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 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."