1. The Public Forum
Basic Concepts

2. Defining the Public Forum
• Generically: A public forum is a venue that the
government must make available for free-
speech activity
• Three ways of identifying them
– Historical: “time out of mind”
• Problem: federalism and local experimentation
– Functional-historical: venues that today serve the
same functions as streets and parks
– “Reverse functional”: venues where expressive
activity won’t interfere with the primary function of the
venue
• An abortive doctrinal effort in the 1960s

3. Justifications for expressive activity
in public forums
• Access to a wide array of people
• Listeners being exposed to material they
might not seek out
• Targeting particular audiences
– Good policy reasons for using forums for
speech, but why are they constitutionally
required?

4. Public Forums as Subsidies
• Compare public forum to how wealthy people
(Meg Whitman, George Soros) get their views
disseminated
– They purchase the means of dissemination
• Less wealthy people can’t do that
– They use the public forum
• So the public forum serves as a subsidy to
speech
– An example of Madisonian or New Deal ideas in
existing doctrine?

5. Thinking About Subsidies
• Examples
– Schneider: the public must forgo some environmental protection
to subsidize speech
– Street and parks: disruption of traffic, loss of business
• When the Court rejects a public forum claim, maybe it’s
because it thinks that the size of the subsidy is too large
– Frisby: The subsidy comes in the form of the disruption of an
individual person’s privacy (and that of his/her neighbors)
• Recall the discussion of the subsidy issue in libel law
– But CCNV is hard to explain on this ground
• Subsidy: cost of cleaning up?

6. Fees and Subsidies
• Cities can charge fees measured by the estimated size of the demonstration and the
costs of policing it (Cox)
• More generally, cities can charge (some) cost-justified fees
– Clean-up costs in excess of what the city would incur without the demonstration
– It’s worth noting that cities have gotten pretty good at coming up with reasonably good
methods of determining the excess costs (overtime pay for police officers, and the like)
• Two problems
– The impecunious group that can’t afford the cost-justified fee
• The best analysis of the problem is an Israeli case, Majority Camp v. Israel Police
• The cases, though few, tend to suggest that a cost-justified fee can be required of such a group (Long
Beach case, 574 F.3d 1011)
• Other cases suggest a distinction between large groups, which can be required to pay, and small
ones, which cannot (Boardley, 515 F.3d 508 – a permit case, not a fee case)
– Excess policing costs (beyond those measured by the size of the group) caused by a hostile
audience
• Forsyth County says that the fee there wasn’t cost-justified
• There’s a tendency to think that the solution to the hostile audience problem (arrest the threateners,
not the speaker) implies that cost-justified fees aren’t permissible here
– Not necessarily true
– Why shouldn’t a group that can afford to do so (Jon Stewart) pay the costs?

7. Fees and Subsidies
• Cities can charge fees measured by the estimated size of the demonstration and the
costs of policing it (Cox)
• More generally, cities can charge (some) cost-justified fees
– Clean-up costs in excess of what the city would incur without the demonstration
– It’s worth noting that cities have gotten pretty good at coming up with reasonably good
methods of determining the excess costs (overtime pay for police officers, and the like)
• Two problems
– The impecunious group that can’t afford the cost-justified fee
• The best analysis of the problem is an Israeli case, Majority Camp v. Israel Police
• The cases, though few, tend to suggest that a cost-justified fee can be required of such a group (Long
Beach case, 574 F.3d 1011)
• Other cases suggest a distinction between large groups, which can be required to pay, and small
ones, which cannot (Boardley, 515 F.3d 508 – a permit case, not a fee case)
– Excess policing costs (beyond those measured by the size of the group) caused by a hostile
audience
• Forsyth County says that the fee there wasn’t cost-justified
• There’s a tendency to think that the solution to the hostile audience problem (arrest the threateners,
not the speaker) implies that cost-justified fees aren’t permissible here
– Not necessarily true
– Why shouldn’t a group that can afford to do so (Jon Stewart) pay the costs?