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Time, Place and Manner Restrictions on the First Amendment

In previous posts, we have discussed the importance of the First Amendment. We have also discussed that speech is not always just speech — it can also be conduct. Today, we are going to talk about legitimate government restrictions on the First Amendment right to freedom of speech. One such restriction established in case law decided by the Supreme Court of the United States is restrictions on time, place and manner of speech.

What is a “Time, Place & Manner” Restriction?

Time, place and manner restrictions include regulations of when, where and how someone speaks. For example, a school may tell its students that they may not discuss politics during class. A state court may require that no one say anything at all in a court room unless they are an attorney or a witness on the stand. Some government buildings prohibit any sort of protest or speech within the buildings themselves, allowing the government workers to work unimpeded by any sort of disruptions around them. (For example, you can’t march into Fort Knox and demand the right to protest.) These are all examples of time, place and manner restrictions. 

There are a few requirements to sustain a time, place and manner restriction in court. If challenged, the government entity must be able to show that these restrictions are “narrowly tailored” to achieve a “significant governmental interest.” For example, the school district that says that its students may not engage in any political speech at all during the entire school day, whether in or out of classes because it is worried about distractions in the classroom, is probably guilty of an overboard restriction that would not be sustained by a court. The goal of a good education may be a significant government interest, but there are less restrict ways to achieve that goal. The school might be able to require that students not talk while in certain types of classes that have nothing to do with politics, for example, while leaving them free to discuss their views throughout the rest of the day. 

“Content Neutral” Restrictions

restrictions to the first amendment

Another important point is that a restriction must be applied equally across the board and must be “content neutral.” In other words, a school that says that students may not talk about religion during specific classes but allows discussion of any other sort of philosophy or politics is violating the First Amendment right to freedom of speech.

Similarly, if a courtroom was to say that no one can protest out in front of the court, but then allows specific demonstrations for increased government salaries inside, this would be an example of discrimination against speech based on content. In these cases, the supposed time, place and manner restriction is just an illegal attempt by the government to restrict speech that it does not find appealing. 

What Do You Do if Your Rights are Violated?

What do you do if your rights are violated by a time, place, and manner restriction? There are various types of civil rights lawsuits available to you. Figuring out whether a time, place and manner restriction is an appropriate restriction of speech is a complicated process and requires careful analysis of the challenged regulation, the case law that has been decided on these topics, and sometimes even what you desire to say. In future blog posts on this topic, we are going to cover other restrictions on the First Amendment that the government may pass.

If you’re dealing with an infringement on your First Amendment rights, call us today to discuss your case.

Oley Valley Students Settle First Amendment Lawsuit

Every American has the right to free speech under the First Amendment. That’s why Cornerstone Law Firm is glad to announce that our clients, three students in the Oley Valley School District, have had their voices heard in their recently settled lawsuit.

We worked with the students to bring a lawsuit against Oley Valley School District for violating their First Amendment rights. The case has now settled for $5,000 for the students plus attorneys’ fees and expungement of the discipline resulting from their school board speech.

Oley Valley School District students (from left to right) Vinny Ferrizzi, Haley Hartline and Jordan Eck practicing their First Amendment rights

What Happened

Jordan Eck, Haley Hartline and Vinny Ferrizzi were disciplined for speaking at a school board meeting last March, where they expressed concerns about the way the drama program was being run. Within 24 hours of speaking to the school board, two of the students were suspended and removed from the school play, and less than two weeks later, the third was removed from school property in front of his classmates. Various excuses for this retaliation were offered throughout the lawsuit, but upon production of surveillance footage demonstrating the pretextual nature of these excuses, the parties finally agreed to settle.

The monetary settlement reimburses the students’ families for the expense of litigation and will be paid by the school district’s insurance carrier. The settlement also includes compensation for Jordan for the defamation of his character by the drama program director in a series of emails to the parents of other students in the drama program, as well as others in the community. All three students will receive compensation from the district’s insurance carrier for the violation of their rights to free speech.

