The Decline of the Public Forum and the Risks to Democracy

The legal framework for assembly and public speech is not absolute, but communities can take action.

The enduring relationship between public space and democracy stretches back to the first emergence of democracy in the agoras of the cities of ancient Greece – the marketplaces where people gathered to shop, socialize and debate. The framers of the U.S. Constitution recognized the essential relationship between gathering to publicly debate the people’s business and democratic self-government and codified the rights of free speech and public assembly in the First Amendment of the Bill of Rights. 

Given the long and enduring history of public demonstrations and protests that date back to the founding of the country –including the recent No Kings rallies held across the country in June, 2025 --  we may take for granted the right to gather, even in large numbers, in public spaces to express our support or dissent regarding government decisions and policies.

That right, however, is not always absolute.  As the political geographer Don Mitchell has written in his book the Right to the City “…those rights we take as ‘immemorial’, such as the right to assemble in and use public space are not only new, but they are always hotly contested and only grudgingly given by those in power.”¹ The right to assemble in and use public space for political speech has represented both an important expansion of the ideals of self-government and civic participation, and further evidence of the co-dependent relationship between public space and the growth of democracy.

Using the examples of 19th century London and New York, in Triumph of Order, historian Lisa Keller has documented the parallel efforts in those cities over the course of a century to manage the tensions between the aspirations of growing urban populations for expanded rights to public speech, public assembly, and mass protests in public spaces and the desire among government and city leaders for order and public safety.

Through that process of balancing the demands for open-air public assembly against the desire for stability and order necessary for a thriving urban economy, over time public spaces like Hyde Park in London and Tompkins Park in New York assumed roles supporting the expansion of the democratic franchise. 

As Keller writes “Open, public spaces in these two cities may have served recreational, sanitary, and social purposes in the nineteenth century, but they also aided the formation of civic identity. They were places for expressing a wide array of political, social, and economic messages, a public conduit for private opinion. Parks, streets, squares, and other open spaces became sites to be used ‘as new arenas of public discourse.’”² 

To paraphrase Keller, if parks are the lungs of the city, they also became its vocal cords.

Although earlier in the nineteenth century, government and city leaders often sought to constrain and limit the use of parks and public spaces for mass meetings, public protests and demonstrations, Keller writes “by the end of the [19^th] century, the crowd was considered a legitimate conduit for public opinion and a symbol of fulfilled democratic ideals; the expression of mass opinion in open forums was seen as a critical societal right.”³ 

Large scale protest marches and demonstrations continued to function as legitimate implements of American self-rule well into the 20th century. From the marches of the suffragettes and the labor movements in early 20th century, to civil rights and anti-war demonstrations of the 1960s and 1970s the streets, parks, and public spaces of our cities provided the stages for public speech and protest. But as Don Mitchell has written, the “right to the city” – the use of public spaces for political speech and social action - is never guaranteed and never freely given.

Court opinion and local laws in the US regarding the use of public space for public speech and protest marches evolved over many decades and the legal history is complex and has continued to evolve. In the early 20^th century, the courts and local laws were highly conservative, and especially in the case of labor protesters, firmly on the side of business and viewed public space protests as dangerous threats to society and social order. There are many cases where police and military responded to protests with force, with ensuing violence leading to fatalities. 

Legalizing Public Speech and Assembly in Public Space

It wasn’t until the Great Depression in 1937 in De Jonge v. Oregon that the court asserted for the first time that there did indeed exist a right to peaceful assembly guaranteed by the First Amendment. The court found that defendant Kirk De Jonge had the right to speak at a public meeting organized by the Communist Party, despite that fact that the party advocated for revolutionary overthrow of the government. Delivering the opinion of the Court, Chief Justice Charles Evans Huges wrote:

“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed.” De Jonge v. Oregon, 299 U.S. 353 (1937)

In 1939, in Hague vs. CIO, the Supreme Court further recognized the legality of public speech, public assembly and protest in public space. Finding a local ordinance in New Jersey City unconstitutionally prevented a labor organization from meeting in a public place, Justice Owen Roberts stated:

“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. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)
 

In a pair of cases in 1940, the Court declared picketing as protected speech; starting in the 1950s and 1960s a public forum doctrine was developed and enforced by the courts and the legal history of public speech in public space in our nation has continued to evolve. For example, in 1994 the Court held the lower courts had the power to establish “time, place, and manner restrictions on the exercise of public speech assembly rights of anti-abortion protesters leading to so-called “bubble laws” to control the violence of anti-abortion activists using public streets for protest. More recently, the Court has begun to grapple with the extent to which social media functions as a public forum. 

