Definition and Early History:
Time, place, and manner restrictions refer to a legal doctrine enforced under the United States Constitution and Supreme Court. The Merriam-Webster Dictionary defines time, place, and manner restrictions as “[A] restriction on the time, place, or manner of expression that is justified when it is neutral as to content and serves a significant government interest and leaves open ample alternative channels of communication.[1] The goal of time, place and manner restrictions is to regulate speech in a way that still protects freedom of speech.[2]
While freedom of speech is a fundamental right, it is not absolute, and therefore subject to restrictions. Time, place, and manner restrictions are relatively self-explanatory. Time restrictions regulate when expression can take place; place restrictions regulate where expression can take place; and manner restrictions regulate how expression can take place. A restriction may occur if someone is protesting loudly in front of someone’s house in a neighborhood in the middle of the night, or if someone was sitting in the middle of a busy intersection during rush hour, for example. These actions would cause problems for other people, so restricting speech in terms of time, place, and manner addresses a legitimate societal concern.[3] Restricting this speech would be constitutional because the restrictions are content neutral, meaning they would restrict anyone from saying anything in these situations, no matter what their message is; they are narrowly drawn, meaning the restriction was examined specifically for the case in question to determine how to serve the governmental interest at stake; the restrictions serve a significant governmental interest, meaning other fundamental rights are important to citizens, such as sleeping peacefully at night or people getting to work or home from work; and there are plenty of alternative methods of communicating their message, such as writing an editorial in the paper or moving to the sidewalk at a different time in the day.
One of the earliest mentions of the principle of time, place, and manner restrictions comes in the Cox v. State of Louisiana (1965) case. Justice Goldberg delivered the opinion and stated, “From these decisions, certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.[4]” From this, the United States Supreme Court doctrine of time, place, and manner restrictions emerged.
Time, Place, and Manner Restrictions in Regards to the First Amendment:
The First Amendment of the United States Constitution declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[5]"It is easy to mistakenly interpret the First Amendment as granting people the right to say whatever they want, whenever, and wherever they want. However, the First Amendment was never intended to provide such power,[3] because it does not protect speech at all times and in all places.[6] The United States Supreme Court has consistently ruled that the government has the power to impose limits on free speech in regards to its time, place, and manner of delivery. As noted in Clark v. Community for Creative Non-Violence (1984), “... [time, place, and manner] restrictions… are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.[7]” These restrictions are proved constitutional time and time again, in many Supreme Court cases.[7] It is important to understand the limits to the protection of freedom of speech by learning about time, place, and manner restrictions.
Related Public Forum Doctrine:
Time, place, and manner restrictions are often linked with the public forum doctrine. The Supreme Court has established three types of forums: traditional public forums, designated forums, and nonpublic forums.[8]
Traditional public forums include public areas, such as parks and sidewalks. These areas have the strongest protections under the First Amendment. Although, traditional public forums are still subject to traditional time, place, and manner restrictions, meaning restrictions must be content-neutral, serve a significant governmental interest, and allow for ample alternatives.[9] As noted in United States Postal Service v. Council of Greenburgh Civic Associations (1981), “The First Amendment does not guarantee access to property simply because it is owned or controlled by the government.[10]” Justice Marshall in Grayned v. City of Rockford (1972), also noted something similar, saying “The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.[11]” The power of restriction has been seen in many cases, such as in The City of Chicago v. Alexander (2014) case when the Occupy movement was restricted because the park was closed and they were not allowed to protest there during that time. Nevertheless, speech cannot be discriminated against because of the views of the speaker, or the content of their speech.[8] These are generally called View-Point and Content-Based Limitations. Some people argue that time, place, and manner restrictions are relied on too heavily by free speech doctrine, resulting in less free speech allowed in public forums.[12] This view is highly contested. Other people, such as Justice Pierce, who delivered the opinion in The City of Chicago v. Alexander (2014), argue restrictions are only meant to defer speech, in order to limit problems that are put on society.[6]
A designated forum is usually public property the government opens for public expression, such as theatres and state schools.[8] The difference between traditional public forums and designated public forums is in a designated public forum the government may limit access to the area to only certain groups, speakers, or subjects, so long as their rules are consistent.[13] Designated public forums are subject to the same restrictions as traditional public forums, meaning the time, place, and manner restrictions must be content-neutral, serve a governmental interest, and allow ample alternatives.[13] Restrictions in a designated forum can be seen in cases such as Widmar v. Vincent (1981) and City of Madison Joint School District v. Wisconsin PERC (1976).[14]
Nonpublic forums include airport terminals and internal mail systems.[8] In these areas the government has significant control over the speech they allow in these forums because the government acts like a private owner here. This means the government may restrict any speech, as long as the restrictions are reasonable, and do not come in to play because a public official wants the speech restricted. Therefore, content may be restricted because of the subject or the speaker. However, the restrictions must align with the purpose of the area and be viewpoint neutral.[13] This doctrine has been applied to cases such as Perry Education Association v. Perry Local Educators’ Association (1983) and Hazelwood School District v. Kuhlmeier (1988).[14]
Time, Place, and Manner Restrictions in Supreme Court Cases:
Time, place, and manner restrictions are intended to allow convenience and order to prevail.[3] Some examples of time, place, and manner cases include: Grayned v. Rockford (1972), Heffron v. International Society for Krishna Consciousness, Inc. (1981), Madsen v. Women’s Health Center (1994), and recently Hill v. Colorado (2000).[2] As you can see, most time, place, and manner cases involve the government as one of the parties in the case.
