Time, place, and manner regulations and the Supreme Court
Time, place, and manner regulations refer to the legal framework that governs how governments can impose restrictions on expressive activities, such as speech and assembly, in public spaces. These regulations are critical in balancing the right to free expression, as guaranteed by the First Amendment, with the need to maintain order and protect significant governmental interests. The Supreme Court has established specific criteria to determine the validity of such regulations, including that they must be content neutral, serve a significant governmental interest, be narrowly tailored, and allow for alternative means of expression.
The Court differentiates between various types of public forums, such as traditional public forums (like parks and sidewalks), designated public forums (like government-owned meeting spaces), and non-public forums (like military bases or airports), each receiving different levels of First Amendment protection. Notably, regulations are subject to stricter scrutiny in traditional public forums, where the right to free speech is most vigorously defended.
While the Court has upheld some regulations, it has also ruled against those that are overly broad or content-based, particularly in cases involving commercial or religious speech. These rulings underscore the ongoing challenge of ensuring that regulations do not infringe on the fundamental right to free expression while also considering the context in which that expression occurs.
Time, place, and manner regulations and the Supreme Court
Description: Permissible forms of prior restraint not based on content of expression that regulate when, where, and how expression may occur freely.
Significance: The Supreme Court usually considers the validity of time, place, and manner regulations in view of the forum in which the regulations are applied. Expressive activity occurring in a public, rather than private, forum receives the highest First Amendment protection.
In Heffron v. International Society for Krishna Consciousness (1981), Supreme Court Justice Byron R. White identified four characteristics of a valid time, place, and manner regulation: first, the restriction must be content neutral; second, the restriction must serve a significant governmental interest; third, the restriction must be no broader than would accomplish its purpose; and fourth, alternative means must exist to communicate the expression that is limited by the regulation. All four of the characteristics must be present for the regulation to be valid.
Time, Place, and Manner
The Court has allowed to stand ordinances that restrict loud noises at night when people are likely to be asleep and broadcast regulations that restrict indecent programming to safe harbor hours, between 10 p.m. and 6 a.m., when children are less likely to be in the audience.
The Court makes decisions regarding place according to the forum in which an activity occurs: a traditional public forum, a designated public forum, public property that is not a public forum, or private property. Traditional public forums are places that are accepted as sites where speeches may be made and people may assemble. Examples include public parks, street corners, and sidewalks. Speeches occurring in traditional public forums receive the highest First Amendment protection. In Lovell v. City of Griffin (1938), the Court made it clear that public streets are public forums. The city of Griffin, Georgia, had an ordinance requiring written permission from the city manager before distributing information in any form. The city argued that First Amendment protection applied to only the publication of information, not its distribution, but Chief Justice Charles Evans Hughes refuted that argument in the opinion he wrote for the Court.
Designated public forums are places specifically provided by the government for communication, assembly, and similar uses. These include government-owned auditoriums, meeting halls, fairgrounds, and student newspapers open to all students. Communication occurring in designated public forums receives First Amendment protection, but not as much as that occurring in traditional public forums; therefore, it is more subject to time, place, and manner regulations.
Some types of public property are not considered public forums and are closed to expressive activity on the part of the general public. Examples include airport concourses, prisons, and military bases. Private property is not a public forum; owners may decide who uses the property for expressive activity.
In Grayned v. Rockford (1972), the Court applied time, place, and manner regulations to demonstrations next to a school in session, saying the nature of the place, including the pattern of its typical activities, dictates the kinds of regulations of time, place, and manner that are reasonable. In its decision, the Court indicated that silent expression in a public library might be appropriate, although making a speech in the area where patrons are reading would not be. The manner of expression should be compatible with the normal activity of a particular place at a particular time.
Problems in Application
When time, place, and manner regulations were applied to commercial or religious speech (Metromedia v. San Diego, 1981) or obscene or indecent language, the Court generally found these restrictions invalid because they were content based. The same line of reasoning was used to invalidate the Communication Decency Act of 1996 (Reno v. American Civil Liberties Union, 1996). The Court generally frowns on ordinances that rely on the discretion of community officials to decide whether speech is allowed (Schneider v. New Jersey, 1939) because these deliberations often require officials to evaluate speech based on content.
In Madsen v. Women’s Health Center (1994), the Court applied the third prong of the 1981 validity test in considering whether an injunction directed at protesters at an abortion clinic was narrowly tailored enough to accomplish its goals without restricting more expression than necessary. The Court decided that a 36-foot buffer zone around clinic entrances and a driveway was permissible and not over broad, but that a 300-foot buffer zone around the residences of clinic employees and a 300-foot no-approach zone around the clinic were over broad, and therefore impermissible.
Bibliography
Dudley, William, ed. Mass Media. San Diego: Thomson/Gale, 2005.
Edelman, Rob, ed. Freedom of the Press. San Diego: Greenhaven Press, 2007.
Gillmor, Donald, Jerome Barron, and Todd Simon. Mass Communication Law: Cases and Comment. 6th ed. Belmont, Calif.: Wadsworth, 1998.
Hebert, David L. Freedom of the Press. Detroit: Greenhaven Press, 2005.
Pember, Don. Mass Media Law. Boston: McGraw-Hill, 1999.
Snepp, Frank. Irreparable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic Battle over Free Speech. Lawrence: University Press of Kansas, 2001.
Teeter, Dwight, Don Leduc, and Bill Loving. Law of Mass Communications: Freedom and Control of Print and Broadcast Media. 11th ed. New York: Foundation Press, 2004.