Responding to First Amendment Audits: How Do Courts Classify a “Forum”? 

Published for Coates' Canons on November 16, 2022.

This post is Part 3 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. 

In our last blog post in this series, we looked at the “forum analysis” framework that courts use when evaluating restrictions on speech on government property. In this post, we will discuss the factors courts evaluate when deciding whether a particular area of government property is a traditional public forum, a designated public forum, a limited public forum, or a nonpublic forum.  

It is common for First Amendment auditors to claim that they have a First Amendment right to film in a government building because it is open to the public (or in some cases, simply because it is owned by the government). However, the fact that an area is held open to the public is not sufficient to establish it as a public forum for First Amendment purposes. The area must also be traditionally used for or expressly dedicated to expressive activity. The U.S. Supreme Court has explicitly stated that publicly owned or operated property “is not transformed into ‘public forum’ property merely because the public is permitted to freely enter and leave the grounds at practically all times and the public is admitted to the building during specified hours.” United States v. Grace, 461 U.S. 171, 178 (1983). 

The Supreme Court has been clear that the government is able to impose reasonable limitations on public expression to preserve the government’s intended use for a particular space. A recent decision from the North Carolina Court of Appeals reflects this principle. In State v. Barber, 281 N.C. App. 99 (2021), the Court of Appeals held that the interior of the North Carolina General Assembly is not “an unlimited public forum” for purposes of First Amendment activity. Even though “citizens are free to visit the General Assembly and communicate with members and staff,” the court found that “the government may prohibit…conduct on a content-neutral basis that would affect the ability of members and staff to carry on legislative functions.”  

Outside of North Carolina, multiple courts have found areas of government property open to the public to be nonpublic forums. For example, the Supreme Court has held that the terminals of a publicly owned airport are nonpublic forums for First Amendment purposes. Likewise, a court has held the interior of the United States Capitol to be a nonpublic forum, despite the fact that Congress allows the public to observe its proceedings and visit the inside of the Capitol. As discussed in Section IV of the bulletin, a number of courts have found publicly accessible lobby areas of government buildings to be nonpublic forums. Other courts have even held certain publicly accessible outdoor areas to be nonpublic forums, including open-air plazas connected to government-owned buildings, areas outside of sports arenas, and sidewalks connected to government buildings. Public access, in and of itself, does not make an area a public forum. 

The Forum Classification Process 

Identifying the precise area where a particular person seeks to engage in First Amendment activity is the first step in a court’s forum classification process. When an individual seeks general access to engage in speech activities throughout a property or building, the entire property or building is the forum at issue. When an individual seeks more specific access to an area within a property or building, courts apply a narrower approach by identifying the boundaries of the precise access sought.  For example, if someone is challenging a restriction on filming in the lobby area of a government building, a court would likely define the forum at issue as the lobby area itself, not the entire building.  

The government’s intent for an area is the key consideration for forum classification. Courts must ask if the government intended to allow expression within the forum, and if so, to what extent. Answering that question requires examining policies regarding the use and purpose of an area, practices regarding the use of an area, the nature of the property and its compatibility with expressive activity, the extent of the use or access granted to the public, and the history of the area at issue. Courts consider these factors collectively and no one factor is dispositive. 

1. Policies Regarding the Use and Purpose of an Area

Written or informal policies for a particular space are important indicators of governmental intent. Policies help courts understand whether a government is intentionally opening a space for public expression. For example, in Make the Road by Walking Inc. v. Turner, 378 F.3d 133, 140 (2d Cir. 2004), an advocacy organization filed suit under the First Amendment after being excluded from welfare office waiting rooms1 The Second Circuit identified the forum at issue as the welfare office waiting rooms and examined the government agency’s policies regarding public access to those waiting rooms. The policies restricted access to individuals with “official business” at the welfare center and to activities that were “specifically authorized” by the agency’s administrator. Limiting public access to those with official business showed a clear intent for the welfare waiting rooms to be nonpublic forums. The Second Circuit concluded that welfare waiting rooms were nonpublic forums, in part based on the agency’s policy. 

