Legal Assistance Fund Board of Trustees
Faye Beaulieu, TASB President—Hurst-Euless-Bedford ISD
Andra Self, TASB President-Elect—Lufkin ISD
Bret Begert, TASB Vice President—Fort Elliott CISD
Darrell G. Floyd, TASA President—Katy ISD
Alton L. Frailey, TASA President-Elect—Northwest ISD
Mia Martin, CSA Chair—Richardson ISD
Ellen H. Spalding, CSA Vice-Chair—Rogers, Morris & Grover, LLP
In Other Words
Limited Public Forum
In the JesusTattoo case, Judge Cummings determined that Lubbock ISD had created a “limited public forum” when it made its jumbotron available for third-party advertising. What does this mean?
The First Amendment to the U.S. Constitution prohibits Congress from making laws that abridge the freedom of speech, but the Supreme Court recognizes that an individual’s right to speech is not equal at all times and in all places. A governmental entity, such as a school district, may establish different forums for speech that may have different standards that apply if the district places restrictions on speech in the forum.
A public forum or open forum is open to all types of expression, and an individual’s speech cannot be restricted unless the restriction passes a strict scrutiny test. That is, the government restriction must be narrowly tailored to achieve a compelling government interest. The government may also place reasonable time, place, and manner restrictions on speech in a public or open forum. The open forum that starts a school board meeting or a free speech area on a campus is an example of a public forum.
On the other hand, as Judge Cummings pointed out, schools may open their doors for expression of particular kinds or by particular groups and in so doing create “limited public forums.” When a school district establishes a limited public forum, the district is not required to and does not allow persons to engage in every type of speech. To create a forum of this type, a district must intend to make the property generally available to a class of speakers, and the district may be justified in reserving the forum for certain groups or for the discussion of certain topics. The district has the right to limit the subject matter of speech in a limited public forum to those subjects for which the forum was reserved. A school may not limit viewpoints on particular subjects that it has allowed in a limited public forum. And the subject-matter restriction must be reasonable in light of the purpose served by the forum.
Judge Cummings concluded that Lubbock ISD’s policy GKB(LOCAL) had clearly created a limited public forum by stating that “[a]dvertising [was not] accepted … for the purpose of establishing a forum for communication.” Therefore, the judge determined that the advertiser did not have a right to use the jumbotron to engage in any type of speech and that the district’s reasons for rejecting the JesusTattoo advertising need only be reasonable rather than pass strict scrutiny.