D. The Public Forum Doctrine

The Supreme Court has held that the test applicable to government restrictions upon speech differs depending upon the nature of the forum where the speech occurs.  This is known as the “public forum doctrine” and is discussed in Perry below.

103 S. Ct. 948.

Supreme Court of the United States.

PERRY EDUCATION ASSN., Appellant

v.

PERRY LOCAL EDUCATORS’ ASSN., et al.

No. 81–896.

Argued Oct. 13, 1982.

Decided Feb. 23, 1983.

Justice WHITE delivered the opinion of the Court.

Perry Education Association is the duly elected exclusive bargaining representative for the teachers of the Metropolitan School District of Perry Township, Ind. A collective-bargaining agreement with the Board of Education provided that Perry Education Association, but no other union, would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. The issue in this case is whether the denial of similar access to the Perry Local Educators’ Association, a rival teacher group, violates the First and Fourteenth Amendments.

I

The Metropolitan School District of Perry Township, Ind., operates a public school system of 13 separate schools. Each school building contains a set of mailboxes for the teachers. Interschool delivery by school employees permits messages to be delivered rapidly to teachers in the district. The primary function of this internal mail system is to transmit official messages among the teachers and between the teachers and the school administration. In addition, teachers use the system to send personal messages and individual school building principals have allowed delivery of messages from various private organizations.

Prior to 1977, both the Perry Education Association (PEA) and the Perry Local Educators’ Association (PLEA) represented teachers in the school district and apparently had equal access to the interschool mail system. In 1977, PLEA challenged PEA’s status as de facto bargaining representative for the Perry Township teachers by filing an election petition with the Indiana Education Employment Relations Board (Board). PEA won the election and was certified as the exclusive representative, as provided by Indiana law.

The Board permits a school district to provide access to communication facilities to the union selected for the discharge of the exclusive representative duties of representing the bargaining unit and its individual members without having to provide equal access to rival unions. Following the election, PEA and the school district negotiated a labor contract in which the school board gave PEA “access to teachers’ mailboxes in which to insert material” and the right to use the interschool mail delivery system to the extent that the school district incurred no extra expense by such use. The labor agreement noted that these access rights were being accorded to PEA “acting as the representative of the teachers” and went on to stipulate that these access rights shall not be granted to any other “school employee organization.” The PEA contract with these provisions was renewed in 1980 and is presently in force.

The exclusive access policy applies only to use of the mailboxes and school mail system. PLEA is not prevented from using other school facilities to communicate with teachers. PLEA may post notices on school bulletin boards; may hold meetings on school property after school hours; and may, with approval of the building principals, make announcements on the public address system. Of course, PLEA also may communicate with teachers by word of mouth, telephone, or the United States mail. Moreover, under Indiana law, the preferential access of the bargaining agent may continue only while its status as exclusive representative is insulated from challenge. While a representation contest is in progress, unions must be afforded equal access to such communication facilities.

PLEA and two of its members filed this action under 42 U.S.C. § 1983 (1976) against PEA and individual members of the Perry Township School Board. Plaintiffs contended that PEA’s preferential access to the internal mail system violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. They sought injunctive and declaratory relief and damages. Upon cross-motions for summary judgment, the district court entered judgment for the defendants.

The Court of Appeals for the Seventh Circuit reversed. The court held that once the school district “opens its internal mail system to PEA but denies it to PLEA, it violates both the Equal Protection Clause and the First Amendment.” It acknowledged that PEA had “legal duties to the teachers that PLEA does not have” but reasoned that “without an independent reason why equal access for other labor groups and individual teachers is undesirable, the special duties of the incumbent do not justify opening the system to the incumbent alone.”

[II]

The primary question presented is whether the First Amendment, applicable to the states by virtue of the Fourteenth Amendment, is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union. There is no question that constitutional interests are implicated by denying PLEA use of the interschool mail system. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines School District, 393 U.S. 503 (1969). The First Amendment’s guarantee of free speech applies to teachers’ mailboxes as surely as it does elsewhere within the school and on sidewalks outside. But this is not to say that the First Amendment requires equivalent access to all parts of a school building in which some form of communicative activity occurs. Nowhere have we suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for unlimited expressive purposes. The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.

A

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which have immemorially 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 questions. In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. See, e.g., Widmar v. Vincent (university meeting facilities); City of Madison Joint School District v. Wisconsin Public Employment Relations Comm’n (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater).7 Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.

Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. As we have stated on several occasions, the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.