Local governments’ policies regarding public expression in a space are relevant to determining where First Amendment auditors may film. Some local governments may not have any policies at all regarding public expression on government property. Given that policies can serve as significant evidence of a government’s intent for a certain space, local governments should carefully assess how and if they want the public to use different areas of government property for expressive purposes. A local government’s policies should clearly delineate the areas it wishes to hold open for expressive activity and those where it wants to limit expressive activity. The parameters of those policies should be clearly and consistently communicated to the public through signage or other means. More information about creating such policies can be found in Section VI of the bulletin (and will be discussed in an upcoming blog post).  

2. Practices Regarding Use of an Area 

To determine intent, courts examine not only what a government says about public expression on government property (its policy) but what it actually does with public expression on government property (its practice). Both policy and practice are relevant in analyzing governmental intent regarding the purpose, functions, and limitations on use of a specific forum. 

The Third Circuit analyzed the practice factor in detail in Gregoire v. Centennial School District, 907 F.2d 1366 (3d Cir. 1990). There, a religious group sought to use a high school auditorium for a magic show involving some Christian teachings. The school denied the religious group’s request, citing its policy prohibiting the use of school facilities for religious services, instruction, or activities. The school later revised its policy to allow auditorium use only for groups, organizations or activities that were consistent with the school’s function and mission. Even though the school’s policy prohibited the use of school facilities for religious services, instruction, and activities, in practice, the school permitted religious courses to be taught in its adult education program held in the auditorium. Moreover, the school opened its doors to dramatic and musical performances that did not relate to school purposes. Despite its stated intent to create a nonpublic forum, the school allowed many groups that were inconsistent with an educational mission and purpose access to its facilities, while barring only religious content and groups. Taking the school’s practices as a whole, the Third Circuit held that the school had in practice created a designated public forum, despite its stated intent and policies. 

The way a unit of local government applies a policy in practice may undermine the stated intent of the policy for First Amendment forum purposes. Accordingly, local governments must ensure that (i) the actual practices of government officials and employees on the ground align with the parameters of any written policies, and (ii) policies are enforced even-handedly and consistently. 

3. Nature of the Property 

The nature of the property, including the function of a particular area and its physical characteristics, is another relevant factor for forum classification. If the principal function of an area of government property would be disrupted by expressive activity, the Supreme Court is reluctant to hold that the government intended to designate a public forum in that area. The Supreme Court has recognized that the government workplace, like any place of employment, “exists to accomplish the business of the employer.” As a result, the government has an interest in regulating expressive activity to avoid disruptions to its employees’ work. 

