Under our precedents, the AETC debate was not a designated public forum. To create a forum of this type, the government must intend to make the property “generally available,” to a class of speakers. In Widmar, for example, a state university created a public forum for registered student groups by implementing a policy that expressly made its meeting facilities “generally open” to such groups. A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers.
These cases illustrate the distinction between “general access,” which indicates the property is a designated public forum, and “selective access,” which indicates the property is a nonpublic forum. On one hand, the government creates a designated public forum when it makes its property generally available to a certain class of speakers, as the university made its facilities generally available to student groups in Widmar. On the other hand, the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, “obtain permission” to use it.
Forbes (citations omitted).
II. Non-public Forum Rule
The debate's status as a nonpublic forum, however, did not give AETC unfettered power to exclude any candidate it wished. As Justice O'CONNOR has observed, nonpublic forum status “does not mean that the government can restrict speech in whatever way it likes.” To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property.
Forbes (citations omitted).
III. Justice Stevens Dissent (ad hoc, subjective decisionmaking)
The Court has decided that a state-owned television network has no “constitutional obligation to allow every candidate access to” political debates that it sponsors. I do not challenge that decision. The judgment of the Court of Appeals should nevertheless be affirmed. The official action that led to the exclusion of respondent Forbes from a debate with the two major-party candidates for election to one of Arkansas' four seats in Congress does not adhere to well-settled constitutional principles. The ad hoc decision of the staff of the Arkansas Educational Television Commission (AETC) raises precisely the concerns addressed by “the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.”
In its discussion of the facts, the Court barely mentions the standardless character of the decision to exclude Forbes from the debate. In its discussion of the law, the Court understates the constitutional importance of the distinction between state ownership and private ownership of broadcast facilities....
Like the Court, I do not endorse the view of the Court of Appeals that all candidates who qualify for a position on the ballot are necessarily entitled to access to any state-sponsored debate. I am convinced, however, that... constitutional imperatives command that access to political debates planned and managed by state-owned entities be governed by preestablished, objective criteria. Requiring government employees to set out objective criteria by which they choose which candidates will benefit from the significant media exposure that results from state-sponsored political debates would alleviate some of the risk inherent in allowing government agencies-rather than private entities-to stage candidate debates.
Forbes (Stevens, J. dissenting) (citations omitted)
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