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Is Military Newspaper a Nonpublic Forum?

Today, in Bryant v. Gates, the U.S. Court of Appeals for the D.C. Circuit held that the advertising section of the Defense Department's Civilian Enterprise Newspapers constitutes a nonpublic forum, and upheld the Department's ban on "political" advertisements.

Of particular interest may be Judge Kavanaugh's concurring opinion, in which he suggests the government could (and should) have defended its policy on the grounds that the newspapers constitute government speech, rather than a nonpublic forum, and cites our own Eugene Volokh in the process.

gattsuru (mail) (www):
Why does the nonpublic forum test matter? Isn't a ban on "political" speech prima facie not viewpoint-neutral?
7.15.2008 1:01pm
David M. Nieporent (www):
Why does the nonpublic forum test matter? Isn't a ban on "political" speech prima facie not viewpoint-neutral?
No; it's not content-neutral, but it is viewpoint-neutral.
7.15.2008 1:27pm
Student:

Why does the nonpublic forum test matter? Isn't a ban on "political" speech prima facie not viewpoint-neutral?


Think of it like this: it is viewpoint neutral because a Democratic party candidate cannot solicit campaign funds through these publications, but neither can a Republican (or a libertarian, or a communist, etc.).
7.15.2008 1:50pm
zooba:
It's not subject-matter neutral. Subject-matter neutrality and viewpoint-neutrality are components of content neutrality. Subject-matter regulations are those that regulate the subject-matter of the speech: i.e. what topics are permitted. The newspaper regulation is classic subject-matter regulation. Viewpoint regulation is a regulation of what viewpoints are permitted: for example, a regulation that only allowed pro-Military political ads would be viewpoint discrimination and likely unconstitutional.

Viewpoint-neutrality is much more significant a classification, as it can get a law struck down even when the law regulates speech otherwise outside of constitutional protection. St. Paul v. R.A.V.
7.15.2008 2:18pm