First Amendment Fall 2025: Week Nine Assignments (October 22)

 Just Finish up this:

--Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District; Cohen v California

Justice Kennedy in Forbes: Is Less Speech More?

 Justice Kennedy in Forbes says less speech is sometimes more (p. 1496):

"The . . . distinction between general and selective access furthers First Amendment
interests. By recognizing the distinction, we encourage the government to open its
property to some expressive activity in cases where, if faced with an all-or-nothing
choice, it might not open the property at all. That this distinction turns on governmental
intent does not render it unprotective of speech. Rather, it reflects the reality that, with
the exception of traditional public fora, the government retains the choice of whether to
designate its property as a forum for specified classes of speakers."

 

Notice also how Justice Kennedy sneaks into his majority opinion a new definition for discovering new traditional public fora (p.1496):

 "In summary, traditional public fora are open for expressive activity regardless of the government’s intent. The objective characteristics of these properties require the government to accommodate private speakers. The government is free to open additional properties for expressive use by the general public or by a particular class of speakers, thereby creating designated public fora. Where the property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all."

Forbes Case (p. 1493)

I. Designated vs. Non-public Fora (p.1496)

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 (p.1497)

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) (p. 1497

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)

Kneeling During National Anthem at Homecoming Game

 Suppose at a particular high school in California a group of conservative Christian football players and cheerleaders announce that they will take a knee at Homecoming Game during the pre-game National Anthem to protest the pro-abortion policies of the current Governor 

They are warned by school officials not to do so, and when they ignore the warnings and take a knee at the Homecoming Game they are suspended for 3 days and expelled from the football team and the cheer squad.

Apply the first amendment as developed in Tinker, Fraser, Hazlewood, and Morse.

Would it matter that the school has permitted players and cheerleaders to take a knee at games in support of Black Lives Matter?

Tinker vs. Hazelwood Explained

 Casebook at p. 1534:

“The question whether the First Amendment requires a school to tolerate particular student speech – the question that we addressed in Tinker – is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.  The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises.  The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”

 And this at id: 

"Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.. . . It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment . . . require[s] judicial intervention to protect students’ constitutional rights."

Does Hazelwood also explain Fraser? Was Fraser a "school-sponsored" assembly designed to teach students about democracy and civility?