Spatial Originalism: The Public Forum Doctrine and Its Limitations

The Court’s principal legal framework in deciding public speech in public space cases remains the public forum doctrine. The public forum doctrine – a tool used by the courts to decide on speech restrictions --.began to emerge in the court’s decisions in the 1930s, continued to evolve over the succeeding decades, and was finally formally codified in the 1983 decision, Perry Education Association v. Perry Local Educators’ Association.

As legal scholar Timothy Zick observes, “As the civil rights protest era gave way to the Vietnam protest era, tolerance for public disorder began to wane… [and by] the end of the 1970s many - including, apparently, a majority of justices then serving on the Court - perceived a need to impose greater order in public places.”⁴ The Perry Education Association decision represented an effort by the Court to establish the limits of Constitutionally protected speech on government-owned land and facilities. 

In Perry, Justice Byron White, writing for the majority, identified three types of forums relating to public speech on public property:

• Traditional Public Forums

Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Speakers in these areas enjoy the strongest First Amendment protections. In traditional public forums, the government may not discriminate against speakers based on the speakers' views. The government may, however, subject speech to reasonable, content-neutral restrictions on its time, place, and manner. When the government restricts speech in a traditional public forum, strict scrutiny dictates that restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest.

• Designated Public Forums

Sometimes, the government designates public property for public expression even when the public property is not a traditional public forum. After opening a designated public forum, the government is not obligated to keep it open. However, as long as the government does keep the forum open, speech in the forum receives the same First Amendment protections as speech in traditional public forums. Examples of designated public forums include municipal theaters and meeting rooms at state universities.

• Non-Public

Non-public forums are places for public speech that are neither traditional public forums nor designated public forums. In a non-public forum, the Government may restrict contents of a speech, as long as the restriction is reasonable and the restriction does not discriminate based on speakers’ viewpoints. Examples of non-public forums include airport terminals, a public school’s internal mail system, and a polling place. Finally, some public property is not subject to this forum analysis. For example, public television broadcasters are not subject to forum analysis when they decide what shows to air.⁵

Although the Perry decision further reinforces speech protections in what it defined as traditional public forums, it also established a new standard that has limited the expansion of public forums that have not historically been used for public assembly and free speech, particularly post-war suburban communities. In many regions, suburbanization did not prioritize the creation of public spaces, since everyone has a private park in their back yards. The public streets of the downtown business districts of city centers and town squares of traditional small towns have been replaced by private shopping centers, malls, and office parks. Even in cases when these places may appear as “public” and closely resemble traditional public forums, the owners of these properties can rely on Constitutional protections of private property rights to legally restrict and prohibit public assembly and public speech.

While the public forum doctrine eventually came to dominate the Court’s viewpoint, important dissents over the years have pointed to its limitations. In a 1972 case upholding the exclusion of Vietnam War protesters from a Portland shopping center called the Lloyd Center, Justice Thurgood Marshall’s dissent argued that:

“Members of the Portland community are able to see doctors, dentists, lawyers, bankers, travel agents, and persons offering countless other services in Lloyd Center. They can buy almost anything that they want or need there. For many Portland citizens, Lloyd Center will so completely satisfy their wants that they will have no reason to go elsewhere for goods or services. If speech is to reach these people, it must reach them in Lloyd Center.” Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972)

Twenty years later, in a case involving the prohibition of leafleting by members of Hare Krishna religious organization in an airport terminal, Justice Anthony Kennedy wrote:

“So, the Court concludes, airports must be nonpublic forums, subject to minimal First Amendment protection. This analysis is flawed at its very beginning. It leaves the government with almost unlimited authority to restrict speech on its property by doing nothing more than articulating a non-speech-related purpose for the area, and it leaves almost no scope for the development of new public forums absent the rare approval of the government.” International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)

In a prescient observation even more relevant today than it was over three decades ago, in his Lee dissent, Justice Kennedy further commented:

“…open public spaces and thoroughfares that are suitable for discourse may be public forums, whatever their historical pedigree and without concern for a precise classification of the property…[w]ithout this recognition our forum doctrine retains no relevance in times of fast-changing technology and increasing insularity.”

Legal scholar Timothy Zick characterizes the limitations of the public forum doctrine as “spatial originalism” ⁶  and argues convincingly that the “doctrine relies upon outdated notions of where speakers and audiences are co-present.”⁷  This historic and geographic mismatch between where public assembly and public speech is protected and where an increasingly large segment of the American population actually lives, works, shops, and recreates represents a significant risk to the interconnections between public space, free speech, and public assembly which undergird our democratic society. 

