Amendment 1 — The Public Forum

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In 1895, while on the highest court of Massachusetts, future Justice Oliver Wendell Holmes rejected a contention that public property was by right open to the public as a place where the right of speech could be recognized,[1](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn1amd1 " Commonwealth v. Davis, 162 Mass. 510, 511 (1895) ( “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of rights of a member of the public than for the owner of a private house to forbid it in the house.” ) ") and on review the United States Supreme Court endorsed Justice Oliver Wendell Holmes’s view.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn2amd1 " Davis v. Massachusetts, 167 U.S. 43, 48 (1897). ") Years later, beginning with Hague v. CIO,[3](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn3amd1 " 307 U.S. 496 (1939). Only Justice Hugo Black joined the John Owen Roberts opinion, but only Justices James McReynolds and Pierce Butler dissented from the result. ") the Court reconsidered the issue. Justice Owen Roberts wrote in Hague:

Wherever the title of streets and parks may rest, they 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. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn4amd1 " Id. at 515. ")

Although majority of the Justices did not join Justice Roberts’s opinion, the Court subsequently endorsed the view in several opinions.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn5amd1 " E.g., Schneider v. Town of Irvington, 308 U.S. 147, 163 (1939); Kunz v. New York, 340 U.S. 290, 293 (1951). ")

In the 1960s, the Court appeared to call the Roberts view into question,[6](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn6amd1 " Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of this case in the broader context, see Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1. ") and subsequently a majority endorsed an opinion by Justice Hugo Black asserting a narrower view of speech rights in public places.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn7amd1 " Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47–48; Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Black, J., concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Black, J., for the Court). ") Later decisions restated and quoted the Roberts language from Hague, and that is now the position of the Court.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn8amd1 " E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v. Brown, 447 U.S. 455, 460 (1980). ") Public streets and parks,[9](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn9amd1 " Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972); Greer v. Spock, 424 U.S. 828, 835–36 (1976); Carey v. Brown, 447 U.S. 455 (1980). ") including those adjacent to courthouses[10](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn10amd1 " Narrowly drawn statutes that serve the state’s interests in security and in preventing obstruction of justice and influencing of judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559 (1965). A restriction on carrying signs or placards on the grounds of the Supreme Court is unconstitutional as applied to the public sidewalks surrounding the Court, since it does not sufficiently further the governmental purposes of protecting the building and grounds, maintaining proper order, or insulating the judicial decision making process from lobbying. United States v. Grace, 461 U.S. 171 (1983). ") and foreign embassies,[11](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn11amd1 " In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down as content-based a District of Columbia law prohibiting the display of any sign within 500 feet of a foreign embassy if the sign tends to bring the foreign government into “public odium” or “public disrepute.” However, another aspect of the District’s law, making it unlawful for three or more persons to congregate within 500 feet of an embassy and refuse to obey a police dispersal order, was upheld; under a narrowing construction, the law had been held applicable only to congregations directed at an embassy, and reasonably believed to present a threat to the peace or security of the embassy. ") as well as public libraries[12](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn12amd1 " Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library reading room). ") and the grounds of legislative bodies,[13](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn13amd1 " Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.D.C. 1972) (three-judge court), aff’d, 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds). ") are open to public demonstrations, although the uses to which public areas are dedicated may shape the range of permissible expression and conduct that may occur there.[14](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn14amd1 " E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) (sustaining ordinance prohibiting noisemaking adjacent to school if that noise disturbs or threatens to disturb the operation of the school); Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library protected while noisy and disruptive demonstration would not be); Tinker v. Des Moines Independent Sch. Dist., 393 U.S. 503 (1969) (wearing of black armbands as protest protected but not if it results in disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968) (preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474 (1988) (ordinance prohibiting picketing “before or about” any residence or dwelling, narrowly construed as prohibiting only picketing that targets a particular residence, upheld as furthering significant governmental interest in protecting the privacy of the home). ") Moreover, not all public properties are public forums. In U.S. Postal Service v. Greenburgh Civic Ass’ns, the Court stated: “[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government,” [15](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn15amd1 " U.S. Postal Serv. V. Council of Greenburgh Civic Assn’s, 453 U.S. 114, 129 (1981). ") while in Grayned v. City of Rockford, the Court stated: “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.” [16](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn16amd1 " Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). ") Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn17amd1 " E.g., Minn. Voters All. v. Mansky, No. 16-1435, slip op. at 13 (U.S. June 14, 2018) (polling places); ISKCON v. Lee, 505 U.S. 672, 679 (1992) (publicly owned airport terminal); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (interschool mail system); Council of Greenburgh Civic Ass’ns, 453 U.S. at 128 (private mail boxes); Greer v. Spock, 424 U.S. 828, 838 (1976) (military bases); Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (plurality opinion) (advertising space in city rapid transit cars); Adderley v. Florida, 385 U.S. 39, 47–48 (1966) (jails). ") But if government does open non-traditional forums for expressive activities, it may not discriminate on the basis of content or viewpoint in according access.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn18amd1 " E.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (municipal theater); Madison Sch. Dist. v. WERC, 429 U.S. 167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640 (1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981) (university meeting facilities). ")

Speech in public forums is subject to time, place, and manner regulations that take into account such matters as control of traffic in the streets, the scheduling of two meetings or demonstrations at the same time and place, the preventing of blockages of building entrances, and the like.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum#fn19amd1 " See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647–50 (1981), and id. at 656 (Brennan, J., concurring in part and dissenting in part) (stating law and discussing cases); Clark v. Comty.