A few days ago, I discussed the history of efforts by governments to regulate demonstrations and protests. In Part One, I discussed the roots of the doctrines — in decisions by the United States Supreme Court to protect civil rights marchers from the efforts of the likes of Birmingham Police Commissioner Bull Connor to shut them down.
Part Two: Time, Place and Manner Restrictions Fleshed Out:
Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly.
Cox v. Louisiana, 379 U.S. 536, 554 (1965).
Even speech that enjoys the most extensive First Amendment protection may be subject to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Frisby v. Schultz, 487 U.S. 474, 481 (1988).
Anti-abortion activists Sandra Schultz and Robert Braun decided to picket the home of a doctor who performed abortions. The Milwaukee suburb of Brookfield, Wisconsin, where the doctor lived, had an ordinance that banned picketing “before or about” any residence, even on a public street, based on its claimed interest in protecting the tranquillity of the homes of its residents. The Supreme Court agreed, holding that picketing at someone’s home is particularly offensive because the resident is effectively a “captive” audience who doesn’t really have the option of not going home. The Brookfield ordinance was content-neutral, it was narrowly drawn to prohibit only speech at one’s home, and Schultz and Braun had the right to picket the doctor at work, or any place else in town.
The following year, the Court, while acknowledging that music, as a form of expression and communication, is protected under the First Amendment, upheld volume restrictions placed on outdoor music to prevent bothering neighbors. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
Other significant government interests may justify content-neutral time, place, and manner restrictions. For example, to maintain the orderly movements of crowds at a state fair, a state may limit the distribution of literature to assigned locations. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). A protest over housing policy that involved camping out on the Washington Mall in violation of other regulations could be prohibited because the federal government has a valid interest in enforcing its regulations on the use of the Mall. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
However, a time, place, and manner restriction will not be upheld if there is not sufficient justification or if it is not narrowly tailored. Thus, the Court held unconstitutional a total restriction on displaying flags or banners on public sidewalks surrounding the Supreme Court. United States v. Grace, 461 U.S. 171 (1983). (I’m going to leave out the complicated, and conceptually distinct, cases dealing with adult stores, porn shops and zoning laws, because they just distract from the present discussion.)
A time, place, and manner restriction will not be upheld if it fails to “leave open ample alternative channels for communication.” In 1990, Margaret Gilleo of Ladue, Missouri, wanted to express her opposition to the about-to-start Persian Gulf War, and she put up a sign in her front yard. It disappeared. She got another sign; it disappeared. When she went to the police department to complain, she was told that Ladue had an ordinance prohibiting yard signs except for certain categories of speech (for sale signs were OK, for example). She challenged this restriction, and the Supreme Court struck down the ordinance that prohibited yard signs, because “[d]isplaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else…,” City of Ladue v. Gilleo, 512 U.S. 43 (1994), so saying that Ms. Gilleo could just put up her sign somewhere else was not a sufficient substitute.
The anti-abortion protesters of Operation Rescue had determined that they were going to shut down an abortion clinic in Melbourne, Florida. The abortion provider went to the local court and got a detailed injunction that restricted Operation Rescue’s efforts to disrupt the clinic. Operation Rescue sued, claiming that the injunction violated their First Amendment rights by restricting their ability to “counsel” women coming to the clinic for an abortion.
First, the Supreme Court held that the government has a strong interest in protecting a woman’s right to seek lawful medical or counseling services in connection with her pregnancy, in ensuring public safety and public order, in promoting the free flow of traffic on its streets and sidewalks, and in protecting residential privacy. The combination of these interests was sufficient to justify an injunction tailored to protect them.
The injunction had created a 36-foot buffer zone around the clinic entrances and driveway, where Operation Rescue protesters could not block access to the clinic; the Court upheld that restriction. But the injunction also created a 36-foot buffer zone around the clinic, including on adjoining private property; the Court struck down the separate buffer zone, finding that there was no evidence that extending the buffer onto the adjoining private property was needed, and finding that that provision burdens speech more than necessary to protect access to the clinic.
One other problem with Operation Rescue was the noise; the Florida court’s injunction had enjoined the protesters, “During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic.” The Supreme Court largely upheld that restriction, noting that “the First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests.” The one exception was the prohibition on “images observable… inside the Clinic”; the Court struck down that restriction, because the patients and doctors could always simply draw the blinds to escape the unwelcome images.
Finally, the Court struck down a 300-foot “no approach zone” because the evidence at the hearing had not established that it was necessary to sustain the government’s legitimate interests; the Court found that a limitation on the time or the duration of the picketing, or the number of pickets, or a smaller no-approach zone, could have protected the legitimate governmental interests while discouraging less speech.
In Schenck v. Pro-Choice Network of Western New York, 519 U.S. 397 (1997), Hill v. Colorado, 530 U.S. 703 (2000), and McCullen v. Coakley, 573 U.S. ___ (2014), the Court continued to grapple with details of different ordinances and injunctions trying to protect abortion clinics and their patients; the Court examined each new ordinance and injunction to see if the restrictions were in fact narrowly tailored so as to restrict the least speech possible while still upholding the governmental interests identified. This careful, provision-by-provision review is required by the First Amendment.
In Part Three, tomorrow, we’ll take a look at a few of the cases that have decided what time-place-manner restrictions are permissible.
