| US Supreme Court: Time, Place, and Manner Rule |
A doctrine holding that government may protect society by controlling the harmful incidental effects of speech so long as such regulation meets certain requirements: first, it must be neutral concerning the content of expression, and, second, it may not even incidentally burden the flow of ideas to a substantial extent. The most important time, place, and manner regulations include licensing schemes controlling the entry and use of public forums; regulations designed to ameliorate the undesirable side‐effects of expression, such as noise, litter, obstruction of traffic, and invasions of privacy; rules governing the conditions under which groups may solicit funds in order to protect the public from fraud or misrepresentation; and zoning laws that limit access to certain expressive materials.
The doctrine assumes that distinctions can be made between the substantive message of speech and its medium and between outright censorship and the regulation of speech's incidental manifestations. However, the form and the substance of a message are not always readily separable. Furthermore, governments may deploy ostensibly neutral time, place, and manner regulations as a pretext to inhibit unpopular expression, as in the zoning of pornographic establishments (see Obscenity and Pornography).
The first question the Supreme Court asks in addressing a time, place, and manner dispute is whether the challenged regulation actually is neutral. If it is not, the Court will apply the test of strict scrutiny and the measure will survive only if it is narrowly tailored (“necessary”) to protect a “compelling” state interest. Accordingly, the Court has consistently struck down laws that prohibit demonstrations in neighborhoods or by schools, but provide exceptions for particular groups, such as labor demonstrators (Police Department of Chicago v. Mosley, 1972). But the Court did uphold an ordinance that prohibited all demonstrations targeted at private residences; the ordinance was viewpoint‐neutral and specifically tailored to protect the interest in residential privacy (Frisby v. Schultz, 1988). The Court has also consistently invalidated licensing and antinoise regulations that are vague or bestow too much discretion on administrative officials, for such laws often have been applied in a discriminatory fashion (Lakewood v. Plain Dealer Publishing Co., 1988).
If a regulation is truly viewpoint‐neutral the Court must then balance several additional factors. When the incidental impact on speech is not deemed substantial, the regulation will usually be upheld. Laws that reasonably control noise levels are examples (Kovacs v. Cooper, 1949). But when the incidental impact on expression is substantial, the regulation must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication” (United States v. Grace, 1983, p. 177). This approach is applied with special rigor in instances of speech in the “public forum,” where First Amendment interests are high, especially for groups that lack access to other forums of communication. Laws that prohibit methods of communications employed by less‐powerful groups (leafleting, anonymous pamphleteering, and soliciting) have foundered on this basis (e.g., Schneider v. Irvington, 1939). Antifraud regulations that broadly prohibit solicitation by groups that spend less than a specified percentage of their receipts on charitable purposes have also fallen because they impact too harshly on speech (Village of Schaumburg v. Citizens for a Better Environment, 1980).
The case in which the largely Jewish village of Skokie, Illinois, attempted to prevent a Nazi demonstration in 1977 by erecting a complex licensing scheme is a famous example of time, place, and manner doctrine in operation. In ruling in favor of the Nazis' right to demonstrate in Skokie, the Illinois and lower federal courts had to address most major time, place, and manner issues, including licensing, crowd control, the nature of the public forum, and viewpoint discrimination (Smith v. Collin, 1978; Village of Skokie v. National Socialist Party of America, 1978).
In recent years the Supreme Court has given governments more leeway to regulate the “incidental” effects of expression. First, the Court has narrowed its interpretation of what constitutes a public forum, reducing the types of public property subject to the most rigorous First Amendment standards (Perry Educational Association v. Perry Local Educators' Association, 1983). Second, the Court has been more willing to find significance in the social interests served by restrictive regulations, to minimize their harmful impact on speech interests, and to discern ample alternative channels of communication for affected groups. For example, the Court has allowed extensive zoning of pornographic establishments for these reasons (City of Renton v. Playtime Theatres, Inc., 1986). And it upheld Los Angeles's prohibition on placing campaign signs on street lightposts because the posts were not considered public forums and because the measure was deemed to serve a significant social interest in environmental quality (City Council of Los Angeles v. Taxpayers for Vincent, 1984).
Thus, while the Supreme Court has maintained strong suspicion of regulations that overtly discriminate among viewpoints or otherwise facilitate discrimination through suspect licensing schemes, it has increasingly tolerated regulations that affect expression only incidentally.
Bibliography
- Donald Alexander Downs, Nazis in Skokie: Freedom, Community, and the First Amendment (1985)
— Donald A. Downs
