Jordan E. Pratt, An Open and Shut Case: Why (and How) The Eleventh Circuit Should Restrain the Government’s Forum Closure Power

63 Fla. L. Rev. 1487 (2011)| | | ||||
The Supreme Court has made it clear that when the government opens a nontraditional public forum, it retains the power to shut down the forum subsequently. But the Court has not specifically addressed whether this forum closure power knows any constitutional limitations. Several circuits, including the U.S. Court of Appeals for the Eleventh Circuit, have suggested in dicta that this power is unlimited-that the government may shut down nontraditional public forums at any time and for any reason. While the government certainly enjoys broad discretion as a property owner, it cannot wield its ownership powers in a manner that will infringe basic constitutional guarantees. This Note argues that, at a minimum, the First Amendment’s guarantees against retaliation and viewpoint discrimination should rein in the outer bounds of the government’s forum closure power, and that the Eleventh Circuit should qualify its expansive dicta by recognizing a cause of action under 42 U.S.C. § 1983 for plaintiffs who allege that a forum was shut down in retaliation against their viewpoint. Such a rule would protect the fundamental guarantees of the First Amendment, harmonize with existing First Amendment retaliation doctrine, vindicate the purposes of § 1983, and strike the correct balance between protecting constitutional rights on one hand and government discretion on the other.

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