Time, Place, & Manner Restrictions (Forum Analysis)

Students often ask which topics within a given subject are the most important topics to learn when preparing for the MBE. With some subjects this is a tougher question to answer. With Constitutional Law, however, I'm confident in saying that you'll want to know the First Amendment well.

An important distinction in this area is content vs. conduct. It is presumptively unconstitutional to place burdens on speech because of its content. (Though for sure there are exceptions to this general rule that you'll need to know for the bar exam.) When conduct rather than content is at issue, speech can be regulated by content-neutral time, place, and manner restrictions. And those time, place, and manner restrictions are the focus of this post. 

The government has the power to regulate conduct associated with speech. In determining the extent of that power, it must first be determined whether the forum involved at which the purported speech is to take place is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Public property that has historically been open to speech-related activity is a public forum. Some public property has not historically been open to speech-related activity and yet the government has at times opened it for such activity on either a permanent or a limited basis. These forums are known as designated public forums. Whether a public forum or a designated public forum, the government may regulate speech in such forums with reasonable time, place, and manner restrictions. There are elements to determine whether these restrictions are reasonable. They must be content-neutral (otherwise we'd be dealing with a content-based restriction), narrowly tailored to serve an important government interest, and they must leave open alternate channels of communication. It's important to note that these requirements are necessary but might not be sufficient. In other words, you might find a regulation that satisfies these elements but is still deemed overbroad or vague or etc. 

Speech is easier to regulate in limited public forums and in nonpublic forums. Limited public forums are forums that have not historically been linked with speech-related activity but have been opened for a specific speech activity. As an example, think of a school auditorium that is open for a specific debate. Nonpublic forums are similar to limited public forums in that they have not historically been open for speech-related activity but unlike with the limited public forums, these nonpublic forums are never held open for speech-related activity. 

The government can regulate speech in limited public forums and in nonpublic forums provided that the regulations are viewpoint neutral (even if they are not content neutral) and if they are reasonably related to a legitimate government purpose. 

This all gets confusing quickly, but it's important to know it well. One takeaway for sure is that it's easier for the government to regulate speech in nonpublic forums and in limited public forums than it is for the government to regulate speech in designated public forums and in public forums. Once you understand that fundamental point, you can start digging deeper into the specifics of it all.