City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission

Mr. Justice Brennan, with whom Mr. Justice Marshall joins,

concurring in the judgment.

By stating that “the extent to which true contract negotiations . . . may be regulated [is] an issue we need not consider at this time,” ante, at 175, the Court’s opinion treats as open a question the answer to which I think is abundantly *178clear. Wisconsin has adopted, as unquestionably the State constitutionally may adopt, a statutory policy that authorizes public bodies to accord exclusive recognition to representatives for collective bargaining chosen by the majority of an appropriate unit of employees. In that circumstance the First Amendment plainly does not prohibit Wisconsin from limiting attendance at a collective-bargaining session to school board and union bargaining representatives and denying Holmquist the right to attend and speak at the session. That proposition is implicit in the words of Mr. Justices Holmes, that the “Constitution does not require all public acts to be done in town meeting or an assembly of the whole.” Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 445 (1915). Certainly in the context of Wisconsin’s adoption of the exclusivity principle as a matter of state policy governing relations between state bodies and unions of their employees, "[t]here must be a limit to individual argument in such matters if government is to go on.” Ibid. For the First Amendment does not command “that people who want to [voice] their views have a constitutional right to do so whenever and however and wherever they please.” Adderley v. Florida, 385 U. S. 39, 48 (1966). For example, this Court’s “own conferences [and] the meetings of other official bodies gathered in executive session” may be closed to the public without implicating any constitutional rights whatever. Branzburg v. Hayes, 408 U. S. 665, 684 (1972). Thus, the Wisconsin Supreme Court was correct in stating that there is nothing unconstitutional about legislation commanding that in closed bargaining sessions a government body may admit, hear the views of, and respond to only the designated representatives of a union selected by the majority of its employees.

But the First Amendment plays a crucially different role when, as here, a government body has either by its own decision or under statutory command, determined to open *179its decisionmaking processes to public view and participation.* In such case, the state body has created a public forum dedicated to the expression of views by the general public. “Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). The order sustained by the Wisconsin Supreme Court obviously contravenes that principle. Although there was a complete absence of any evidence that Holmquist’s speech was part of a course of conduct in aid of an unfair labor practice by the board, the order commands that the board “shall immediately cease and desist from permitting employes, other than [union] representatives ... to appear and speak at [board] meetings on matters subject to collective bargaining . . . .” Obedience to that order requires that the board, regardless of any other circumstances, not allow Holmquist or other citizens to speak at a meeting required by Wis. Stat. § 66.77 (1) (1973), now § 19.81 (1) (1976), to be open and dedicated to expressions of views by citizens generally on such subjects, even though they conform with all procedural rules, even though the subject upon which they wish to speak may be addressed by union representatives, and even though they are part of the “public” to which the forum is otherwise open. The order is therefore wholly void. The State could no more prevent Holmquist from speaking at this public forum than it could prevent him from publishing the same views in a newspaper or proclaiming them from a soapbox.

I therefore agree that the judgment of the Wisconsin Supreme Court be reversed.

See discussion and authorities collected in Brief for the AFL-CIO as Amicus Curiae 20-24.