  • Function: The Sixth Circuit illustrated how function impacts forum classification in Helms v. Zubaty, 495 F.3d 252 (6th Cir. 2007). There, a member of the public entered the reception area for a county judge’s office. While she waited for the judge to return, she sat in the reception area and spoke loudly about a new tax, becoming agitated and disruptive. An employee sharing that office asked the complaining citizen to leave, stating that she was disrupting his work, before involving law enforcement. The citizen argued that the judge had an “open-door policy” wherein he allowed members of the public to enter his office and speak with him and that consequently, the county employee had violated her First Amendment rights. In considering the citizen’s claims, the Sixth Circuit noted that a balancing test should be applied when First Amendment rights are implicated in a government workplace. Since the purpose of a government workplace is to accomplish the business of the government, courts must evaluate whether the government’s interest in limiting the use of its property to its intended purpose outweighs others’ interest in using the government property for alternative purposes. Ultimately, the Sixth Circuit held that the function of the forum at issue was to accomplish government business and categorized the area as a nonpublic forum. 
  • Physical Characteristics: Another facet of courts’ analysis of the nature of a property is the area’s physical characteristics. In Claudio v. United States, 836 F. Supp. 1219 (E.D.N.C. 1993), the Eastern District of North Carolina noted that the lobby of the Raleigh Federal Building was small and completely ill-equipped to handle noise, a crowd, or any sort of disruptive behavior.  Its physical characteristics were incompatible with expressive activity, which weighed in favor of the court finding the lobby to be a nonpublic forum. 
  • Function and Physical Characteristics: In United States v. Kokinda, 497 U.S. 720 (1990), the Supreme Court relied on physical characteristics and intended function to conclude that a post office sidewalk was a nonpublic forum. Kokinda involved a political group setting up a table on the sidewalk leading to the entrance of a post office to solicit contributions, sell books, and distribute political literature. The group was arrested and convicted of violating a Postal Service regulation banning solicitation on Postal Service property. The convicted individuals then challenged the Postal Service ban on solicitation as violating the First Amendment when applied to their activity on the sidewalk. Prior to Kokinda, the Supreme Court had generally recognized public sidewalks as traditional public forums—areas where expressive activity receives the greatest level of protection from government interference. Despite this precedent, a plurality of the Supreme Court held that the sidewalk on Postal Service property was a nonpublic forum and upheld the Postal Service regulation banning solicitation. The Court noted that the postal sidewalk at issue did “not have the characteristics of public sidewalks traditionally open to expressive activity” because it was “constructed solely to provide for the passage of individuals engaged in postal business.” Even though the sidewalk was completely open to any member of the public, the purpose of the sidewalk was to lead from the parking lot to the post office, not “to facilitate the daily commerce and life of the neighborhood or city.” 

If public expression is incompatible with or likely to substantially disrupt the intended function of an area, a court may be more likely to categorize that area as a nonpublic forum. Likewise, an area that is not physically suited for expressive activity is also more likely to be classified as a nonpublic forum.   

4. Extent of the Use Granted 

A fourth factor for forum classification is the type and extent of use of an area that a government grants to the public. Permission procedures, consistency, and the extent to which similarly situated groups have been treated equally are all relevant to this factor. In the Gregoire case described above, the school district’s policy described a particular permission procedure, but in practice, the school district’s lack of a clear standard for permission led to inconsistent results and virtually unfettered access for some groups. This inconsistency and breadth of access weighed in favor of the court holding the high school facilities to be a designated public forum—a forum that “is created when public property is intentionally opened by the state for indiscriminate use by the public as a place for expressive activity.” 

Remember, the extent of the use granted is particularly important when distinguishing between a designated public forum and a limited public forum. The second blog post in this series explains why the breadth of access to engage in expressive activity is a key factor in differentiating those two categories.  

5. Historical Use 

Historical use is a particularly important factor when determining whether an area is a traditional public forum. Traditional public forums are those areas “which have immemorially been held in trust for the use of the public, and time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In examining this factor, courts consider whether a forum has historically been open to expressive activity and how a property has traditionally been used. Courts might also ask if a particular forum is part of a category that has traditionally been subject to access restrictions. Courts may examine not only a local government’s current practice regarding access for expressive activities, but its historical practice as well.  

The historical use factor may be important for local governments that have had a long practice of permitting public expression in areas that they now want to restrict. Those governments should keep the following two points in mind: 

  • If the area is a traditional public forum such as a public park, street, or sidewalk—a place that has been “immemorially been held in trust for the use of the public, and, time out of mind [has been] used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”—then a mere change in policy cannot change the nature of the forum. Historical use and tradition will continue to dictate the nature of that forum. For example, a local government cannot transform a public park into a nonpublic forum solely by declaring it to be a nonpublic forum in an ordinance or policy.  
  • On the other hand, if an area is open to expressive activity because the government has intentionally opened it to the public as a designated or limited public forum, the government may take action to close such a forum through new policy and practices. Local governments are not required to keep a designated or limited public forum open to expressive activity indefinitely.  


Wondering how these factors get applied in practice? The next post in this series will discuss how certain areas of government property have been classified by courts in prior First Amendment cases.  

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Topics - Local and State Government