Time, place and manner restrictions

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.”112 In the case in which this language appears, the Supreme Court allowed a city ordinance that banned picketing “before or about” any residence to be enforced to prevent picketing outside the residence of a doctor who performed abortions, even though the picketing occurred on a public street. The Court noted that “[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.”113

Thus, 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 in order to prevent intrusion on those in the area.114 Other significant governmental interests, besides protection of captive audiences, may justify content-neutral time, place, and manner restrictions. For example, in order to prevent crime and maintain property values, a city may place zoning restrictions on “adult” theaters and bookstores.115 And, in order to maintain the orderly movements of crowds at a state fair, a state may limit the distribution of literature to assigned locations.116

However, a time, place, and manner restriction will not be upheld in the absence of 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.117 And a time, place, and manner restriction will not be upheld if it fails to “leave open ample alternative channels for communication.” Thus, the Court held unconstitutional an ordinance that prohibited the display of signs from residences, because “[d]isplaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else. . . .”118

When a court issues an injunction that restricts the time, place, or manner of a particular form of expression, because prior restraint occurs, “a somewhat more stringent application of general First Amendment principles” is required than is required in the case of a generally applicable statute or ordinance that restricts the time, place, or manner of speech.119 Instead of asking whether the restrictions are “narrowly tailored to serve a significant governmental interest,” a court must ask “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.”120

Applying this standard, the Supreme Court, in Madsen v. Women’s Health Center, Inc., upheld a state court injunction that had ordered the establishment of a 36-foot buffer zone on a public street outside a particular health clinic that performed abortions. The Court in this case also upheld an injunction against noise during particular hours, but found that a “broad prohibition on all ‘images observable’ burdens speech more than necessary to achieve the purpose of limiting threats to clinic patients or their families.”121 It also struck down a prohibition on all uninvited approaches of persons seeking the services of the clinic, and a prohibition against picketing, within 300 feet of the residences of clinic staff. The Court distinguished the 300-foot restriction from the ordinance it had previously upheld that banned picketing “before or about” any residence.122

In Schenck v. Pro-Choice Network of Western New York, the Court applied Madsen to another injunction that placed restrictions on demonstrating outside an abortion clinic.123 The Court upheld the portion of the injunction that banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities” &mdash; what the Court called “fixed buffer zones.” It struck down a prohibition against demonstrating “within fifteen feet of any person or vehicles seeking access to or leaving such facilities” &mdash; what it called “floating buffer zones.” The Court cited “public safety and order” in upholding the fixed buffer zones, but it found that the floating buffer zones “burden more speech than is necessary to serve the relevant governmental interests” because they make it “quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction.” The Court also upheld a “provision, specifying that once sidewalk counselors who had entered the buffer zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones.”

In Hill v. Colorado, the Court upheld a Colorado statute that makes it unlawful, within 100 feet of the entrance to any health care facility, to “knowingly approach” within eight feet of another person, without that person’s consent, “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.”124 This decision is significant because it upheld a statute that applies to everyone, and not, as in Madsen and Schenck, merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners. . . .”125 The restrictions are content-neutral because they regulate only the places where some speech may occur, and because they apply equally to all demonstrators, regardless of viewpoint. Although the restrictions do not apply to all speech, the “kind of cursory examination” that might be required to distinguish casual conversation from protest, education, or counseling is not “problematic.”126 The law is “narrowly tailored” to achieve the state’s interests. The eight-foot restriction does not significantly impair the ability to convey messages by signs, and ordinarily allows speakers to come within a normal conversational distance of their targets. Because the statute allows the speaker to remain in one place, persons who wish to hand out leaflets may position themselves beside entrances near the path of oncoming pedestrians, and consequently are not deprived of the opportunity to get the attention of persons entering a clinic.