Because time, place, and manner restrictions put value on convenience and order, there is certain behavior that is not permitted. For example, you cannot yell “fire” in a crowded place when there is no fire. This action would cause an uproar of chaos, and has the potential to cause immediate harm to others. For those reasons, this action would not qualify as a protected right under the First Amendment. As Justice Holmes put it in Schenck v. United States (1918), “Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.[15]” While free speech is important in our society, there are other values in our society that are equally important, such as public order and public peace. The role of time, place, and manner restrictions must be balanced with conflicting values in our society.
It is important to understand how judges and other governmental entities decide what speech to limit in regards to time, place, and manner. As previously stated, in order for the Supreme Court and other governmental entities to impose time, place, and manner restrictions, they must decide that the restrictions are content neutral, narrowly tailored, serve a significant governmental interest, and allow other alternative methods of communication.[7] If the restrictions can pass these four requirements, they will align with the First Amendment restriction provisions. Of course, these restrictions will vary from case to case. Ideally, suppressing speech is considered wrong, but in some cases, it is necessary to restrict speech for the greater good of society. It must be decided that the speech is a nuisance in regards to its time, place, or manner of delivery, such as creating a clear and present danger. If there is a problem with the time, place, or manner of delivery of the speech, Congress has the right to limit such speech.[15]
Recent Time, Place, and Manner Case- Chicago v. Alexander (2014):
As noted in The City of Chicago v. Alexander (2014), “The [F]irst [A]mendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired. A state may therefore impose reasonable restrictions on the time, place or manner of constitutionally protected speech occurring in a public forum.[6]” It is permitted to restrict speech in terms of time, place, and manner, so long as there are ample alternatives available. The ample alternative provision can cause confusion for those trying to understand time, place, and manner restrictions. What qualifies as an acceptable alternative? An alternative does not need to be the first choice of a way to communicate, nor does it need to be the same method of communication.[6] That is, if the original method of communication was vocal, an acceptable alternative could be written. In fact, an ample alternative does not even have to reach the same audience as the original speech.[6] In the case of The City of Chicago v. Alexander (2014), an ample alternative to protesting in Grant Park after hours could have been to protest on the sidewalk across the street, or to protest in the morning in the park when it reopened. It is important to remember that time, place, and manner restrictions are not intended to restrict the content of what is being said, instead they restrict when, where, or how the message is being communicated.
As The City of Chicago v. Alexander (2014) case pointed out, in United States v. O’Brien (1968) the court created a test for the content neutral provision.[6] The O’Brien (1968) court declared, “... a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.[33]” Content neutrality is an essential provision to meet because if a law lacks content neutrality due to targeting a particular viewpoint or means of expression, it will often violate other constitutional principles, such as the equal protection clause.[34] Expressing content neutrality is essential in successfully limiting speech through time, place, and manner restrictions in a public forum.
- ^ "Time, Place, or Manner Restriction". Merriam-Webster Law Dictionary.
- ^ a b Chemerinsky, Erwin (2006). Constitutional Law. New York: ASPEN. pp. 1131–1134.
- ^ a b c "Time, Place, and Manner Restrictions". West's Encyclopedia of American Law.
- ^ "Cox v. State of Louisiana 379 U.S. 536". Legal Information Institute Cornell University Law School,. 1965.
{{cite web}}: CS1 maint: extra punctuation (link) - ^ US Constitution Amendment 1. 1791.
- ^ a b c d e f City of Chicago v. Alexander IL App (1st) 122858. 2014.
- ^ a b c Clark v. Community for Creative Non-Violence 468 US 288. 1984.
- ^ a b c d "Forums". Legal Information Institute. Cornell University Law School.
- ^ O’Neill, Kevin (1999). "Disentangling the Law of Public Protest". Loyola Law Review.
- ^ USPS v. Council of Greenburgh Civic Assns., 453 U.S. 114. 1981.
- ^ Grayned v. City of Rockford, 408 U.S. 104. 1972.
- ^ Inazu, John (2015). "The First Amendment's Public Forum". William & Mary Law Review. 56.4.
- ^ a b c O'Neill, Kevin (1999). "Disentangling the Law of Public Protest". Loyola Law Review. 45: 411–526.
- ^ a b "The Public Forum". Justia US Law.
- ^ a b Schenck v. United States 249 U.S. 47. 1918.