What rules, if any, must the government follow before they may impose restraint speech for time, place and manner?
Over the past 50 years the courts have amassed a body of law that describes the rules used to impose time, manner and place restrictions on speech.
- The regulation must be content neutral. As an example, if cities allow newspapers to be distributed on city sidewalks, they may not forbid other kinds of news materials. If a city allows handbills to be distributed for one point of view, they may not disallow handbills for other points of view.
- The regulation must serve a substantial government interest, and the government must explicity demonstrate this interest. As an example, cities may have a substantial interest in a safe and orderly flow of traffic on busy street corners. Thus, they may not allow vendors to sell papers at busy intersections. Where this rule gets "dicey" is when police stop public gathers because of the "fear of violence." In cases like these, the courts have held that there must be evidence of immenent lawless action.
- There cannot be a total prohibition on communication. There must be other alternative means for a communicator to present their information. As an example, state college campuses are catagorized as a designated public forum. This means that universities are justified in imposing some time, place and manner restrictions. Thus many campuses create free speech zones where people can say pretty much anything they want.
- The rules may not be any broader than necessary to serve the government interest. The courts call this "narrow tailoring." For instance, if a city were concerned about newspapers with suggestive personal advertisements it could not ban the sale of all newspapers, or all advertising as a means of combating the problem.
The courts have developed these rules for time, place and manner restrictions to help balance the rights of free speech versus the needs of government and communities. These rules do not apply to owners and managers of private businesses and property--and in some ways that's a shame given that some US corporations have as budges, power and influence that exceed that of some nations.
More recently, these rules have become increasingly controversial as the government continues to impose restrictions on speech (depending upon which political party is in power at the time) to recipients of federal funds from various sources.
- For instance, in Rust v. Sullivan, the courts upheld that the government could forbid doctors whose clinics received funding from the Title X Health Services Act from discussing the termination of pregnancy with their patients. Chief Justice Rehnquist wrote the majority opinion and justified this restrain on speech on the grounds that there were alternative methods of receiving the information (therefore not a prohibition of speech) and that women were still free to seek abortions.
- As an extension of the Rust decision, the government has sought to impose limitations for the National Endowment for the Arts because of the political content of some artists. The government has also cited Rust to deny Aid's education to schools receiving government funding.
- Stanford University brought suit against the NIH for their forbidding researchers who received partial NIH funds from publishing or discussing their scientific findings without governmental approval.
Free Speech can be limited according to legitimate Time, place and manner restrictions. Students enjoy considerably less freedom of speech even with these restrictions.
For More Information
- Rust Corrodes: The First Amendment Implications of Rust v. Sullivan
- Rust v. Sullivan 500 U.S. 173
- Time, Place and Manner Outline