United States Constitution

Any restriction or regulation on speech that is content neutral does not have to meet strict scrutiny, but still must be considered a reasonable time, place, or manner restriction. These restrictions must be justified unrelated to the content of the speech, must serve a significant government interest, be narrowly tailored to serve that interest, and must leave open ample alternative channels for communicating that information.

A Minnesota State Fair regulation which banned distributing literature except for at booths was held to be a constitutional time, place, or manner restriction in Heffron v. International Society for Krishna Consciousness. The Court reasoned that the restriction was content neutral because the booths were open to anyone “first come first served”. Limiting literature hand-outs to booths fulfilled the significant government interest of keeping pedestrian traffic orderly within the fair ground. Lastly, the Court explained that the defendants had multiple other ways to communicate with their audience both on and off the fair grounds.

The modern test for time, place, and manner restrictions comes from the case Ward v. Rock Against Racism. The 1989 case revolved around a bandshell in New York City’s Central Park. After receiving complaints about noise volume levels, as well as having experienced unruly audiences disappointed with sound quality, the City required that all performances would have use the City’s own sound system and audio technician. A sponsor who hosted yearly concerts at the band shell sued, claiming this regulation violated the First Amendment. The Court of Appeals held that the regulation was unconstitutional because there were less restrictive ways to control the volume levels that did not include interfering with the sponsors sound mixing.

However, the Supreme Court overruled this and declared the regulation constitutional. First, the Court determined the bandshell to be a public forum because it was open to all. Next, the Court proceeded with a time, place, and manner evaluation of the regulation. Since the regulation applied to all performances at the bandshell regardless of content and was aimed at fixing sound issues and crowd control, it was justified without considering the content. The regulation was “narrowly tailored to serve a significant government interest” because the City had a significant interest in controlling the sound to limit complaints and stop unruly crowds, and was narrowly tailored because other solutions would be “less effective” while this regulation was still “not overly broad.” This second part of the test specifically overruled the lower court – the government does not have to prove a regulation is the “least restrictive” solution, the government regulation simply cannot be overly broad. The plaintiff must prove this overbreadth rather than the government having to prove it is the least restrictive. Lastly, the court found that sufficient alternative channels existed because the concerts were not actually being prohibited in any way- only the sound levels were affected, and in some circumstances, may be even louder under the government solution (fixing low volume issues that caused angry crowds).

Regulations of public forums has recently taken the spotlight due to high profile cases dealing with restrictions of protestors outside of abortion clinics. In the 1997 case Schenck v. Pro-Choice Network Of Western New York, the Court gave a New York District Court’s injunction restricting protesting around abortion clinics a mixed ruling. The Court first determined that the restrictions were content neutral – the injunction wasn’t based on the speech of the protestors, but on prior illegal actions (blockading the clinic and violent harassment). A permanent “buffer zone” which protestors could not enter was held as Constitutional, and justified by the state’s interest in the operation of its facilities, controlling traffic, and protecting the safety of woman. However, the “floating” buffer zone of 15 ft. around anyone entering the clinic was held to be unconstitutionally broad. The floating buffer was wide enough that in the case of certain clinics, protestors could be forced into the street due to limited sidewalk size. Additionally, the uncertainty of how to comply with the law (such as when a protestor must keep moving to stay far enough apart from the buffer zone) may lead to substantially more restriction than is allowed.

The Court next addressed the issue in 2000 with Hill v. Colorado. The challenged law in question was a state statute that prohibited anyone within 100 ft. of an abortion clinic from “knowingly” approaching within 8 ft. of a person entering or leaving the clinic “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” The Court decided that the statute was content neutral – no one could approach someone using the clinic for those purposes, regardless of the subject matter (“the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries”). Distinguishing between other communication and “oral protest, education, or counseling” was not equivalent to blocking a specific subject matter or view. Unlike Schenck, the whole statute, including the 8 ft. mobile buffer zone, was held to be constitutional. This time, the narrowly tailored prong of the time, place, and manner test was met by the statute. Colorado’s 8 ft. limit still allowed normal conversation, and a protestor was only in violation if they “knowingly approached” (therefore not forcing the protester to constantly move back if they were approached, like in Schenck).

The ruling in Hill was controversial, garnering fierce dissents from the conservative Justices. McCullen v. Coakely, the most recent Supreme Court case on the topic, has seen the court move in the opposite direction of Hill. A Massachusetts statute making it a crime to enter or remain within 35 ft. of an abortion clinic (if you were not entering or exiting the facility) was held to be unconstitutional. Again, the second the prong of the time, place, and manner test was at issue. The Court held that the statute was not narrowly drawn and substantially burdened plaintiff’s speech more than was necessary to achieve the State’s goals. Importantly, the plaintiffs in this case were “counselors” rather than protesters – they claimed that their goal was to discuss other options with women seeking abortions, rather than simply protest. They claimed they could not do this with the buffer, whereas protesters could still continue loudly protesting outside the clinic. Additionally, the Court found that the state had enough laws in place already to deal with protesters blocking entrances aside from this statute, making it an unnecessary burden. This decision is has caused both speculation and controversy, because it did not go as far as to overrule Hill, thereby leaving many questions unanswered.

Ward v. Rock Against Racism (1989)

Schenck v. Pro-Choice Network Of Western New York (1996)

Hill V. Colorado (2000)

McCullen v. Coakley (2013)

International Society for Krishna Consciousness, Inc. v. Lee (1992)

Arkansas Educational Television Commission v. Ralph P. Forbes (1998)

By focusing on the subject matter of the protest, the Court had basically created a content-based distinction. Because of this, Tanner was overruled in 1976 Hudgens v. National Labor Board Relations. The reasoning in Logan Valley was also critiqued. Comparing the company town from Marsh to the shopping center defendant in Hudgens, the Court found them very different – the private company in Marsh having actually assumed control as a governing body for the town compared to Hudgen’s simply operating a mall. The Court held that there was no First Amendment right to use a privately owned shopping mall for speech.

Four years later, the Court’s opinion shifted again to what is now the current stance on the topic. The decision in PruneYard Shopping Center v. Robins revolved around a Californian constitutional amendment which allowed for the use of private shopping malls for speech. Distinguishing this case from their opinion in Hudgens, the Court noted that State constitutions can expand rights, and that no such provision was at issue in other prior upheld the provision, leaving room for protected expression in privately owned shopping malls via state law.