What They Have to Say

The students expressed their relief that the case is over. “This is a victory for our First Amendment rights, and for the rights of other students to speak freely without fear of retribution,” said Eck after the settlement was reached.

“It shouldn’t have taken a federal lawsuit to force the School District to respect our right to speak,” said Hartline.

Ferrizzi agrees: “We wanted an apology, but it’s clear that this will have to do. This is vindication.”

“The First Amendment was written to protect us; but sometimes, we have to protect the First Amendment,” said Cornerstone Law Firm’s Joel Ready, the students’ attorney. “When government officials, however major or minor, seek to punish citizens for their speech, it is imperative that we stand up against that.”

Attorney Ready believes the lawsuit has bigger implications beyond these three students, and beyond Oley Valley:

“This case would have created a chilling effect on other students right to speak up, and I hope the message is loud and clear: as a student, you’re allowed to respectfully express your opinion to those in power, even if your opinion is unpopular.”

How it Started

The case began when Cornerstone Law Firm reached out to the School Board on behalf of the students, demanding that their discipline be expunged. The School Board refused reverse the punishments, necessitating rising costs, and ultimately, this settlement. Attorney Ready says he expects this case will have a positive impact on the School District:

“My clients hope this will cause the Oley Valley School Board to take definite steps to train their employees about protecting students’ rights. The Supreme Court says that students do not shed their constitutional rights at the schoolhouse gates. That is especially true when students speak to school board members—their elected representatives.”

Various messages of both support and opposition have been received on social media by the students, but Eck explains, “From the beginning, we understood that was part of it. We just want every student to be able to speak freely, just like we did.” Ready agrees.

“I’m proud of these three students,” he said. “They’ve shown courage in the community, sometimes in the face of misinformation intentionally spread about them. They’ve shown Oley Valley how important free speech really is.” The Court issued a “Rule 41 Order” last week, and the students and district signed a final agreement today.

Student Statement Posted on Social Media Today

The three students released posts on social media today. The post is as follows:

“We were each disciplined by OVSD last year after we spoke at a school board meeting and expressed concerns about the individual overseeing the drama program. While anyone has a right to agree or disagree with what we said, no one had a right to blast out an email to the community defaming Jordan, claiming he “posted something against another student” such that the “police were called in” to deal with him. No one had a right to suspend Jordan and Haley and remove them from the school show for their speeches that night, and no one had a right to have Vinny escorted off of school property in front of our classmates. These actions were hurtful, and were done to retaliate against us for speaking an unpopular opinion to our elected officials.

As of this week, our disciplinary records related to this incident will be expunged, Jordan will be retroactively restored to his role as drama club President, and we will receive $100,000, which will be paid by the school district’s insurance carrier—not by taxpayers. Most of this is merely to reimburse us the cost of bringing a federal suit. A nominal amount will pay for Jordan’s defamation claim, and all three of us will receive a small amount for the violation of our right to free speech.

The expense and stress of this lawsuit should have been unnecessary. Last March, Joel Ready, our attorney at Cornerstone Law Firm, sent a letter to the School District demanding that this matter be resolved by expunging discipline related to this incident, and that a small amount be paid to cover the attorneys’ fees we had incurred up till then. The School District preferred to fight about this instead, and finally was forced to settle on the eve of trial.

It’s really important to the three of us that all of our classmates hear this message loud and clear: no one can silence you just because you are a student. You’re a citizen of the United States, and when you speak as we did—calmly, respectfully, in the forum set up for public comment—the government and its officials do not have the right to retaliate against you.

We hope this case will give other students courage to speak up for themselves, and to speak against what they see as wrong. We’re grateful for those of you who have supported us along the way, and to those of you who haven’t, we hope you’ll keep all of this in consideration with an open mind and continue to dialogue with us. That’s what the First Amendment is all about.”

Contact Us

If you’re dealing with an infringement on your First Amendment rights, call us today to discuss your case.

