Private Open Forums

Abstract

Traditional public forums for the exercise of First Amendment rights are vanishing for four reasons: communication has migrated online, where private actors control digital spaces; private actors readily censor their forums, either for profit or at the government’s behest; public forums can be “privatized” for certain events, which permit organizers to engage in viewpoint exclusion; and the list of public forums, which the Supreme Court is loathe to expand, has never been a long one.

This is a problem because the expression of First Amendment rights cannot exist in isolation, but has effect only in a larger system of interacting rights. When an individual speaks, a hearer listens, often at an organization’s event. Local press may be covering the speech, and listeners may be there in person, or tune in by television, radio, or the Internet. The legal status of the forum matters greatly because it facilitates all of these interconnected instances of First Amendment activity.

This Article responds to the constitutional crisis entailed in vanishing traditional public forums and their persistent importance to First Amendment interests. It does so by proposing a “Private Open Forums” doctrine. A Private Open Forum is any space (digital, physical, or otherwise) that is privately owned; substantially open to the public; substantially non-selective/non-discriminatory; functions primarily to facilitate users’ First Amendment activities; and intended to facilitate those activities. I argue that operators of Private Open Forums constitutionally have and normatively should have the free-standing First Amendment right to maintain their forums and facilitate users’ First Amendment activities, as well as standing to defend their users’ First Amendment rights exercised on the forum.