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Captive audiences and unwanted advertisement: The construction of public/private borders in legal discourse
Unformatted Document Text:  14 governmental regulation is content-specific or content-neutral. A content-specific regulation receives the same strict standard of scrutiny as the one required for traditional public forums 19 ; in contrast, content-neutral regulations are subject to a more lenient standard of scrutiny and only depends on a showing of a ‘significant interest’ 20 . Finally, a non-public forum is a residual category of governmental property on the border of private and non-private forums, and contains all the ‘places’ that don’t fall squarely in the previous two classes. Examples of non-public forums may include, but are not limited to: sidewalks connecting post offices to parking lots; government created channels for charitable fund raising; internal mail systems; mailboxes; advertising spaces on buses etc. Here, the standard of scrutiny depends on a showing of ‘reasonableness’ and in that is the most open to unspecified assumptions about exactly how the means and ends should be ‘rationally’ connected. In contrast, private forums are defined in terms of private ownership. Inferred privacy guarantees in the Bill of Rights shield private forums from governmental interference (absent specific circumstances, for example threats to national security). However, it is a matter of contextual debates whether or not they also preclude the abusive interference of non-governmental actors, such as commercial agents. The most consequential captive audience cases in terms of communicational exchanges are precisely those in which the courts establish whether administratively ‘gray’ spatial areas such as sidewalks or mailboxes, are from a legal point of view more akin to public or private forums. Deciding on spatial borders is one of the main rhetorical strategies 19 An example is the decision in Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, (1972), in which the Supreme Court struck down a city ordinance that prohibited school picketing, but specifically excluded labor-related picketing from the prohibition. 20 Examples of content-neutral regulations include those regulations on the ‘time, place and manner’ of speech.

Authors: Popescu, Mihaela. and Baruh, Lemi.
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14
governmental regulation is content-specific or content-neutral. A content-specific
regulation receives the same strict standard of scrutiny as the one required for traditional
public forums
19
; in contrast, content-neutral regulations are subject to a more lenient
standard of scrutiny and only depends on a showing of a ‘significant interest’
20
. Finally, a
non-public forum is a residual category of governmental property on the border of private
and non-private forums, and contains all the ‘places’ that don’t fall squarely in the
previous two classes. Examples of non-public forums may include, but are not limited to:
sidewalks connecting post offices to parking lots; government created channels for
charitable fund raising; internal mail systems; mailboxes; advertising spaces on buses etc.
Here, the standard of scrutiny depends on a showing of ‘reasonableness’ and in that is the
most open to unspecified assumptions about exactly how the means and ends should be
‘rationally’ connected.
In contrast, private forums are defined in terms of private ownership. Inferred
privacy guarantees in the Bill of Rights shield private forums from governmental
interference (absent specific circumstances, for example threats to national security).
However, it is a matter of contextual debates whether or not they also preclude the
abusive interference of non-governmental actors, such as commercial agents. The most
consequential captive audience cases in terms of communicational exchanges are
precisely those in which the courts establish whether administratively ‘gray’ spatial areas
such as sidewalks or mailboxes, are from a legal point of view more akin to public or
private forums. Deciding on spatial borders is one of the main rhetorical strategies
19
An example is the decision in Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, (1972), in
which the Supreme Court struck down a city ordinance that prohibited school picketing, but specifically
excluded labor-related picketing from the prohibition.
20
Examples of content-neutral regulations include those regulations on the ‘time, place and manner’ of
speech.


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