Forum Delegation: The Birth and Transposition of a New Approach to Public Forum Doctrine

This paper introduces and explores the concept of forum delegation: the power of government officials to suggest which forums to allow speakers to use. The concept is born out of a recent legal battle between the University of Minnesota and conservative speaker Ben Shapiro, in which the UMN required Shapiro to speak in a venue away from the heart of campus due to concerns over the school’s ability to provide adequate security for the event. The paper first analyzes the UMN case to assess the constitutionality of forum delegation in the context of regulating speech and public universities. Next, it applies Robert Post’s theory of constitutional domains to transpose forum delegation from the public university context to situations in which cities must deal with controversial speakers. The goal in explicating the concept of forum delegation within this latter context to is give cities a tool in which to constitutionally balance the interests of speakers, audience members, public safety concerns, and efficient resource management. Such a tool can be especially helpful at a time when provocateurs have sought to weaponize the First Amendment through politicizing and polarizing free speech principles