Legal Commentary

How many constitutional categories of public forums are there and what are their names?  This should be an easy question to answer, right?

In the recent case of Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), the Supreme Court majority stated (and the dissent did not dispute) that there are three categories:  traditional public forums, designated public forums, and limited public forums. Id. at 2984 n. 11.  Compare this to the Supreme Court decision of Arkansas Educational Television Comm'n v. Forbes, 523 U.S. 666 (1998), in which the Supreme Courts divides forums into the categories of traditional public forums, designated public forums (whether open to "all or part of the public"), and nonpublic forums.  

Evidently, the Court now conceives of the term "designated public forum" to refer only to a forum that is designated as open to the public as a whole rather than to merely a part of it.  Does the distinction between the limited public forum and the "nonpublic forum" therefore collapse?  Or did the Court just omit to mention the nonpublic forum as a category because Martinez so clearly involved a limited public forum?  Even before this decision, the constitutional standards applicable to the limited public forum and the nonpublic forum weren't all that different, if, indeed, they were different at all.  It was clear, even prior to Martinez, that in both the limited public forum and the nonpublic forum, the State was required to maintain viewpoint neutrality and application of state-imposed content parameters was subject only to review for whether it was reasonable in light of the purposes of the forum.  But is there really no difference between the two now?

Does this category confusion drive anyone but me crazy?