This post is Part 2 of a multi-part series. For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin No. 141, Responding to First Amendment “Audits” in the Local Government Context. 

Our last blog post on First Amendment audits explored a trend in the U.S. Circuit Courts of Appeals of recognizing a right to film government officials engaged in public duties. However, we noted that neither the Fourth Circuit Court of Appeals nor the U.S. Supreme Court has recognized this right.  Even if we suppose that filming public officials engaged in carrying out their duties is a clearly established First Amendment right, local governments may still impose some restrictions on that activity, just as they are able to do with other forms of protected speech. In the words of the Supreme Court, “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” The Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”  Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788 (1985).

Courts conduct a three-step analysis when the government restricts speech on public property. First, a court must decide whether the activity at issue is speech protected by the First Amendment. Second, a court must identify the nature of the “forum” where the speech is being restricted. Third, a court must assess whether the government’s restrictions satisfy the standard of judicial review associated with that forum. Courts use different tests to analyze government limitations on First Amendment activities depending on the nature of the space (the “forum”) that the government is attempting to regulate. 

Categories of Forums  

To evaluate a governmental restriction on speech occurring on public property, courts must determine how the regulated area fits into the following categories.  

1. Traditional Public Forum. These are “places which by long tradition or by government fiat have been devoted to assembly and debate,” including public streets and parks.  The hallmarks of a traditional public forum are that it “has been traditionally open to the public for expressive activity” and used for “communicating thoughts between citizens, and discussing public questions.” Expressive activity receives the greatest level of protection from government interference in a traditional public forum. Courts will uphold a content-based regulation of First Amendment activity in such a forum only if the government can show that “its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” The government may regulate the time, place, and manner of expressive activities in a traditional public forum, so long as those regulations “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” 

2. Designated Public Forum. A designated public forum is “created by purposeful governmental action” when the government has intentionally opened property for expressive activity by the public, even if such property was not traditionally used for such purposes. The hallmark of a designated public forum is that the government has made it “generally accessible to all speakers,” in a similar manner to the broad expressive activity that is permitted in traditional public forums. The government is not obligated to create such a forum or keep it open, but while such a forum is open, the government is subject to the same limitations that apply in a traditional public forum. Examples of such forums include university meeting facilities open for use by student groups and a municipal auditorium and city-leased theater designed for and dedicated to expressive activities.

3. Limited Public Forum. A “limited public forum” exists where a government has intentionally reserved a forum only for certain groups or for the discussion of certain topics. In other words, the government has opened a forum for expressive activity, but it has established initial restrictions on access to that forum based on subject matter and/or the speaker. Examples of spaces found by courts to be limited public forums include public school facilities during after school hours and the interior of a city hall. In such a forum, a government entity may impose restrictions on expressive activity so long as the restrictions are viewpoint-neutral and reasonable in light of the purpose served by the forum. Once a government entity opens a limited public forum to certain speakers or topics, it “must respect the lawful boundaries it has itself set.” However, the government is not obligated to create a limited public forum or to keep it open to expressive activity indefinitely.

4. Nonpublic Forum. A nonpublic forum is a government space that “is not by tradition or designation a forum for public communication.” Spaces in which “the government is acting as a proprietor, managing its internal operations” fall into this category. “Courts have consistently found public property to be a nonpublic forum where the evidence shows…that the property’s purpose is to conduct or facilitate government business, and not to provide a forum for public expression.” Examples of spaces courts have held to be nonpublic forums include the offices of government employees, the interior of polling places, the mailboxes of public school teachers, lobby areas of government buildings, terminals in publicly operated airports, and military bases. The Supreme Court has recognized that “the government has much more flexibility to craft rules limiting speech” in a nonpublic forum, including imposing restrictions based on content, “so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint-neutral.”

Section IV of the bulletin explores how courts have categorized some specific types of government property (offices, lobby areas, schools, prisons, etc.) within these four forum categories.   

How can a local government know which of these categories an area of property is likely to fall into?   

• Exterior Areas: As a general rule of thumb, exterior areas (streets, parks, sidewalks, plazas) are likely to be considered a traditional public forum, though there are some exceptions described in Section IV of the bulletin. 
• Interior Areas:  

• • The primary way that the highest level of scrutiny may apply to a part of the interior of a government building is if the government has intentionally opened up that part of the building as a “designated public forum.” A designated public forum is created when public property is intentionally opened by the government for indiscriminate use by the public as a place for expressive activity—in the same way that a traditional public forum (parks, streets, sidewalks, etc.) would be broadly open to many different speakers and forms of speech.   
  • Unless a local government has taken intentional action through policy or past practice to allow indiscriminate public use of a space for expressive activity (protests, pamphleting, speeches, lectures, solicitation, posting signs, etc.), the interior of a government building is likely to constitute a limited public forum or nonpublic forum. In both limited public forums and nonpublic forums, courts apply a lower level of scrutiny to restrictions on First Amendment activity. Section V of the bulletin explains the various levels of scrutiny in more detail.  