The school mail facilities at issue here fall within this third category. The Court of Appeals recognized that Perry School District’s interschool mail system is not a traditional public forum: “We do not hold that a school’s internal mail system is a public forum in the sense that a school board may not close it to all but official business if it chooses.” On this point the parties agree. Nor do the parties dispute that, as the District Court observed, the normal and intended function of the school mail facilities is to facilitate internal communication of school related matters to teachers.” The internal mail system, at least by policy, is not held open to the general public. It is instead PLEA’s position that the school mail facilities have become a “limited public forum” from which it may not be excluded because of the periodic use of the system by private non-school connected groups, and PLEA’s own unrestricted access to the system prior to PEA’s certification as exclusive representative.

Neither of these arguments is persuasive. The use of the internal school mail by groups not affiliated with the schools is no doubt a relevant consideration. If by policy or by practice the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created. This, however, is not the case. As the case comes before us, there is no indication in the record that the school mailboxes and interschool delivery system are open for use by the general public. Permission to use the system to communicate with teachers must be secured from the individual building principal. There is no court finding or evidence in the record which demonstrates that this permission has been granted as a matter of course to all who seek to distribute material. We can only conclude that the schools do allow some outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations to use the facilities. This type of selective access does not transform government property into a public forum. In Greer v. Spock, the fact that other civilian speaker and entertainers had sometimes been invited to appear at Fort Dix did not convert the military base into a public forum. And in Lehman v. Shaker Heights, a plurality of the Court concluded that a city transit system’s rental of space in its vehicles for commercial advertising did not require it to accept partisan political advertising.

Moreover, even if we assume that by granting access to the Cub Scouts, YMCAs, and parochial schools, the school district has created a “limited” public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys’ club, and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment.

PLEA also points to its ability to use the school mailboxes and delivery system on an equal footing with PEA prior to the collective bargaining agreement signed in 1978. Its argument appears to be that the access policy in effect at that time converted the school mail facilities into a limited public forum generally open for use by employee organizations, and that once this occurred, exclusions of employee organizations thereafter must be judged by the constitutional standard applicable to public forums. The fallacy in the argument is that it is not the forum, but PLEA itself, which has changed. Prior to 1977, there was no exclusive representative for the Perry school district teachers. PEA and PLEA each represented its own members. Therefore the school district’s policy of allowing both organizations to use the school mail facilities simply reflected the fact that both unions represented the teachers and had legitimate reasons for use of the system. PLEA’s previous access was consistent with the school district’s preservation of the facilities for school-related business, and did not constitute creation of a public forum in any broader sense.

Because the school mail system is not a public forum, the School District had no constitutional obligation per se to let any organization use the school mail boxes. In the Court of Appeals’ view, however, the access policy adopted by the Perry schools favors a particular viewpoint, that of the PEA, on labor relations, and consequently must be strictly scrutinized regardless of whether a public forum is involved. There is, however, no indication that the school board intended to discourage one viewpoint and advance another. We believe it is more accurate to characterize the access policy as based on the status of the respective unions rather than their views. Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.

B

The differential access provided PEA and PLEA is reasonable because it is wholly consistent with the district’s legitimate interest in preserving the property for the use to which it is lawfully dedicated. Use of school mail facilities enables PEA to perform effectively its obligations as exclusive representative of all Perry Township teachers. Conversely, PLEA does not have any official responsibility in connection with the school district and need not be entitled to the same rights of access to school mailboxes. We observe that providing exclusive access to recognized bargaining representatives is a permissible labor practice in the public sector. We have previously noted that the “designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones.” Moreover, exclusion of the rival union may reasonably be considered a means of insuring labor-peace within the schools. The policy serves to prevent the District’s schools from becoming a battlefield for inter-union squabbles.

The Court of Appeals accorded little or no weight to PEA’s special responsibilities. In its view these responsibilities, while justifying PEA’s access, did not justify denying equal access to PLEA. The Court of Appeals would have been correct if a public forum were involved here. But the internal mail system is not a public forum. As we have already stressed, when government property is not dedicated to open communication the government may—without further justification—restrict use to those who participate in the forum’s official business.13

Finally, the reasonableness of the limitations on PLEA’s access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. These means range from bulletin boards to meeting facilities to the United States mail. During election periods, PLEA is assured of equal access to all modes of communication. There is no showing here that PLEA’s ability to communicate with teachers is seriously impinged by the restricted access to the internal mail system. The variety and type of alternative modes of access present here compare favorably with those in other non-public forum cases where we have upheld restrictions on access. See, e.g. Greer v. Spock (servicemen free to attend political rallies off-base); Pell v. Procunier (prison inmates may communicate with media by mail and through visitors).

