“Constitutional Law—First Amendment Right of Free Speech—Prior Restraint of Speech and Time, Place, and Manner Restrictions.” Tennessee Law Review 65
By Tasha Blakney, Partner, Eldridge & Blakney P.C.
The First Amendment to the U.S. Constitution guarantees Freedom of Speech. This guarantee generally safeguards the right of individuals to express themselves without governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.
The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions. To pass muster under the First Amendment, TPM restrictions must be contentneutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. Application of this analysis varies in accordance with the circumstances of each case.
The rationale supporting a particular TPM restriction may receive less rigorous scrutiny when the government seeks to regulate speech of lower value such as Obscenity and fighting words. Obscene speech includes most hard-core Pornography, while fighting words include offensive speech that would incite a reasonable person to violence. Conversely, the government must offer “compelling” reasons for regulating highly valued forms of expression, such as political speech. Some speech, such as commercial advertisements, is valued less than political speech but more than obscenity or fighting words. The government may impose reasonable TPM restrictions on this intermediate category of speech only if it can advance a “significant” or “important” reason for doing so.
Time restrictions regulate when individuals may express themselves. At certain times of the day, the government may curtail or prohibit speech to address legitimate societal concerns, such as traffic congestion and crowd control. For example, political protesters may seek to demonstrate in densely populated cities to draw maximum attention to their cause. The First Amendment permits protesters to take such action, but not whenever they choose. The Supreme Court has held on more than one occasion that no one may “insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech” (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 ). In most instances a commuter’s interest in getting to and from work outweighs an individual’s right to tie up traffic through political expression.
Place restrictions regulate where individuals may express themselves. The Supreme Court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. Traditional public forums are those places historically reserved for the dissemination of information and the communication of ideas. Consisting of parks, sidewalks, and streets, traditional public forums are an especially important medium for the least powerful members of society who lack access to other channels of expression, such as radio and television. Under the First Amendment, the government may not close traditional public forums but may place reasonable restrictions on their use.
The reasonableness of any such restriction will be evaluated in light of specific guidelines that have been established by the Supreme Court. First, a restriction must be content-neutral, which means the government may not prohibit entire classes of expression, such as speech concerning poverty, drug abuse, or race relations. Second, a restriction must be viewpoint-neutral, which means that it must apply uniformly to all speech; that is, it may not silence only those speakers whom the government opposes or sanction only those whom the government supports. Third, a restriction must burden speech no more than is necessary to serve an important government interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech, such as litter, unrest, and disorder, will normally satisfy these guidelines.
Limited public forums are those places held out by the government for civic discussion. Capitol grounds, courthouses, state fairs, and public universities have all qualified as limited public forums for First Amendment purposes. Although the government may designate such places as sites for public speech under certain circumstances, the Supreme Court has recognized that individual expression is not the sole objective served by limited public forums. For example, courthouses are primarily designed to administer justice, though important social discourse often takes place on the courthouse steps. Consequently, the First Amendment gives the government greater latitude in regulating limited public forums than traditional public forums.
The government is allowed to regulate non-public forums with even greater latitude. Non-public forums include privately owned property and publicly owned property devoted almost exclusively to purposes other than individual expression. Airports, jailhouses, military bases, and private residential property have all been deemed to be nonpublic forums under the First Amendment. Public sidewalks and streets that abut private property normally retain their status as traditional public forums, however (Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 ).
In nonpublic forums the government may impose speech restrictions that are reasonably related to the forum’s function, including restrictions that discriminate against particular viewpoints. For example, in Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Supreme Court ruled that a rival teachers’ union could be denied access to public school mailboxes, even though the elected union representative had been given access by the educational association. This restriction was reasonable, the Court said, in light of the elected representative’s responsibilities to negotiate labor agreements on behalf of the union.
Manner restrictions regulate the mode of individual expression. Not every form of expression requires use of the written or spoken word. Some of the most visceral impressions are made by Symbolic Speech. Symbolic speech can include something as complicated as an algebraic equation or as simple as the nod of a head. Under the First Amendment, symbolic expression often takes the form of political protest. Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the Free Speech Clause (texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 ).
When the government attempts to regulate symbolic expression, courts balance the competing interests asserted by the litigants. Regulations that are targeted at suppressing a symbolic message will be closely scrutinized by the judiciary, while regulations that serve compelling government interests unrelated to the expression of ideas will be subject to less exacting judicial scrutiny. For example, in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984), the Supreme Court upheld a federal regulation that prohibited sleeping in certain national parks, despite the objections of protesters who had camped out in a national park to symbolize the plight of the homeless. The Court said that the regulation was not aimed at suppressing symbolic expression, because it applied to all persons, and not just the protesters involved in the case. The Court also noted that the regulation was reasonably designed to preserve national parks by minimizing the wear and tear that can be caused by campers. Finally, the Court emphasized that the protesters were free to carry out their vigil at other venues across the country.
All TPM restrictions must provide speakers with alternative channels for communicating ideas or disseminating information. Unlike millionaire moguls and corporate giants, the average person on the street does not commonly communicate through the mass media. Most people do not hold press conferences, and if they did, few members of the media would attend. Instead, the great bulk of communication takes place through the circulation of leaflets, hand-bills, and pamphlets, which most people can distribute and read in a cheap and efficient manner. As a result, courts are generally sensitive to protecting these modes of communication, and TPM restrictions limiting their distribution usually founder.
The Internet, however, has fast become an easy alternative for mass distributing information. As such, it is often difficult to apply TPM restrictions. For example, politicians use bulk E-Mail as a quick way to reach thousands, even millions, of their constituents. Called “political spam,” this method of campaigning has both advocates and detractors. Opponents claim that unsolicited political e-mails are an invasion of privacy. As precedence, they point to the Eighth Circuit ruling in Van Bergen v. Minnesota, 59 F.3d 1541 (1995), which upheld a Minnesota state law prohibiting candidates from using a device that automatically dialed residential telephone numbers and played a prerecorded political campaign message. According to the court, “the telephone system is a private channel of communication,” and the Minnesota law rightfully placed restrictions on time, manner, and place of speech.
Proponents claim that e-mail is not as equally invasive as a telephone call since e-mail gives the receiver an opportunity to ignore content by simply deleting the message. They also point to the benefits of political e-mail. First, given the large price tag of running a campaign, political e-mails provide a very real way to cut costs. In addition, they contend that e-mail provides a more direct way for politicians to connect with voters, since e-mail offers a back-and-forth method of communication. Most important, advocates stress that both political debate and communication over the Internet are protected by the First Amendment (Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 .