National Park “First Amendment” Signs Should Come Down

Last week, after observing signs in National Parks purporting to limit the exercise of the First Amendment, Attorney Joel Ready sent the following letter to Ryan Zinke, Secretary of the Department of Interior, and to Michael Reynolds, the director of the National Park Service.

Dear Sec. Zinke:

At the end of August, I honeymooned with my wife in the Smoky Mountains National Park. The Smokies are a sort of home away from home for my family. I spent many summer weeks there growing up, and of course, my wife and I now have wonderful memories of the park as well. The park has earned its place as the most visited park in America, with its lush beauty and unique wildlife. We had the opportunity to quietly observe two black bears while we were there, as well as to visit Clingman’s Dome and Cades Cove, among other sites.

However, I write to let you know of a concern I had while visiting the Smokies. During our trip, we stopped at one of the visitors’ centers,[1] where we were confronted by [the sign pictured above].

As you are probably aware, Mr. Secretary, the First Amendment cannot be confined to a small portion of government-owned ground. The First Amendment is designed to prevent the “abridgment” of speech, no matter where it occurs. Nowhere is this protection stronger than on government property. While the government is free to engage in reasonable “time, place and manner restrictions,” such restrictions must be content-neutral, narrowly-tailored to advance a significant government interest, and leave open ample alternative channels of communication.[2] Parks are “quintessential public forums [where] the government may not prohibit all communicative activity.”[3] I believe that no compelling government interest is at play here, and that these zones in front of visitors’ centers[4] (making up only a fraction of a percent of the total park) do not constitute a “narrowly-tailored” solution in any event.

The Smoky Mountains National Park, like our nation, was born in the cauldron of political dissent and protest. When the federal government used the powers of eminent domain to seize the land in the 1920s and ‘30s, a number of evicted local families protested in different ways, including protesting FDR’s speech in the park (which was, of course, full of political statements, as any Presidential speech would be).[5] Political speech in our national parks is a proud tradition, and the federal government has no place in attempting to curb speech by creating “zones” where it is acceptable or unacceptable to speak.

In our travels through the park, we encountered a number of violations of this sign, including Jehovah’s Witnesses with displays who were handing out tracts about their faith, the National Park Service’s signs throughout the park arguing for better environmental protection legislation and lauding past EPA efforts, and a small child protesting to her mother that she was done with her sack lunch (most of her sandwich was still uneaten). From the loftiest sentiments (those about religion) to the most trivial (private disputes between mother and child), all of these are speech protected by the First Amendment from government abridgment, and all of them are presumably prohibited by the sign at the visitors’ centers.[6]

I have no reason to believe any enforcement action has been taken against groups or individuals based on these signs. Nor do I harbor any suspicion that you personally authorized these signs. Rather, like so many things, our liberties are slowly eroded by the well-meant actions of individuals attempting to prevent pesky protestors from marring natural beauty or causing disruption. But protests and political speech do not mar natural beauty as quickly as oppression. I hope you will not think I overstate my case with the word “oppression”—rather, the attempts of government to snip at the fringes of free speech are always the first signs of the erosion of natural liberty. The American people are free to speak and advocate for their beliefs on government property, and these signs should come down.

With great respect and appreciation, I write to request that you remove these signs from all National Parks and any other similar government-owned properties where they may be found.

[1]              The visitor’s center we visited was Sugarlands Visitors’ Centers, where we encountered very kind and helpful rangers and other workers.

[2]              The caselaw on this point is voluminous, but one example should suffice: Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37, 45 (1983).

[3]              Id.

[4]              I was unable to ascertain whether these signs are present at all visitors’ centers in the Smokies, or at all parks nationally, or whether this one visitors’ center was an anomaly. I presume that they are present nationally, but my argument is not affected if this visitors’ center is the only example.

[5]              Both silent footage and text of the speech survive. The footage can be viewed on youtube: https://www.youtube.com/watch?v=RnJbJbcr3jw. The text of the speech is also available: “Address at Dedication of Great Smoky Mountains National Park.,” by Franklin D. Roosevelt, September 2, 1940. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=16002.

