Document Type

Working Paper

Publication Date

2-27-2018

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network

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 selfgovernment

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