Alan E. Brownstein (University of California at Davis Law School) has posted The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Involving School Sponsored Activities (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:
This article critically evaluates the way that federal courts adjudicate student free speech claims arising out of school sponsored activities. In doing so, it challenges conventional orthodoxy in several ways. First, it rejects the often stated truism that student free speech rights at school are less rigorously protected than the rights of speakers outside the school environment. In fact, under current authority, students at public school often have greater free speech rights than adults in other areas of public life. Second, it contest the way that most federal courts interpret and apply Hazelwood v. Kuhlmeier, the controlling Supreme Court decision in this area, by arguing that school sponsored activities should not be characterized as a nonpublic forum in which viewpoint discriminatory regulations are prohibited. The article also suggests that a key factor in the Hazelwood analysis - whether the expressive activity at issue bears the imprimatur of the school - is largely irrelevant to the free speech analysis in these cases.
As an alternative to the current morass of inconsistent decisions and incoherent analysis in this area, I argue that school sponsored activities should be characterized as a nonforum - a new free speech category developed in the article. The nonforum category covers government property or activities that should not be subject to judicial review under the free speech clause. As a working definition of the category, nonforums involve intrinsically and pervasively expressive government property and activities where the burden of complying with free speech requirements would unreasonably interfere with the activity's purpose or the use to which the property was being put. They also involve government functions which, for separation of powers and federalism reasons, should not be subject to intrusive judicial review under the free speech clause.
