Time, Place and Manner Restrictions
Sometimes, the government regulates expression, not because of its content, but because of the manner, place and time of its delivery. For example, the government has an interest in keeping sidewalks and roads clear for foot and vehicular traffic, so may require protestors to obtain a permit in advance and adhere to certain rules during the protest. Content-neutral time, place, and manner restrictions specify when, where, or how expression may occur. The restrictions may not be broader than necessary to further the government’s interest; nor be applied in a discriminatory fashion to disadvantage disfavored ideas.
Courts generally evaluate the government’s asserted interest; the means chosen to advance them; the effect on protected speech; and alternative avenues for expression. In time, place, and manner cases the question of motive is essential. If the government has a genuine and substantial interest in regulating the conduct at issue, and does so in a way that infringes speech rights no more than necessary, the action will normally be sustained. If, however, the real purpose is to suppress speech because of its content or message, or if the state’s objectives are not that important or the means it has chosen to achieve them are not well-tailored, the free speech claim will normally prevail.
To recap, time, place, and manner restrictions must:
- Be within the constitutional power of the government;
- further an important or substantial government interest
- be unrelated to the suppression of free expression; and
- be no greater than is essential to the furtherance of that interest.
Berger v. City of Seattle--Michael Berger, a performance artist, sued Seattle for its regulation of performance space around the Seattle Center.
Bery v. City of New York--A group of artists sued NYC over a law that prohibited sales on the street without a license.
Boggs v. Bowron--Artist J.S.G. Boggs challenged the anti-counterfeiting statute as a violation of his first amendment rights, after federal officials seized many of the artist's works (which were "images of money").
Brooklyn Institute of Arts and Sciences v. City of New York--Rudy Giuliani took offense at a work at the Brooklyn Museum of the Holy Virgin Mary which incorporated elephant dung. The City took action by trying to withhold funds and remove the museum from City land.
Burke v. City of Charleston--Burke challenged an order by the city of Charleston to stop work on a mural it deemed too garish for the downtown historic district.
Claudio v. United States--The artist challenged the removal of his work "Sex, Laws, and Coathangers" from the lobby of a Raleigh federal building.
Erzoznik v. City of Jacksonville--Eroznik challenged the city's ordinance which prohibited showing movies containing nudity at drive-in theaters if the screen could be seen from a public space.
Henderson v. City of Murfreesboro--Henderson displayed a painting of a partial nude in the Murfreesboro City Hall, which the city attorney deemed to violate the sexual harassment policy.
Kleinman v. City of San Marcos--San Marcos required Kleinman to remove artwork made from a junked car for violating a junked car law.
Mastrovincenzo v. City of New York--Sellers of clothing with graffiti on it challenged an NYC ordinance which prohibited the sale of clothing without a license.
Reno v. ACLU--A challenge to the Communications Decency Act (CDA), which criminalized the transmission of obscene or indecent messages to minors.
Sefick v. Gardner--Sefick created a satirical sculpture of a federal court judge, and was denied permission to display it in the lobby of a federal courthouse. He challenged that decision.
Serra v. U.S. General Services Administration--Serra was commissioned to create a site-specific sculpture for the plaza next to a federal office complex. The government decided to move the work, and Serra asserted his VARA rights.
Tacynec v. City of Philadelphia--Tacynec challenged the refusal of his band to march in Philadelphia's New Year's Parade, claiming that the reason for denying the band was merely pretension.
White v. City of Sparks--The city of Sparks required that artists selling works with "obvious religious, political, philosophical, or ideological" messages obtain vending permits. White challenged this policy.
Yurkew v. Sinclair--A tattoo artist sought to force the Minnesota State Fair to rent him a booth, claiming that tattoos are speech deserving of First Amendment protection.