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Regulation of Speech on Public Property: Foundational Cases Analysis

Explore key court cases such as Hague v. CIO and Schneider to understand the regulations on speech in public spaces. Learn about the significant impact of content-based and content-neutral regulations. Analyze the government's interests and the importance of free speech in public forums.

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Regulation of Speech on Public Property: Foundational Cases Analysis

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  1. Chapter 3 Wrap-Up What is a Content-Based Regulation of Speech • Renton v. Playtime Theatres, Inc. – “secondary effects” justification makes Court find a law that regulates the content of speech to be content-neutral. • Significant break from precedent and methodology; SCT has seemed unwilling toopenlyapply this approach beyond sexually explicit speech but litigants continue to raise it. • Note loose tailoring and evidentiary requirements applied by SCT: • How do they compare to SCT’s approach in Brown? Is this because content-neutral standard is applied or because sexually explicit speech is involved?

  2. Foundational Cases – speaker access to public property • Hague v. CIO (1939) - City ordinances barred distribution of leaflets, etc. on public streets & gathering without a permit • Streets & parks “immemorially … held in trust for the … public and … have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” • The “privilege” to use streets/parks for communication “may be regulated in the interest of all.” Can be “subordinated” to comfort/convenience of others and to peace/good order. But officials can’t “in the guise of regulation” abridge speech. • Question – To what extent can government officials regulate speech on public property in the name of the public good? Why is speaker access to public property so important? Why did the officials in Hague fail whatever test was applied?

  3. Chapter 4 - Content-neutral RegulationsFoundational Cases • Schneider – Law banned distribution of handbills in public (aesthetics/safety) • Martin – Law banned door-to-door distribution of leaflets (privacy) • Kovacs – Law banned loud & noisy sound trucks on city streets (privacy) • All laws were content-neutral. SCT determined constitutionality by using a balancing test: • Court must (1) examine the effects of the legislation, and (2) weigh the circumstances and appraise the substantiality of the reasons supporting the regulation in order to determine whether it is constitutional. • Important themes: • SCT is suspicious of certain modes of speech especially important to speakers (cheap & easy forms of communication) • SCT especially disfavors total medium bans • The government interests in the cases are generally legit • BUT they may not justify certain kinds of regulations

  4. The modern rules re access to public property & regulation of speech on public property We will focus first on the “traditional public forum” • Public streets, parks and sidewalks are “traditional public forums” • As in Hague, they cannot be closed to expressive activity. Officials can regulate speech consistent with the following principles: • Content-based restrictionssubject to strict scrutiny (law must be necessary to meet a compelling state interest) • Grayned (p. 142) • Content-neutral restrictionssubject to intermediate scrutiny (law must be narrowly drawn to meet important state interest and leave open ample alternatives of communication) • Ward v. Rock Against Racism (p. 149 n.1)

  5. Clark v. CCNV National Park Service Regulations: • Camping is allowed in national parks only in designated park sites. 36 CFR § 50.27(a). Lafayette Park has no such campgrounds. • NPS may also grant permits for airing of views or grievances, including the use of temporary structures but such structures may be used only for demonstration purposes and not for camping. NPS granted permit allowing CCNV to conduct round-the-clock demonstration in Lafayette Park (including the erection of two symbolic tent cities) but would not grant them the ability to sleep in the tent cities as a symbolic act of expression. • In other words NPS followed its regulations in granting permits to CCNV.

  6. Clark v. CCNV • What is the government’s asserted interest? Is that interest important? • Is the NPS’s enforcement of its regulations narrowly drawn to meet that interest in these circumstances? • Are there less restrictive alternatives? • Why doesn’t the Court seriously consider other alternatives? Are they better than the government’s permit? • Are there alternative avenues of communicating CCNV’s message regarding the plight of the homeless? Are they as effective?

  7. Taxpayers for Vincent • What is the city’s asserted interest? • Is the ban on signs on public property narrowly drawn to meet that interest? • Are there less restrictive alternatives (compare Schneider)? • What is the import of the Court’s statement that “visual blight” is the substantive evil? • Does the law advance the state’s interest? • Does the ordinance leave open ample alternatives of communication?

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