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Video Lesson: Reasonable Time, Place & Manner Restrictions

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First Amendment for College Administrators

Lesson 3: Public Forums and Your Campus

Video 2: Public Forums: Reasonable Time, Place & Manner Restrictions

Video 2: Public Forums: Reasonable Time, Place & Manner Restrictions
Video Transcript

Let’s talk about reasonable restrictions officials can impose on when, where, and how people can engage in protected expression on government property.

As we discussed in the last video, the First Amendment guarantees that traditional public forums on your public college or university campus – like the sidewalks along public roadways – must remain open to the public for free speech. Likewise, if the government designates an otherwise private space, like the atrium of a student union, for free speech, that must remain open as well. In these forums, the government can regulate speech using only reasonable time, place, and manner restrictions.

As you’ll learn in the next lesson module, public colleges and universities are limited in their ability to regulate what people say, as the First Amendment is skeptical of content-based restrictions, and flat-out prohibits viewpoint-based restrictions. Time, place, and manner restrictions, on the other hand, do not police what people say — instead, as the name suggests, they dictate when, where, and how people can speak.

The First Amendment permits the government to impose content-neutral, reasonable time, place, and manner restrictions that serve “significant government interests.” For example: In the daytime, public parks are bastions of free speech. But come nightfall, the government may have a significant interest in shielding nearby homes from loud noises, or keeping people out of parks entirely, for their own safety. These kinds of regulations may incidentally affect speech, but they are applicable to everyone and do not have anything to do with the content of speech.

Back in the ‘80s, the National Park Service granted a permit to set up a tent city on the National Mall to a group who wanted to draw attention to the plight of our nation’s homeless population. The Park Service, however, wouldn’t let the protesters sleep there. The case ended up before the Supreme Court, which assumed for the sake of its ruling that overnight camping was expressive in the context of a demonstration on behalf of the homeless. Nevertheless, the Court upheld the ban on sleeping in the park. The government’s regulation was content neutral, applying to anyone who wanted to sleep—for any reason—on the National Mall.

But just ensuring a regulation is content neutral does not give officials the ability to otherwise restrict speech in any way they choose. A time, place, or manner regulation that burdens protected speech in traditional or designated public forums is only constitutional if it meets three criteria:

  1. First, the regulation must be content neutral;
  2. Second, the regulation must be narrowly tailored to serve a significant government interest. (More on what “narrow tailoring” is in a bit); and
  3. Third, the regulation must leave open ample alternative channels for communicating the speaker’s message.

In the case about camping on the National Mall, the Court held the ban on overnight camping was narrowly tailored to serve the significant government interest of ensuring the park was readily accessible to others. And although the government would not allow the protesters to sleep in the park, it allowed them to communicate their message. In the university setting, generally applicable restrictions — including total bans — on encampments and building occupations typically satisfy the criteria of a legitimate time, place, and manner regulation. 

Now let’s break down what each of those criteria mean.

Content Neutrality

The Supreme Court has held that a regulation of speech is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” We’ll explore this in greater depth in the next video, but for now, a 1981 Supreme Court case provides a helpful illustration. In Widmar v. Vincent, the University of Missouri at Kansas City made rooms on campus available for student organizations to hold their meetings. However, the University prohibited student groups from using those rooms for “religious worship or religious teaching.” The Court held this regulation was based on the content of students’ speech – thus, it would only survive a constitutional challenge if the University could show two things: 

First, the regulation must be necessary to serve a compelling state interest. This is something else we’ll talk about in the next video, but a “compelling” interest is a higher bar for the government to meet than the “significant” interest a content-neutral time-place manner restriction may serve. 

Second, it must be narrowly tailored to achieve the government’s stated interest. In the next video, we’ll talk more about what narrow tailoring looks like for content-based regulations. But, as I mentioned earlier, time, place, and manner restrictions must also be narrowly tailored to achieve the government’s interest, so let’s start with how that works in this context.

Narrow Tailoring

So what does it mean for a time, place, and manner regulation to be narrowly tailored? A time, place and manner regulation is narrowly tailored when it “does not burden substantially more speech than is necessary to further the government's legitimate interest.” This area of law is not necessarily the easiest to navigate, but making your lives easier, the Supreme Court has held that, for time, place, and manner regulations: “So long as the means chosen are not substantially broader than necessary to achieve the government's interest, [a] regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.” That, of course, leaves the question: when does a regulation burden speech “substantially broader than necessary?”

Here are a couple of illustrations: In 2001, the University of Texas had a policy requiring anyone handing out leaflets on campus to identify the author of the literature on the leaflets. FIREprotested that the policy violated their First Amendment right to speak anonymously. The court sided with the students. Even acknowledging that the university may have had a compelling interest in preventing outside groups from leafleting in places reserved for students, the court held that a policy requiring students to identify themselves to everyone was far broader than necessary to achieve that goal. FIREcould have, the court said, been required to identify themselves only to University officials. While still a burden on the students’ rights, the court held such a policy would have been substantially less-so. 

Another once-popular, but since-deemed unconstitutional campus policy was the creation of the “Free Speech Zone.” In 2017, for example, Pierce College in Los Angeles prohibited a student from handing out Spanish-language copies of the Constitution anywhere on campus except a small outdoor space the school had designated the “Free Speech Area.” The college claimed the goal of the “free speech area” was to avoid disruption, ensure the safety of the public, and maintain attractive campus grounds. The student sued, and, addressing the narrow-tailoring requirement, the court held that limiting free speech to 616-square feet of a campus spanning hundreds of acres “does not achieve Defendants’ [] goals without unnecessarily impeding students’ First Amendment rights.”

Alternative Channels

In that same case, the court addressed the third requirement for constitutional time, place, and manner restrictions: they must leave open ample alternative channels for communication. The court held that by restricting student speech to the “Free Speech Area,” Pierce College had closed all other channels of communication on campus grounds. The college argued that campus billboards provided a sufficient alternative, but the court did not agree, holding that “[p]lacing a pamphlet on a billboard is a different medium of expression, and does not sufficiently permit students alternative channels of expression.” If the alternative channel provided hampers a speaker’s ability to express their views, it does not satisfy this requirement.

In the areas of your campus where free speech is permitted either by tradition or policy, administrators may only impose reasonable time, place, or manner regulations on speech. In other places, your school may place limits on the content of speech – and in the next video, we’ll talk about how it can do that without violating the Constitution.

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