An Open and Shut Case: Why (and How) the Eleventh Circuit Should Restrain the Government’s Forum Closure Power

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. INTRODUCTION 1488 I. A BRIEF GLANCE AT FIRST AMENDMENT FORUM DOCTRINE 1492 A. The Traditional Public Forum 1493 B. The Designated Public Forum 1494 C. The Limited Public Forum 1495 D. The Nonpublic Forum 1497 II. THE STATE OF THE LAW ON THE GOVERNMENT’S FORUM CLOSURE POWER 1497 * J.D. Candidate 2012, University of Florida Levin College of Law. I would like to thank Tim Chandler and Jeremy Tedesco for the guidance they offered when I began working on this Note. I would also like to thank Professor Lyrissa Lidsky for giving me the knowledge, and Professor Sharon Rush for giving me the passion, necessary to write it. Thanks are also owed to my wife, Christine, for the cheer with which she endured my long nights at the keyboard, and to my Creator for His many blessings. 1 Pratt: An Open and Shut Case: Why (and How) the Eleventh Circuit Should Published by UF Law Scholarship Repository, 2011 1488 FLORIDA LAW REVIEW [Vol. 63 III. THE ELEVENTH CIRCUIT’S IMPLICITLY BROAD INTERPRETATION OF THE GOVERNMENT’S FORUM CLOSURE POWER 1501 IV. AN OVERVIEW OF A FIRST AMENDMENT RETALIATION CLAIM 1503 A. Elements of a First Amendment Retaliation Claim ....... 1504 1. Exercise of a Constitutionally Protected Right ......... 1505 2. Significant Adverse Governmental Action 1505 3. Causation: The Substantial Factor Formulation ........ 1506 B. The Government’s Affirmative Defense 1507 V. THE ELEVENTH CIRCUIT SHOULD RECOGNIZE A § 1983 CAUSE OF ACTION IN RETALIATORY FORUM CLOSURE CASES 1508 A. Retaliatory Forum Closure Cases Satisfy All the Elements of a First Amendment Retaliation Claim 1509 B. Retaliatory Forum Closure Transgresses Basic First Amendment Guarantees 1510 C. Granting a Cause of Action Is Consistent with the Purpose of § 1983 1511 D. Damages Sustained by Retaliatory Forum Closure Can Be Cured by Injunctive Relief of a Limited Duration 1512 CONCLUSION 1513