When does private property become a public forum?

Justice Owen J. Roberts’s opinion in Hague v. Committee for Industrial Organization (1939), in which he wrote: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”

In the situation at hand, where Libertarian Party candidate signs were placed on the seam dividing the road and a private property, how is this location categorized? Does it belong to the property owner or the public? Is political speech protected here?

There are three types of forums, traditional public forums, designated public forums, and nonpublic forums. Traditional public forums are places which “have been traditionally open to the public for expressive activity” and used for “communicating thoughts between citizens." Public streets are traditional public forums. A street does not lose its status as a traditional public forum simply because it is privately owned. If the street looks and functions like a public right of way, it is categorized as a traditional public forum regardless as to who holds ownership over it.

Brindley v. City of Memphis, 2:17-cv-02849-SHM-dkv, 2018 U.S. Dist. Lexis 117481 (W. D. Tenn, Jul. 13, 2018). The Sixth Circuit summarized the judicial opinions regarding whether a private street is a traditional public forum according to a two-part test: (1) is the privately-owned street physically indistinguishable from a public street and (2) does the street function like a public street. If both of these criteria are met, it is a “traditional public forum."

In the Case of the Vanishing Public Forum, 1991 U. Ill. L. Rev. 949, 951. The parking strips in which Collier and his supporters placed his political signs lie between the "streets and sidewalks" and thus are part of the "traditional public forum". Because these places occupy a special position in terms of First Amendment protection, the government's ability to restrict expressive activity is very limited.

I'm a Libertarian Minarchist. This means the state needs to shrink down to the least amount of government possible. The government serves only one purpose - to ensure our natural rights are protected and when infringed upon, punished. A court determining where property lines begin and end is within the scope of what government should be determining when a dispute arises.

Functionally different than an easement, a public right of way are lines typically between 50 and 60 feet in length, starting in the center of a road and travel 25 feet on either side creeping into private property lines. The width and starting points can vary depending on local or county determinations. This area is used for public use such as travel, utility access and yes, public forums. For example, if you've ever erected a fence on your property, it is to be built set back a certain amount of feet per local or county requirements.

I am someone very easily infuriated with the need for permits to build or do things on my own property. I think you should never need any permissions to do what you with property you own. You should be able to build what you want, own whatever animals you want, invite who you want onto your property, live without the grid etc. The consequences of these choices are your own to burden. I personally feel code enforcement officers are the slimiest, least helpful arms of the state. I hope each one of them sleeps ill at night. 

However, imagine for a second a perfect Libertarian world where everything is private property. A world where unowned land (public land) does not exist. Fences are erected at the exact millimeter of a property ending to begin another. How would anyone walk anywhere? How would mail be delivered? How would people communicate with each other? How would utility lines be accessed? The list of questions goes on. There must be some degree of rational planning behind community's proper functioning. A 25-foot line in either direction from the center road is a very small margin and not unreasonable to allow for the proper function of a community.

This is why the Libertarian signs that were taken from the intersection of Plains Road and Northrupt Road in Augusta New Jersey, was indeed a theft. The signs were placed approximately one foot from the road and several feet from a property fence line. Only the Libertarian signs were taken, not the opposing party signs.

Informing the public about the candidates on their ballot is essential to the democratic process. These small battles won for free speech and a free election process are invaluable. 

Frivolous is a word tossed around a lot. New Jersey Senator James Beach and Senator Paul Sarlo called candidates "frivolous" when sponsoring a bill (S3994) raising the signature threshold for candidates getting on the ballot that passed in 2025 (in the middle of a petitioning season).  This was to avoid "frivolous" candidates from cluttering up the ballot. There is no such thing a frivolous candidate. Voters deserve options whether you personally consider them to be a viable choice or not.

These signs that were stolen may have only been valued at $16 and I will be the first to admit political signs don't win elections but to me, any infringement on our freedoms is an important battle to fight. Freedoms are lost slowly, one small incident at a time. 

If you disagree with the many supreme court rulings had over political sign placement and relevant property line disputes, then where is the public forum? Where is our speech protected? Take second to look up your town's local ordinances regarding political signs on public property. Do you need a permit? Is it outright banned? Governments, even local ones, have very limited scope on how they can regulate speech on public property.

Lana Leguía

This article was written by a human; no AI was used.