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Public vs. Private Speech

In addition to determining whether a restriction is content-based or content-neutral, courts also consider whether the speech or assembly is given or held in a public or private forum. Government property that has traditionally been used by the public for the purpose of assembly and to disseminate ideas is considered a traditional public forum. Content-based regulations in a traditional public forum are the most likely forms of speech to be found in violation of the First Amendment. Some content-neutral restrictions on the time, place, and manner of the speech are permitted, however, even in the traditional public forum.

Public-owned facilities that have never been designated for the general use of the public to express ideas are considered nonforums. Government may reasonably restrict speech, including some content-based speech, in these nonforums. This does not mean that all speech may be restricted on such property, but it does mean that speech can be restricted to achieve a reasonable government purpose if is not intended to suppress the viewpoint of a particular speaker.

Some public property that is not a traditional public forum may become a designated or limited public forum if it is opened to the use of the general public to express ideas. Examples include a senior center that has been opened for the general public to express ideas or a state-operated television station used for political debates. Courts will strictly scrutinize content-based restrictions in a designated or limited public forum when the restriction on speech is related to the designated public use of the property.

Inside Public vs. Private Speech