Nonpublic fora and "incompatibility" analysis

[Eugene Volokh]

    I've always been quite skeptical about "incompatibility" analysis
as a substitute for the forum structure, largely because it turns on
a generally undefined concept -- what constitutes "incompatibility."

    For instance, does any interference with the efficiency of
government services -- even that flowing from speech being offensive
or distracting or persuasive -- make the speech "incompatible" with
the forum's purposes?  If so, then one can easily argue that
picketing is "incompatible" with the purposes of the sidewalk outside
a government building.  If not, then one can easily argue that
picketing is "compatible" with the purposes of the hallway outside a
government employee's office, a situation that I continue to believe
is an easy case for restricting speech.  Of course, one could add
some factors to the compatibility analysis that would end up creating
a distinction between these two situations -- but then, I suspect,
we'd just be mostly reinventing public forum doctrine.

    Of course, I might be wrong:  Perhaps there's an
"incompatibility" framework that *is* superior to the forum analysis.
But to make this case, I think one has to describe with some
particularity the details of how the "incompatibility" decision is to
be made.  Without such details, incompatibility might still look
appealing, but only because the devil we don't know often looks
better than the devil we do.



Marie Failinger writes:

> And there is even a point to creating "contemplative public space"
> at places like memorials and maybe even in courts.  But to
> extrapolate from a rule that you can't bust down a government
> worker's office door (or the entire office for those who only have
> cubicles) that people shouldn't be allowed to speak in the
> hallways, on the bulletin boards, elevators, or foyer of a public
> building simply because it is primarily a workplace is going too
> far, in my view. And these distinctions can be made with
> TPM/incompatibility regimes, but not under the public forum regime.
>
>  On Thu, 18 Dec 1997, Rob Weinberg wrote:
>
> > As at least one government employee on this list (the Alabama Attorney
> > General's Office), let me send an "amen" to Eugene on this one. My
> > apologies to Marie for not knowing the nature of Hamline, that is whether
> > it's a public or private school, but I can assure her, her sentiments might
> > be a little less "ivory tower" ;-) if she applied her hypothetical to her
> > own offices.
>
>
> Marie A. Failinger
> Hamline University School of Law
> mfailing at piper.hamline.edu
>

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