Public Forums

The agora of ancient Athens, the city’s public marketplace and ad hoc civic center, was where democracy began. The gathering place for public discussion, it was also the focal point for decision making by the assembly, open to all male Athenians older than eighteen years of age. In Roman law a forum (Latin for marketplace) was a paved court where public business was transacted and elections and trials were held. Thus a place in which to make and listen to political speeches and to voice complaints about the government—a public forum—has been essential since the beginning of democracy.

At the time of the Constitutional Convention of 1787 in Philadelphia, the United States already encompassed an extensive amount of territory, making impractical a single public forum for political debate accessible to all citizens. The idea of Representative Government that had developed in England allowed some citizens to be chosen by the rest of the citizenry to meet in one place—the nation’s capital (see Capital, National)—to carry out the decision-making functions on their behalf. But the concept of public forums for the exchange of political ideas and information was still important at the national, state, and local levels to further the American form of representative democracy established by the Constitution.

Public places—streets, municipal buildings, and public parks—are traditional forums where people may assemble and discuss and protest government policy. The First Amendment (1791) rights of free speech and assembly (see Assembly and Association) by those who wish to use public spaces as public forums must be balanced against the legitimate needs of the government and the rights of the public at large, a basic conflict resolved on a case-by-case basis.

In Davis v. Massachusetts (1897), the Supreme Court affirmed a Massachusetts Supreme Court decision in which Justice Oliver Wendell Holmes Jr. said that banning or limiting public speaking in a highway or public park “is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” This deference to government ownership of public property lasted until 1939, when in Hague v. CIO the Court struck down a New Jersey ordinance that prohibited public assemblies “in or upon public streets, highways, public parks, or public buildings” without a permit. Using the due process clause of the Fourteenth [Page 440] Amendment (1868) to extend protection of the right to use public property as a public forum, the Court indicated that U.S. citizenship would have little meaning if natural persons—not artificial or legal entities—could be denied the right to discuss national legislation and its benefits, advantages, and opportunities.

In Cornelius v. NAACP Legal Defense and Educational Fund, Inc. (1985), the Supreme Court denied the National Association for the Advancement of Colored People the right to solicit contributions from federal employees through the Combined Federal Campaign, a vehicle for charity contributions approved by the federal government for its employees and devised to exclude any soliciting, particularly separate soliciting. The 4–3 majority declared that neither the federal workplace nor the campaign had been designated as a public forum. The Court did remand the case for a determination of whether the NAACP had been excluded because the government disagreed with the NAACP’s particular viewpoint.

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