Art Law Library: 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.

Associated Cases:

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superceded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome. Please send toncac@ncac.org