The lack of opportunities to expand and create new public forums is only compounded by more recent efforts in the name of urban economic development to limit the use of existing traditional public forums, through privatization, over-regulation, and expanded surveillance of city parks, plazas, streets and waterfronts. And even when public places may be largely available and accessible, the extent to which all residents of a community feel welcome and included, weighs heavily on the value of a public space as a true forum for civil discourse and the free exchange of ideas. 

21^st Century Challenges and Promising Actions to Revitalize Public Space and Democracy

Understanding the legal challenges and resolutions of the 20^th century can provide some context for navigating the continued evolution of public space, but the complex world of 21^st century digital age brings its own challenges. Social media platforms may tout themselves as digital town squares, but they are very poor substitutes for in person interaction and dialogue among citizens.  Their private ownership presents further barriers.

In a commentary in the San Francisco Chronicle, Douglas Yeung of The Rand Corporation observed, “…while a privately owned public space like Twitter might seem like a space for public discourse—after all, just about anyone can tweet or read tweets—it is not.

Whenever any private company is forced to make choices about the nature of content in the conversation it hosts—whether it be Facebook or Twitter, or a bank that owns a plaza, and must decide what protests to allow there -- a company and its leaders determine who gets to say what. The rest of our access to these privately owned public spaces can be—and often is—curtailed, all without us knowing exactly why.”

With the virtual world rife with lies, distortions, fabrications, and chat-bot propaganda, the real world of in-person interactions in the form of community gatherings, town hall meetings, live political conventions and debates, electoral caucuses, and over-the-back-fence and front-porch chats, coffee klatches, and park bench conversations all offer superior forms of more trustworthy information exchange, political discussion, and opportunities for public citizenship. To safeguard our rights to free speech and public assembly, we have to ensure the development and continued existence of the places and spaces that support these forms of human dialogue that are essential to democratic self-government.

So, what should we do?

First, ensure that all residents within a community have access to high quality and well-maintained public spaces that are accessible, inclusive, and suitable for public assembly and free speech. Public spaces should be designed and equipped to support programming that encourages public discussion and debate of important civic issues and public policies. Public places should also include improvements and amenities that make them comfortable and safe places to gather. 

Second, community and civic leaders should be circumspect about efforts to overly privatize public spaces, even in efforts to raise funds for their operations, maintenance, and programming and guard against the transfer of too much control of public space to private entities. In the event of public-private partnerships to develop and operate public spaces, city and community leaders should promote and require permissive rules and expectations for the use of public spaces for public assembly and free speech – regardless of the actual operator. Within this context, city and community leaders must also guard against levels of human and technological surveillance and security that discourage a sense of welcome and belonging for all members of the community.

Finally, communities should develop and encourage a culture of public space use that promotes peaceful interaction. Creating and communicating clear expectations for neighborly behavior in public spaces can help establish norms for parkgoers, whether protesting or not, guaranteeing the necessary breathing space for democracy while ensuring shared use and enjoyment of public spaces by all residents. 

The period of social upheaval we are experiencing could eventually lead to renewed social cohesion, where collectively we will turn towards a rebuilding of our human, social infrastructure and our country’s future. Part of ensuring we remain a democracy will require us to create opportunities to vigorously exercise our constitutional rights. The essential and enduring relationship between public space and democratic ideals cannot be disputed or overstated — and history shows that we need to work continuously to secure and maintain the right to use public space for free speech and public assembly.

The erosion of those rights through inadequate or inequitable access to high-quality public space, privatization of the public sphere, human and technological over-surveillance, government regulations and restrictions — and most insidiously, through intentional under-investment and neglect of public space maintenance — represent real and fundamental threats to our democracy. To preserve and promote all our rights and to protect the world’s oldest constitutional democracy, community leaders need to advocate for and expand the number of public spaces that are well-funded, maintained and welcoming to all.

Notes on cited works

1. Don Mitchell. The Right to the City - Social Justice and the Fight for Public Space. (New York: the Guildford Press, 2014), 14
2. Lisa Keller. Triumph of Order - Democracy and Public Space in New York and London. (New York: Columbia University Press, 2008), 43
3. Ibid, 46
4. Timothy Zick. Speech Out of Doors - Preserving First Amendment Liberties in Public Spaces. (Cambridge: Cambridge University Press, 2009), 52-53
5. Forums. Cornell Law School Legal Information Institute (May 2023) https://www.law.cornell.edu/wex/forums 
6. Timothy Zick. Speech Out of Doors - Preserving First Amendment Liberties in Public Spaces. (Cambridge: Cambridge University Press, 2009), 169
7. Ibid, 168