[6]              Political t-shirts, personal conversations, bumper stickers on cars and license plate messages, and “pillow talk” while camping under the stars are all presumably prohibited by the sign, as well.

Film the Police

Filming the police has become an act of political speech. Police actions caught on camera have played an enormous role in debates over police brutality and practices over the last twenty years, most infamously in the case of Rodney King. In the wake of such landmark events, many cities and police departments have tried to crack down on and prevent the filming of police actions. In Fields v. City of Philadelphia, released yesterday by the Third Circuit Court of Appeals (the Federal Court that governs Pennsylvania, New Jersey and Delaware), the court ruled that the First Amendment protects your right to film the police as they do their job, and that a city may not prohibit such filming or photographing of police actions, because the First Amendment to the United States Constitution protects your right to film and photograph the police.

The Camera as Eyewitness

In a beautifully-written opinion, the court ruled that you have the right to record even run-of-the-mill police encounters, because one never knows when a shot might be important. The First Amendment gives you the right to preserve an eyewitness account of what you’re seeing, even if you’re not sure that you’ll ever use that footage.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

Footage Need not be “Expressive”

 The court rejected the contention that the individuals caught filming the police had to prove that they were creating some sort of expressive art protected by the First Amendment. The very act of filming was the protected conduct.

This aspect of the ruling—that you don’t have to prove the artistic value or expressive nature of your footage or picture for it to be protected by the First Amendment—will have broad application in other contexts. Students who film a teacher’s interaction with them at school, footage of a DMV official rejecting an applicant on dubious grounds and even pictures taken on the street of public events are all constitutionally protected, even if it is unclear at the time how such media may be used. This right extends to the private citizen in equal force as it does to the press.

A few exceptions

The court left open the possibility that there are limits to the time, place and manner in which you can film the police. Recording a police officer’s conversation with a private informant, getting in an officer’s way or otherwise interfering with police activity might be unprotected conduct which could properly lead to an arrest.

But the court left these possible exceptions general, and the most important ruling in this case will be that you have a right to record your public servants as they go about their jobs or interact with you and others. You have a right to film the police.

Pick up Your Phone

So keep your phone out when you run into the police, or when you see others interacting with them. Allowing the public the opportunity to see how police work is done is an important part of making our justice system better, and of advocating for a better society. The First Amendment protects your right to do just that.

 

Police Dashboard Camera Videos Must Be Released

Police Dashboard Camera Videos Must be Released

Police dashboard camera videos are available to the public pursuant to Right to Know requests in Pennsylvania, says the Supreme Court of Pennsylvania. The ruling in Pennsylvania State Police v. Grove, which came down Tuesday, affirms that Motor Vehicle Recordings (MVRs) are subject to disclosure unless specific content is proven to be confidential.

Unfortunately, this is not the law in all states, and even here in Pennsylvania, the state legislature is taking steps to expand police power to protect videos from disclosure. Yet, as we’ve seen in the Philando Castile case and others, footage capturing officers in crucial moments of fatal encounters can sometimes be the only witness against an officer’s word. Such footage can go viral and have a tremendous impact on the public’s perceptions of law enforcement.

Yesterday, Cornerstone Law’s Attorney Ready, who covers the Supreme Court of Pennsylvania for SCOPA Review, was asked to comment on this case for 69 News out of Allentown. You can watch the interview here.

Does the First Amendment Give You the Right to Record Police?

Another case coming from the Federal Court of Appeals for the Third Circuit will have significant implications on how we monitor police. In Fields v. City of Philadelphia, the Federal Court is called upon to decide whether the First Amendment allows the City of Philadelphia to prohibit the recording of police while they perform their jobs.

The simple fact is that while we need police as a society, police are an extension of government power–and where there is power, there will always be corruption. “Power corrupts, and absolute power corrupts absolutely.” Giving our government absolute power to determine what information can be released, or who can record the government’s actions is corruption. Monitoring our government is a right inherent to our republic, and must be preserved.