Time, Place, Manner

A.       Davis v Mass. 1897 - A preacher was convicted for preaching in Boston Common without permit from the mayor.  SCOTUS upholds Mass. Court since the issue is not content but place and manner and the state has absolute discretion over use of land it has title to just like private citizens.

B.       Hague v CIO 1939 - Boston Commons Case overturned
 

1.        Mayor of Jersey City, Frank "I am the Law" Hague, used license requirement to block use of city streets and parks by labor and others

2.        a plurality of the SCOTUS indicated that parks, streets, etc. must be open for assembly and communication.  Governments can regulate but not prohibit such use.

3.        Strengthened in Schnedier v State 1939 (concerning distribution of handbills on public streets)
 

C.      Cox v New Hampshire 1941  SCOTUS upheld requirements for parade permits and reasonable fees for "public convenience."
 

D.      Jamison v Texas 1943 absolute ban on handbills overturned.  THE precedent on open-forum.

E.       In sum, regulation of public places must be in a non-discriminatory manner (content neutral), used only for public convenience and good order.    At some locations like military bases, courts, schools, expression may be limited because of incompatibility with the property's normal use (Cox v La. II, 1965 and Grayned v Rockford, 1972). 

F.    In PEA v PLEA 1983, (permitted one union exclusive access to school mailboxes another union wanted to use) the SCOTUS created a three part analysis on access to public property
 

           1.  Quintessential public forums e.g. streets, parks that have long been understood to be available for expression - open access rules apply

            2.  Public property the state has opened for expressive activities (e.g. auditoriums - open access rules apply

             3.  Public property not traditionally or designated for expressive use - open access rules DO NOT apply.

What spaces now DO receive 1st amendment protection (various cases)?

• Spaces near embassies may be used for expression

• Open spaces near the legislature can be used (Edwards v South Carolina, 1963).

• "Company towns" must allow free expression in public areas

• anonymous campaign literature is permitted

• regulation on petitioning must be limited

• loitering by gang members cannot be prohibited (too much discretion by police

What areas DO NOT now receive first amendment protection (various cases)?

• Picketing residences can be prohibited

• Restrictions on demonstrations that block entrances to government facilities are permitted

• Making noise around schools can be prohibited

• zones near polling places

• airport passenger areas

• Limited buffer zones around abortion clinics and patrons and staff are legal

• Governments cannot force private parties to open their parades to all

• Governments can limit expression on or near private property for commercial purposes by narrowly drawn ordinances.

• Prohibiting solicitation of homes is not acceptable

• prohibiting signs on private property is not acceptable

• There is no right to use shopping malls for expression (but states can create such a right)

II.           Speech Plus (Pure speech is verbal expression only.  Speech conjoined with conduct, e.g. marching, is "speech plus).   Speech plus may receive less protection.
 

A.       SCOTUS has referred to Cox v La 1969 Goldberg opinion. p. 280 as a basis for this concept

B.       Flag salutes.  Stromberg v Cal. 1931 allowed salute of Russian flag.  West Va. State Board of Ed. v Barnett 1943 prohibited compulsory salute of US flag.

C.      Draft Card burning can be punished.  US v O'Brien 1968 p. 281.  The card serves significant government interests.

D.      Tinker v Des Moines School Dist. 1969.  Arm bands as war protest were permitted as they not disruptive of school activities.  (p. 281)

E.       Flag desecration can't be prohibited Street v NY 1969.  THE precedent is Texas v Johnson 1989. see p. 281-5.  also US v Eichman et. al. 1990 on congressional flag burning law.

F.       Student dress codes have not been ruled on by SCOTUS and lower courts vary on rulings; thus, it depends on where you live

G.      Labor picketing is a special form of expression which can be supervised by government but is protected. There is no right to picket for an illegal cause.

H.       Loudspeakers can be limited if there is no discretion as to who gets use.

I.           Economic boycotts can be OK as political protest

J.  States cannot limit what candidates for office can say (e.g. judge candidates are permitted to announce their intended stands on pending issues.)  2002 MN case

SEE Tedford pp. 287-291 for a summary of additional issues under Speech plus, including:

1. soliciting civil rights clients

2. prohibiting political ads on city transit services

3. economic boycotts

4. campaign free zones need polling places

5. anonymous campaign literature

6. parade sponsorship and participation limits

7. petitioning restrictions

8. loitering by gang members

9. trespassing in public housing