The Supreme Court has held that the existence of a right of access to public property and the standard by which limitations on such a right must be evaluated differently, depending on the nature of the property. There is a division of government property into three categories: public fora, designated public fora, and nonpublic fora.
A traditional public forum, like public parks or sidewalks, is generally available for public expression. Regulating speech here is permissible only if narrowly drawn to achieve a compelling state interest. All remaining public property is nonpublic fora. The government may limit expressive activity in nonpublic fora if the limitation is reasonable and not based on the speaker’s viewpoint. As the Supreme Court wrote in Perry Education Association v. Perry Local Educators’ Association:
- “Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purposes of the property.”
Government policies that historically have permitted commercial advertising, but have excluded political and religious expression, show an intent not to designate a public forum for all expressive activity. School facilities may be deemed public fora only if school authorities have opened those facilities for indiscriminate use by the public.
A Superior Court judge, a district court, and a three-judge panel of the 9th U.S. Circuit Court found that the district did not violate DiLoreto’s rights. The courts found that a public school district’s refusal to post a paid religious advertisement on school property where commercial advertising was permitted did not violate the free-speech rights of the advertiser.
In the opinion of the courts, the school district did not intend to designate the baseball field fence as a public forum for all expressive activity. The intent of the school in opening the fence to advertising was only to raise funds, not to create a forum for unlimited public expression.
Thus, the baseball field fence was a nonpublic forum open for a limited purpose and that meant that the school district’s conduct was permissible if it was reasonable in light of the purpose of the forum and viewpoint-neutral. According to the court, the school district’s concerns regarding disruption and potential controversy were legitimate. Moreover, nothing in the record indicated that the District opened the forum to the subject of religion — thus meaning that the refuse the ad was not based upon the particular religious viewpoint that it included.
Unlike the other signs on the fence, DiLoreto’s did not advertise or even mention a business. DiLoreto’s ad did not address otherwise permissible subjects from a religious perspective — it set forth the Ten Commandments. The school district’s decision was following a permissible, content-based limitation on the forum, and was not viewpoint discrimination.
Thus, it was not unconstitutional for the school to close the forum in response to DiLoreto’s ad. The government has an inherent right to control its property — and that includes the right to close a previously open forum. Closing the forum was a permissible solution to the dilemma caused by concerns about providing equal access while avoiding the appearance of government endorsement of religion.
This decision agreed that schools can and should control the material posted on its property in an effort to avoid any implication that it is endorsing specific religious ideas — indirect endorsement of certain speech was found to be just as important as direct endorsement. This decision further makes it clear that schools do not automatically have an obligation to treat all speech equally, regardless of the message being conveyed.
It has become commonplace in recent years for critics of strict church/state separation to argue that when religious speech is not treated exactly the same as all other speech, then this represents a form of discrimination against religion and religious ideas. Such an argument has superficial plausibility and as a consequence has led many people astray. What we need to understand is that the government isn’t obligated to treat all speech equally in all contexts.
In a non-public forum like a school, government officials can and do discriminate against certain types of speech, but they are not allowed to discriminate based upon viewpoint. School officials can prohibit posters advocating religious messages because that prohibits a type of speech, but they cannot allow posters advocating liberal religion or Christianity while banning posters advocating conservative religion or Islam — that would entail banning certain viewpoints.
The line between a type of message and a type of viewpoint isn’t always clear. Neither is the line between public and non-public fora. This guarantees that there will continue to be lawsuits, especially where schools are concerned. We must remember, though, that the government officials who administer schools are entrusted with children who come from many different religious, cultural, and ethnic backgrounds. Refusing to participate in the sponsorship or distribution of religious message can legitimately be seen as an important means of maintaining equality and harmony within the school environment.
