Emory Law Journal


Ryan T. Smith


In 1939, the Supreme Court held in Hague v. Committee for Industrial Organization that citizen speech in government-owned properties such as streets and parks is subject to heightened First Amendment protection. These properties, the Court reasoned, are by their very nature reserved for the public to use for assembly and communication. Over time, these properties were labeled “public forums,” and the Supreme Court divided them into a number of categories, each affording varying levels of protection to private speech. The “streets and parks” from Hague were classified as “traditional public forums,” and received the strongest level of constitutional protection. While the public forum doctrine has evolved over time to reflect the new technologies and realities of today’s world, courts have resisted expanding the traditional public forum beyond its origins largely due to language in Hague, which suggested that a traditional public forum must be “immemorially . . . held in trust for the use of the public.” This has led to public venues that are critical for assembly and communication in today’s world, such as government-run social media accounts, being classified as “limited’ or “designated public forums,” which offer fewer protections for citizens’ speech. This is an inconsistent standard that has permitted government officials to restrict and censor their constituents’ speech from their official social media pages, sometimes with impunity. This Comment argues that government-run social media accounts, arguably the most vital government-run venue for assembly and communication today, should be classified as traditional public forums. These accounts encompass nearly all of the historical qualities of the traditional public forum, apart from the “immemorial” standard from Hague. Careful review of public forum jurisprudence throughout the last century, however, shows that the “immemorial” standard should be treated not as a concrete requirement, but as merely one of many factors that weigh in the public forum equation.

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