2012] RETALIATORY FORUM CLOSURE 499I
Acts generally lawful may become unlawful when done toaccomplish an unlawful end . . . .
—Justice Oliver Wendell Holmes, Jr.
The adoption of a facially neutral policy for the purpose of suppressing the expression of a particular viewpoint is viewpoint discrimination.
—Justice Samuel A. Alito, Jr.
Protest movements have positively shaped the American historicalnarrative: Federalist pamphleteers in the 1780s, suffragettes in the 1910s, and civilrights marchers in the 1960s all played leading roles. To many, Occupy WallStreet or Tea Party protesters are the contemporary protagonists in this greatAmerican story—chapter after chapter of bloodless revolutions to alter the statusquo. Regrettably, there is a substantial risk that, as in previous eras,
somegovernment officials will attempt to suppress these protesters. Althoughlongstanding prohibitions on viewpoint discrimination prevent targeted exclusionof disfavored speakers from public forums,
one way to achieve a similar result isto prevent everyone from speaking by closing public forums altogether. This risk is especially acute when a protest is closely connected to a specific location—suchas many of the Occupy Wall Street assemblies. This Note proposes to resolve courtdisagreement
over the questionable constitutionality of such closures by
1. W. Union Tel. Co. v. Foster, 247 U.S. 105, 114 (1918) (citation omitted),
quoted with approval in
Gomillion v. Lightfoot, 364 U.S. 339, 347–48 (1960). Morespecifically, “[a]n act taken in retaliation for the exercise of a constitutionally protectedright is actionable under § 1983 even if the act, when taken for a different reason, wouldhave been proper.” DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990) (quotingMatzker v. Herr, 748 F.2d 1142, 1150 (7th Cir. 1984)).2. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Lawv. Martinez, 130 S. Ct. 2971, 3017 (2010) (Alito, J., dissenting).3.
note 238 and accompanying text.4.
, Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S.819, 828–29 (1995). Viewpoint discrimination occurs when the government regulatesspeech “based on the ideology of the message.” E
1218 (3d ed. 2009).5.
Gay Guardian Newspaper v. Ohoopee Reg’l Library Sys., 235 F.Supp. 2d 1362, 1373–78 (S.D. Ga. 2002) (allowing retaliatory forum closure),
, 90 F.App’x 386 (11th Cir. 2003) (unpublished table decision),
Mo. Knights of the Ku KluxKlan v. Kansas City, Mo., 723 F. Supp. 1347, 1353 (W.D. Mo. 1989) (disallowingretaliatory forum closure).
§ 8:51 (3d ed. 1996 & Supp. 2010) (recognizing that whether governments canclose forums for discriminatory or retaliatory reasons is a difficult and unresolved question).The ambiguity surrounding retaliatory forum closure is partly due to the dearth of publishedcases addressing the issue.