Navigating the Troubled Waters of the Public Forum: The Public Trust Doctrine as a Life Jacket

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50 Ariz. St. L.J. 335 (2018). Guillaume J. Aimé.

The First Amendment protection is failing in an important setting of our current society: advertising spaces in public transit systems. The United States courts of appeals are split as to how to characterize such spaces for purposes of First Amendment protection. Justice Alito and Justice Thomas made their intent to resolve that issue very clear in 2016 in their dissent from the denial of certiorari in American Freedom Defense Initiative v. King County. They “see no sound reason to shy away from this First Amendment case. It raises an important constitutional question on which there is an acknowledged and well-developed division among the Courts of Appeals One of this Court’s most basic functions is to resolve this kind of question.”Despite the split between the circuits, the courts all agree the analysis requires applying the Public Forum Doctrine. The Public Forum Doctrine originated from the Supreme Court of the United States in two cases: Perry Education Ass’n v. Perry Local Educators’ Ass’n4 and Cornelius v. NAACP Legal Defense & Education Fund.

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