[III]

The Court of Appeals invalidated the limited privileges PEA negotiated as the bargaining voice of the Perry Township teachers by misapplying our cases that have dealt with the rights of free expression on streets, parks and other fora generally open for assembly and debate. Virtually every other court to consider this type of exclusive access policy has upheld it as constitutional, and today, so do we. The judgment of the Court of Appeals is reversed.

Justice BRENNAN, with whom Justice MARSHALL, Justice POWELL, and Justice STEVENS join, dissenting.

Because the exclusive access provision in the collective bargaining agreement amounts to viewpoint discrimination that infringes the respondents’ First Amendment rights and fails to advance any substantial state interest, I dissent.

I

The Court properly acknowledges that teachers have protected First Amendment rights within the school context. See Tinker v. Des Moines School District. In particular, we have held that teachers may not be “compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work. . . .” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). We also have recognized in the school context the First Amendment right of “individuals to associate to further their personal beliefs” and have acknowledged the First Amendment rights of dissident teachers in matters involving labor relations. Against this background it is clear that the exclusive access policy in this case implicated the respondents’ First Amendment rights by restricting their freedom of expression on issues important to the operation of the school system.

From this point of departure, the Court veers sharply off course. Based on a finding that the interschool mail system is not a “public forum,” the Court states that the respondents have no right of access to the system, and that the school board is free “to make distinctions in access on the basis of subject matter and speaker identity” if the distinctions are “reasonable in light of the purpose which the forum at issue serves.” According to the Court, the petitioner’s status as the exclusive bargaining representative provides a reasonable basis for the exclusive access policy.

The Court fundamentally misperceives the essence of the respondents’ claims and misunderstands the thrust of the Court of Appeals’ well-reasoned opinion. This case does not involve an “absolute access” claim. It involves an “equal access” claim. As such it does not turn on whether the internal school mail system is a “public forum.” In focusing on the public forum issue, the Court disregards the First Amendment’s central proscription against censorship, in the form of viewpoint discrimination, in any forum, public or nonpublic.

A

The First Amendment’s prohibition against government discrimination among viewpoints on particular issues falling within the realm of protected speech has been noted extensively in the opinions of this Court. In Niemotko v. Maryland, two Jehovah’s Witnesses were denied access to a public park to give Bible talks. Members of other religious organizations had been granted access to the park for purposes related to religion. The Court found that the denial of access was based on public officials’ disagreement with the Jehovah’s Witnesses’ views. During the course of its opinion, the Court stated: “The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.” In a concurring opinion, Justice Frankfurter stated that “to allow expression of religious views by some and deny the same privilege to others merely because they or their views are unpopular, even deeply so, is a denial of equal protection of the law forbidden by the Fourteenth Amendment.”

In Tinker, we held unconstitutional a decision by school officials to suspend students for wearing black armbands in protest of the war in Vietnam. The record disclosed that school officials had permitted students to wear other symbols relating to politically significant issues. The black armbands, however, as symbols of opposition to the Vietnam War, had been singled out for prohibition. We stated: “Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.”

City of Madison Joint School District considered the question of whether a state may constitutionally require a board of education to prohibit teachers other than union representatives from speaking at public meetings about matters relating to pending collective bargaining negotiations. The board had been found guilty of a prohibited labor practice for permitting a teacher to speak who opposed one of the proposals advanced by the union in contract negotiations. The board was ordered to cease and desist from permitting employees, other than union representatives, to appear and to speak at board meetings on matters subject to collective bargaining. We held this order invalid. During the course of our opinion we stated: “Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech.”2

There is another line of cases, closely related to those implicating the prohibition against viewpoint discrimination, that have addressed the First Amendment principle of subject matter, or content, neutrality. Generally, the concept of content neutrality prohibits the government from choosing the subjects that are appropriate for public discussion. The content neutrality cases frequently refer to the prohibition against viewpoint discrimination and both concepts have their roots in the First Amendment’s bar against censorship. But unlike the viewpoint discrimination concept, which is used to strike down government restrictions on speech by particular speakers, the content neutrality principle is invoked when the government has imposed restrictions on speech related to an entire subject area. The content neutrality principle can be seen as an outgrowth of the core First Amendment prohibition against viewpoint discrimination.