Designated Public Forum vs. Limited Public Forum 

You might notice that the designated public forum and limited public forum categories described above sound fairly similar. The difference is important, since restrictions in these two different types of forums are subject to different levels of judicial scrutiny. What’s the key difference between the two categories? In large part, this distinction turns on the government’s intent in opening the space for expression. Did the government intend to open a nonpublic forum for the broad spectrum of expressive activity that would be permitted in a traditional public forum (e.g. streets and parks)? If so, the area is likely a designated public forum. Alternatively, did the government clearly intend to open a nonpublic forum only for expressive activity by certain groups or only for expression regarding certain subjects? If so, the area is likely a limited public forum. The breadth of expressive activity the government intended to allow in a particular area becomes a key touchstone when courts analyze the distinction between these two types of forums. 

Restrictions in Different Forums Receive Different Levels of Judicial Scrutiny 

In a traditional public forum or designated public forum, restrictions on the time, place, and manner of speech are permissible, so long as those regulations are: 

• content-neutral,  
• narrowly tailored to serve a significant government interest, and 
• leave open ample alternative channels of communication.  

In a limited public forum or nonpublic forum, restrictions on speech are permissible if they are: 

• viewpoint-neutral, and  
• reasonable in light of the purpose of the forum.  

Viewpoint–based restrictions on speech are unconstitutional in any forum.  

What does it mean to be “content-neutral” or “viewpoint-neutral”? What types of restrictions are considered “reasonable”? Section V of the bulletin explains these tests for evaluating restrictions in particular forums in more detail.   

Is Forum Analysis the Right Way to Evaluate a Government Restriction on Filming?  

As described in our first blog post in this series, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have recognized a First Amendment right to record public officials carrying out public duties in a public place, at least in the context of recording encounters with the police. Likewise, the Eighth Circuit has held that taking photographs and recording videos may be entitled to First Amendment protection if those acts involve the intent to disseminate information about a public controversy.   

Unlike most of the aforementioned U.S. Courts of Appeals, courts in the Sixth Circuit have largely evaluated filming cases under a “right to access information” framework, rather than the forum analysis framework that courts apply to “freedom of speech” cases. Both types of analyses involve the First Amendment but each uses different tests to determine whether a restriction is permissible. In the “right to access” line of cases, courts have concluded that “the First Amendment does not require unfettered access to government information,” nor does it “mandate[] a right of access to government information or sources of information within the government’s control.”  Under the “right to access” analysis, local government restrictions on video recording have been consistently upheld by courts in the Sixth Circuit. However, at least one federal district court in the Sixth Circuit has distinguished livestreaming from mere video recording, positing that livestreaming on social media could potentially constitute expressive conduct under the First Amendment and thus restrictions on livestreaming could be subject to forum analysis like other forms of “speech.” 

Arguably, either the “freedom of speech” analysis or “right to access” analysis could apply to a First Amendment case involving a government restriction on video recording, depending on the area where an individual is attempting to film. Using forum analysis seems appropriate in a case where an individual is attempting to film in a publicly accessible area. On the other hand, if an individual is attempting to film in a location where they would ordinarily have no right of access (e.g., private offices, certain court proceedings, prisons), the “right to access information” framework might be more applicable.  In such cases, the threshold question would be whether the individual had a right to access those private spaces at all, not whether they had a right to engage in expressive activity (filming) in those spaces. Imagine, for example, a case in which an individual started filming in the lobby of a government building, then proceeded to ignore an “Employees Only” sign and entered a private office area to begin filming there. Theoretically, a court could apply both analyses in this situation—the forum analysis for the filming restriction in the lobby and the “right to access” framework for the individual’s right to enter a restricted area to film. The court might uphold the restriction on filming in both areas, but potentially under two different analytical frameworks.   

Most First Amendment auditors focus their filming activity on areas that are publicly accessible or within public view. Accordingly, our remaining blog posts in this series focus primarily on forum analysis as a way for local governments to assess the constitutionality of restrictions on filming in such areas.    

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Our next post in this series will cover how courts analyze an area of government property to determine how it falls into the forum categories described above in this post. Stay tuned!