Price v. City of N.Y.
15 Civ. 5871 (KPF) (S.D.N.Y. Jun. 25, 2018)
affirmative steps to open up [the space] for general
public discourse." Johnson v. Perry, 859 F.3d 156,
172 (2d Cir. 2017) (quoting Peck v. Baldwinsville
Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir.
2005)). "The government does not create a public
forum by inaction or by permitting limited
discourse, but only by intentionally opening a
nontraditional forum for public discourse."
Cornelius, 473 U.S. at 802. Examples include
university meeting facilities and municipal
theatres. See United Methodist Parish v. Bd. of
Educ. of City Sch. Dist. of City of Newburgh, 907
F. Supp. 707, 713 (S.D.N.Y. 1995).
& Visitors of Univ. of Va., 515 U.S. 819, 829
(1995); see also Ross Rinehart, "Friending" and
"Following" the Government: How the Public
Forum and Government Speech Doctrines
Discourage the Government's Social Media
Presence, 22 S. Cal. Interdisc. L.J. 781, 788-89
(Spring 2013) ("When a state opens a limited
public forum but excludes a speaker who falls
within the class of speakers to whom the forum is
made available or whose speech concerns a
subject matter for which the forum is dedicated,
the state's exclusion is subject to strict scrutiny."
(citing Ark. Educ. Television Comm'n v. Forbes,
523 U.S. 666, 672 (1998)). Restrictions on speech
that is not within the type of expression allowed in
a limited public forum must only be reasonable
and viewpoint-neutral. See, e.g., Fighting Finest v.
Bratton, 95 F.3d 224, 227 (2d Cir. 1996)
(corrected opinion).
12 A space is presumptively a public forum if
it is "generally open to the public," Widmar
v. Vincent, 454 U.S. 263, 268 (1981),
"designed for and dedicated to expressive
activities," Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546, 555 (1975), or
"has as a principal purpose ... the free
exchange of ideas," Int'l Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672,
679 (1992) (citation omitted).
29
"Speech in a designated public forum is entitled to
the same constitutional protection as that extended
to expression in a traditional public forum, so long
as the state continues to designate the forum for
such use." Peck, 426 F.3d at 626. That is, in
designated
public
forums,
content-based
restrictions on speech must survive strict scrutiny.
See Pleasant Grove City, 555 U.S. at 469-70; Int'l
Action Ctr. v. City of New York, 587 F.3d 521,
526-27 (2d Cir. 2009); Hotel Emps., 311 F.3d at
545. *29
A limited public forum is a subset of the
designated public forum. It arises "where the
government opens a non-public forum but limits
the expressive activity to certain kinds of speakers
or to the discussion of certain subjects." Hotel
Emps., 311 F.3d at 545 (quoting N.Y. Magazine v.
Metro. Transp. Auth., 136 F.3d 123, 128 n.2 (2d
Cir. 1998)). Once a government "has opened a
limited forum . . . , [it] must respect the lawful
boundaries it has itself set." Rosenberger v. Rector
30
The third category is that of nonpublic forums,
which consist of spaces that "the government has
not opened for expressive activity by members of
the public." Hotel Emps., 311 F.3d at 546; see also
Perry Educ. Ass'n, 460 U.S. at 45-46. The state
has more control over speech in nonpublic forums
than in public forums because "its actions [in
nonpublic forums] are most analogous to *30 that
of a private owner." Paulsen, 925 F.2d at 69. In
nonpublic forums, the government may restrict
speech so long as the restrictions are "reasonable
and not an effort to suppress expression merely
because public officials oppose the speaker's
view." Perry Educ. Ass'n, 460 U.S. at 46; Hotel
Emps., 311 F.3d at 546 ("The government may
restrict speech in non-public fora subject only to
the requirements of reasonableness and viewpoint
neutrality.").
Regardless of where it occurs, however, the
government's own speech "is exempt from First
Amendment scrutiny." Johanns v. Livestock Mktg.
Ass'n, 544 U.S. 550, 553 (2005). Instead, when the
government engages in its own speech, it is
permitted to "speak for itself" and to "select the
views that it wants to express." Pleasant Grove
14
Sélectionner le paragraphe cible3
Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières