ON THE WAY TO THE FORUM

...H The nonpublic forum—property that has not previously been used or designated for public communication...

...But some other courts have taken the view that military propaganda isn't controversial speech at all and therefore not subject to rebuttal under constitutional protection...

...The answer is to be found in "forum analysis," a First Amendment doctrine invoked by the courts as a result of two relatively recent Supreme Court decisions...

...In Atlanta, Judge Shoob defined high-school guidance offices as limited public forums because they had previously been opened to military recruiters...

...To the Third Circuit, the annual Memorial Day service was a neutral event...

...The U.S...

...Under forum analysis, however, the absence of overt expression in support of the war—pro-war arm bands, for example-would have been enough reason to ban the wearing in school of antiwar arm bands...

...This approach marks a drastic departure from earlier First Amendment doctrine and a severe curtailment of free-speech rights...

...He will report from time to time on civil liberties issues...

...This means parks, streets, and the like...

...The Atlanta and San Diego decisions are the latest in an intensifying legal dispute over counterrecruiting...

...In 1982, a Federal judge allowed a peace group to obtain access to students in Palm Beach...

...In fact, occasional free-speech victories, such as the counterrecruiters' right to talk with students, may make the doctrine seem like a civil-liberties advance...

...In such places, speech may be curbed only to protect a "compelling state interest...

...Under forum analysis, all public property falls into one of three categories that determine the extent to which speech—not just counterrecruiting but any speech—may be limited...

...Moreover, "apprehension of disturbance is not enough to overcome the right to freedom of expression...

...The decision was a blow to the U.S...

...That standard was set in the 1969 landmark case of Tinker v. Des Moines Independent Community School District, in which the Supreme Court upheld the right of high-school students to wear arm bands protesting the Vietnam war...

...The categories are: ¶ The traditional public forum, where free speech has been allowed "by long tradition or by government fiat," in the Supreme Court's words...

...The Atlanta Peace Alliance recently won permission to "counterrecruit" in that city's public schools...

...The appeals court found that to be "sufficient justification...

...A lower court would not allow advocates for the homeless to contribute a display to the National Park Service's 1985 Christmas Pageant of Peace...

...The limited public forum, consisting of property that is not routinely open to free speech, but which the authorities have made available for that purpose...

...In the same vein, the Ninth Circuit held that once a school board had accepted military recruitment ads, the student newspaper became a limited public forum and was obliged to accept ads that oppose recruiting...

...There's a catch, though: Decisions favoring counterrecruiting have been handed down under a novel interpretation of the First Amendment favored by conservative Keenen Peck, a member of The Progressive's Editorial Advisory Board, studies law at the University of Wisconsin...

...How could the Federal courts permit adults in one city to carry a peace pitch to students within the schools while barring students in another city from expressing their own views on a playing field...

...Supreme Court...

...Florida...

...The judicial reasoning that prevailed in Atlanta and San Diego could easily lead to curbs on the exercise of First Amendment rights elsewhere...

...The court essentially held that the Government could designate an area in the middle of the Ellipse— a public park if ever one there was—as a nonpublic forum...

...Justice Harry Blackmun, dissenting against an opinion in which the Court's majority applied the new test, pointed to the central defect that is likely to result in unwarranted curbs on free speech: "The very fact that the Government denied access to the speaker indicates that the Government did not intend to provide an open forum for expressive activity, and under the Court's analysis that fact alone would demonstrate that the forum is not a limited public forum...

...But desirable results in selected cases can help obscure the larger threat...

...In Federal District Court, Judge Marvin Shoob ordered the local board of education to let the Peace Alliance "present information about peace-oriented educational and career opportunities to students by placing literature on school bulletin boards and in the offices of school guidance counselors and by participating in 'Career Day' programs...

...In this manner, the constitutional guarantee of freedom of expression can be transformed into a mere equal-time requirement...

...In November 1985, the U.S...

...Here, too, the presumption is that restraints will be imposed only in extreme circumstances...

...We don't want to become embroiled in political matters or have the facilities turned into political battlegrounds," said the president of the school board...

...members of the U.S...

...Court of Appeals for the Ninth Circuit ruled that the Gross-mont Union school board could not reject an antidraft advertisement submitted for publication in student newspapers...

...In fact, that has already happened in Lower Merion, Pennsylvania...

...Under this rationale, peace activists have been barred from presenting their point of view at "open-house" events on military installations...

...In 1984, a Federal judge ordered the Chicago school board to permit peace counseling by a social-justice organization...

...If military recruiters are kept out, counterrecruiters can be barred...

...Government is the nation's largest property owner, and when it comes to reaching mass audiences, government facilities are often the only game in town...

...Here speech may be curtailed so long as the restrictions imposed are reasonable and nondiscriminatory...

...Government, which had intervened in the case on the side of the school authorities...

...Judge Shoob and the Ninth Circuit recognized, at least, that military-recruiting efforts represented one side of a controversial issue...

...As Justice Blackmun wrote, "Access to government property permits the use of less costly means of communication so 'essential to the poorly financed causes of little people' and 'allows challenge to governmental action at its locus.' " Only blocks from Blackmun's chambers, one such challenge was turned back...

...The San Diego Committee Against Registration and the Draft (CARD) had tried to place the ad in 1982...

...The "little people" and their poorly financed case lost...

...in allowing it, the school board had not made Arnold Field a limited public forum, and therefore had not created an obligation to permit students to respond...

...Previously, when arms of the State attempted to bar speech, they were required to show that the excluded speech would "materially and substantially interfere" with normal use of the public's property...

...In June, about a month before the Atlanta ruling, peace forces won a victory in San Diego...

...Though the decisions were even-handed, they point to a pitfall in forum analysis: Schools may ban speech on one side of a controversy by banning speech on all sides...

...Arnold Field had been used for many purposes—student sports, jogging, picnics, benefits, and an annual Memorial Day service—but the peace fair was banned...

...Forum analysis is likely to be with us for a while, since it lets the Supreme Court's conservative majority curb speech while preserving a veneer of constitutional protection...

...Court of Appeals for the Third Circuit ruled that the Student Coalition for Peace had no First Amendment right to conduct a peace fair on the athletic field at Lower Merion High...

...From now on, military recruiters will have competition in Atlanta...

...School authorities, the justices held, could not prohibit such expression simply "to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint...

...Activists in other cities have used these precedents to gain access without going to court...

...The same sort of reasoning led the court to keep the Student Coalition for Peace off Arnold Field...