Admittedly, this Court has not always required content neutrality in restrictions on access to government property. We upheld content-based exclusions in Lehman v. City of Shaker Heights, in Greer v. Spock, and in Jones v. North Carolina Prisoners’ Union. All three cases involved an unusual forum, which was found to be nonpublic, and the speech was determined for a variety of reasons to be incompatible with the forum. These cases provide some support for the notion that the government is permitted to exclude certain subjects from discussion in nonpublic forums.3 They provide no support, however, for the notion that government, once it has opened up government property for discussion of specific subjects, may discriminate among viewpoints on those topics. Although Greer, Lehman, and Jones permitted content-based restrictions, none of the cases involved viewpoint discrimination. All of the restrictions were viewpoint-neutral. We expressly noted in Greer that the exclusion was “objectively and evenhandedly applied.”

Once the government permits discussion of certain subject matter, it may not impose restrictions that discriminate among viewpoints on those subjects whether a nonpublic forum is involved or not. We have never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government for certain reasons may entirely exclude discussion of the subject from the forum. In this context, the greater power does not include the lesser because for First Amendment purposes exercise of the lesser power is more threatening to core values. Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of “free speech.”

B

Against this background, it is clear that the Court’s approach to this case is flawed. By focusing on whether the interschool mail system is a public forum, the Court disregards the independent First Amendment protection afforded by the prohibition against viewpoint discrimination. This case does not involve a claim of an absolute right of access to the forum to discuss any subject whatever. If it did, public forum analysis might be relevant. This case involves a claim of equal access to discuss a subject that the board has approved for discussion in the forum. In essence, the respondents are not asserting a right of access at all; they are asserting a right to be free from discrimination. The critical inquiry, therefore, is whether the board’s grant of exclusive access to the petitioner amounts to prohibited viewpoint discrimination.

II

The Court addresses only briefly the respondents’ claim that the exclusive access provision amounts to viewpoint discrimination. In rejecting this claim, the Court starts from the premise that the school mail system is not a public forum and that, as a result, the board has no obligation to grant access to the respondents. The Court then suggests that there is no indication that the board intended to discourage one viewpoint and to advance another. In the Court’s view, the exclusive access policy is based on the status of the respective parties rather than on their views. The Court then states that “implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity.” According to the Court, “these distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property.”

As noted, whether the school mail system is a public forum or not the board is prohibited from discriminating among viewpoints on particular subjects. Moreover, whatever the right of public authorities to impose content-based restrictions on access to government property that is a nonpublic forum, once access is granted to one speaker to discuss a certain subject access may not be denied to another speaker based on his viewpoint. Regardless of the nature of the forum, the critical inquiry is whether the board has engaged in prohibited viewpoint discrimination.

Addressing the question of viewpoint discrimination directly, free of the Court’s irrelevant public forum analysis, it is clear that the exclusive access policy discriminates on the basis of viewpoint. The Court of Appeals found that “the access policy adopted by the Perry schools, in form a speaker restriction, favors a particular viewpoint on labor relations in the Perry schools . . .: the teachers inevitably will receive from [the petitioner] self-laudatory descriptions of its activities on their behalf and will be denied the critical perspective offered by [the respondents].” This assessment of the effect of the policy is eminently reasonable. Moreover, certain other factors strongly suggest that the policy discriminates among viewpoints.

On a practical level, the only reason for the petitioner to seek an exclusive access policy is to deny its rivals access to an effective channel of communication. No other group is explicitly denied access to the mail system. In fact, as the Court points out, many other groups have been granted access to the system. Apparently, access is denied to the respondents because of the likelihood of their expressing points of view different from the petitioner’s on a range of subjects. The very argument the petitioner advances in support of the policy, the need to preserve labor peace, also indicates that the access policy is not viewpoint-neutral.

In short, the exclusive access policy discriminates against the respondents based on their viewpoint. The board has agreed to amplify the speech of the petitioner, while repressing the speech of the respondents based on the respondents’ point of view. This sort of discrimination amounts to censorship and infringes the First Amendment rights of the respondents.

[The dissent then applies strict scrutiny and finds that this policy fails strict scrutiny]

Notes and Questions:

1. Perry identifies the different types of potential speech forums: traditional public forums, designated public forums, limited public forums, and non-public forums. Be sure that you can identify the characteristics of each and what test applies to each.

2. Did the Perry Court, as suggested by the dissent, give unduly short shrift to the issue of viewpoint discrimination? On the other hand, would the dissent’s viewpoint discrimination approach create problems if applied to a case like Perry? E.g., would it require not only that the school board give equal access to PLEA but also to any and every other group sharing PLEA’s viewpoint (and opposing PEA’s viewpoint)?