Our Shrinking First Amendment: On the Growing Problem of Reduced Access to Public Property for Speech Activity and Some Suggestions for a Better Way Forward

The Disappearing First Amendment (Cambridge University Press 2019, Forthcoming)

Ohio State Law Journal, Vol. 78, 2017

U of Alabama Legal Studies Research Paper No. 3130200

41 Pages Posted: 27 Feb 2018 Last revised: 11 Oct 2018

Date Written: 2017

Abstract

The Article posits that the scope of certain First Amendment protections has contracted, rather than expanded, over time, and uses access to public property for speech activity as an exemplar of this troubling phenomenon. The Roberts and Rehnquist Courts have issued decisions that significantly restrict access to public property for speech activity. Under the rubric of the public forum doctrine, less public property is available today for speech activity than was the case under the precedents of the Warren and Burger Courts. Moreover, even with respect to government property that constitutes a traditional or designated public forum, the federal courts have permitted government to burden, or even banish, speech activity through the adoption and enforcement of time, place, and manner (TPM) regulations. By way of contrast, during the Warren and Burger Court eras, the federal courts generally presumed that government property must be available for speech activity; the burden fell squarely on the government to justify denying access to public property for First Amendment activities.

“Our Shrinking First Amendment” posits that the contemporary public forum doctrine, in conjunction with the TPM doctrine, vests too much discretionary power with government to squelch speech activity on public property. Instead of using a rigid, categorical approach to decide whether government must make public property available for speech activity, the federal courts should instead use a functional approach to decide what constitutes a public forum – essentially the approach used by the Warren and Burger Courts. Simply put, public spaces compatible with First Amendment activity should be available for such activity. Second, federal courts should be less ready to sustain TPM regulations – particularly when the context of their adoption suggests a censorial motive. It is probably unrealistic to propose a complete return to the open balancing test that prevailed under the Warren and Burger Courts. Even if this is so, however, the public forum and TPM doctrines could be reformed to create, literally, more breathing space for First Amendment activities essential to sustaining the project of democratic self-government.

Keywords: constitutional law, first amendment, freedom of speech, public forum doctrine, Meiklejohn, Roberts Court, Warren Court, Burger Court, traditional public forum, Selma March, time place and manner regulations, streets, parkes, sidewalks, public protest, dissent, Williams v. Wallace, Brown v. Louisiana

Suggested Citation

Krotoszynski, Ronald James, Our Shrinking First Amendment: On the Growing Problem of Reduced Access to Public Property for Speech Activity and Some Suggestions for a Better Way Forward (2017). The Disappearing First Amendment (Cambridge University Press 2019, Forthcoming), Ohio State Law Journal, Vol. 78, 2017, U of Alabama Legal Studies Research Paper No. 3130200, Available at SSRN: https://ssrn.com/abstract=3130200

Ronald James Krotoszynski (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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