Professor Harry Kalven Jr once called the public forum “the poor man’s printing press.”1 A significant feature of the modern regulatory apparatus governing access to the public forum, however, is that it often charges user fees to cover the costs of directing traffic, policing, and administering the public forum.2 And, as is the case any time the government puts a price on an activity, some people will be too poor to pay. This Comment asks whether the government must waive fees for indigent applicants for use of this “poor man’s printing press,” and if so, when and why.
Public forum user fees should be a subject of significant concern. The right to have access to a public forum is vital to a healthy marketplace of ideas and serves important democratic values. It allows speakers to convey their views to a wide audience and gives them access to specific people and institutions by en-abling them to march on the streets, sidewalks, and statehouse steps near those to whom they would like to voice complaints. Furthermore, “the [open] public forum [ ] increases the likelihood that people generally will be exposed to a wide variety of people and views”—it is difficult to avoid seeing a parade or other demonstration in a public place.3 Even if indigent speakers are able to use other fora for free, fees still implicate distributional concerns because they ensure that wealthier speakers have their choice of forum while poor speakers do not. Choice of forum can be central to expression, so depriving poor speakers of choice means that they will have significantly fewer expressive possibilities than wealthy speakers.4
The circuit courts are currently split on the question whether an indigency waiver is required for public forum permitting fees. The majority of circuits have addressed the question under First Amendment doctrine and have held that the government is not required to waive fees for the indigent as long as there are ample alternative fora where the indigent can present their messages. The Eleventh Circuit, on the other hand, has held that lack of an indigency waiver renders a permitting fee facially invalid, relying partially on the Supreme Court’s 1974 decision in Lubin v Panish.5
This Comment argues that the Eleventh Circuit’s result is correct, but arrives at that conclusion using the Equal Protection Clause rather than the First Amendment. The Supreme Court has held in a series of equal protection and due process cases that indigents cannot be prevented by fees from exercising certain fundamental rights. This Comment argues that these cases should govern the issue of public forum fee waivers.
The Comment begins with a brief summary of the constitutional law governing state regulation of the public forum. Part II examines how the circuits have analyzed the question of indigent fee waivers. Part III evaluates two major arguments against requiring fee waivers and concludes that, while First Amendment doctrine does not provide sufficient clarity on the issue, it suggests that at least some—and possibly all—fees are permissible without an indigency waiver. Part IV, however, argues that a Fourteenth Amendment equal protection analysis is a better conceptual fit and suggests a different result: an indigency waiver is required even in cases in which the speaker can use an alternative forum.
- 1. Harry Kalven Jr, The Concept of the Public Forum: Cox v. Louisiana, 1965 S Ct Rev 1, 30.
- 2. For purposes of this Comment, the phrase “public forum” means “quintessential” public fora—public streets, parks, and sidewalks—plus public property that has been opened up by the government for expressive purposes. See Perry Education Association v Perry Local Educators’ Association, 460 US 37, 45 (1983).
- 3. Cass Sunstein, republic.com 30–32 (Princeton 2001).
- 4. See Part IV.C.3.
- 5. 415 US 709 (1974).