William & Mary Bill of Rights Journal
Ridden with Controversy: Applying the Public Forum Doctrine to Public Transit Advertising
This Note tackles the application of the First Amendment to public transit advertising. Under the current judicial framework, the First Amendment is filtered through the "public forum doctrine" when discussing the rights of citizens to utilize government property for expressive purposes. The Note will argue that public transit advertising constitutes a "designated public forum" in most (if not all) cases. That characterization would force any content-based restrictions to be narrowly tailored to serve a compelling government interest. The natural result is a significant expansion of access to public transit advertising by interested parties. If the U.S. Supreme Court were to grant certiorari to resolve the circuit split, as it declined to do in 2016, it should hold that most public transit systems are categorically a designated public forum.
Part I discusses the origins of, and the basic approach to, application of the public forum doctrine. Part II discusses the majority approach of circuit courts, finding that public transit systems are a designated public forum. Part III discusses the minority approach of circuit courts, asserting that public transit systems are a non-public forum. Part IV discusses the government speech doctrine in the context of public transit advertising, including the extent to which it is applicable in that context. Part V discusses the issue of the "captive audience" and potential avenues to distinguish controversial public transit advertising from other types of offensive content. The Conclusion provides a clear overview of the four-part majority approach and cleanly integrates the major issues of government speech and captivity into the overall analysis.
This abstract has been adapted from the author's introduction.