42 Pages Posted: 5 Nov 2011 Last revised: 9 Jan 2012

Date Written: January 6, 2012

Abstract

Recent proliferation of Occupy Wall Street and Tea Party protests highlights the importance of preventing unconstitutional government interference with disfavored speakers. Officials seeking to prevent protests while avoiding viewpoint discrimination lawsuits can elect to simply close forums in which speech would otherwise be expressed. Arguing that all speakers are equally affected, courts have generally allowed such actions. In other contexts, however, courts have rejected this rationale under the First Amendment retaliation doctrine. A close examination reveals that, despite a facade of facial neutrality, retaliatory forum closures specifically harm targeted speakers by making them the object of community scorn and by disproportionately obstructing their viewpoints. Also, retaliatory forum closures usually stem from governmental errors in the design or maintenance of a forum. To address these issues, this Note extends First Amendment retaliation jurisprudence to the forum-closure context by creating an action for retaliatory forum closure and then examining how this action corrects the problematic results of previous retaliatory forum closures. Consistent with First Amendment policy, this would protect disfavored speakers and give the public greater opportunity to interact with a wide spectrum of viewpoints.