

Kokinda (a case argued for the government by now Chief Justice John Roberts) involved a challenge to Post Office rules that prohibited solicitation on a sidewalk leading only from a parking lot to the post office.  Four members of the Court argued that a sidewalk used only by people on their way to conduct post office business falls outside the traditional public forum.  Five members of the Court--warning again of the dangers of "particularized inquiries"--thought that the sidewalk was within the traditional public forum.  (The Court, however, left the solicitation ban in place when one of the five justices (Kennedy) accepting the broader view of what constitutes the public forum joined four colleagues with the narrower view in voting to uphold the ban.) 

Int'l Society for Knisna Consciousness v Lee offers us the Court's most interesting discussion of how the public forum should be defined.  At issue, was how to categorize the concourse area of airports, a place long used by members of the Krisna religion to distribute literature and solicit funds.  Chief Justice Rehnquist and four other members of the Court took the limited view that only places that "have time out of mind" been used for expressive activities should be within the definition of the forum.  His focus on traditional use, as well as the principal purpose of the public space (here, to facilitate transportation, not to be a spot for expressive activities) led him to conclude that the airport concourse was not part of the traditional public forum.  Justice Kennedy and three other justices took issue with Rehnquist's forum analysis.  They suggested instead a more objective "functional test."  Noting that airports today look a lot like Main Streets of old, that airports are open to the public, and that the operation of airports is compatible with many kinds of expression, Kennedy argued that the airport concourses should be considered part of the most speech-protected public forum.  (Swing Justice O'Connor, after joining Rehnquist's forum analysis, nonetheless voted to strike down the airport ban on leafletting--while voting to uphold the ban on solicitation--giving the Krisnas a 5 to 4 split decision.)

Sign in California's Muir Woods,
a unit of the National Park Service
(thanks to Stacey Wullschleger)



Hague v CIO (1939)
Frisby v Schultz (1988)
United States v Kokinda (1990)
Int'l Society for Krisna Consciousness v Lee (1992)

Anti-abortion protesters in a traditional public forum, parkland in front of the U. S. Capitol Building.

American Nazi Party members demonstrate in Daley Center Plaza in Chicago in 1977.


1. Examine closely the different approaches to defining the traditional public forum.  Do you agree that all public streets, sidewalks, and parks should be considered part of the public forum, or would you favor a more particularized balancing that looks at whether the street, sidewalk or park has been dedicated to a limited, non-expressive purpose (as four justices concluded about the sidewalk leading from the parking lot to the post office in Kokinda)? 
2.  Do you favor the traditional use/purpose approach to defining the traditonal public forum (as in the Rehnquist opinion in Lee) or the functional analysis suggested in the Kennedy opinion? Why?
3.  In Hague v CIO, the Court rests its invalidation of the ordinance forbidding meetings without a permit on the privileges and immunities clause rather than the free speech clause, as incorporated through the Fourteenth Amendment's due process clause.  If the Hague approach had been followed in subsequent cases, what would have been the major consequence?  (Note that the privileges and immunities clause only protects U. S. citizens, not all persons.)
Challenging Speech Restrictions in the Public Forum: Procedural Issues

Martin Luther King under arrest.

Walker v Birmingham (1967)

Walker considered whether civil rights demonstrators in Birmingham in 1963 had a constitutional right to march in defiance of a state court's injunction.  By a bare majority, the Court upheld contempt convictions against the civil rights demonstrators, concluding that they had an obligation to appeal the court's order before marching--even if the permit ordinance they were ordered to comply with violated the First Amendment (the Court later, in Shuttlesworth v Birmingham (1969), struck down the Birmingham ordinance) and they had no realistic chance of obtaining a permit.  The Court said only when an ordinance is "transparently invalid" (not merely invalid) can one raise the invalidity of the ordinance as a defense in a contempt case.  The four dissenters complained that the Court's decision "magically transforms the command of an unconstitutional statute into an unpregnable barrier."

Martin Luther King's Letter from the Birmingham Jail
[ King's eloquent statement on civil disobedience, written while he was in jail, convicted of contempt of court for violating an Alabama court's injunction against demonstrating.  The convictions of King and others were upheld, 5 to 4, in Walker v Birmingham.]

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