Like just about every other constitutional promise, the First Amendment has never been read as an absolute; it does not create boundless license to say whatever one wants, wherever one wants, and however one wants.
Governments — including the federal government, state governments, and city governments — may impose reasonable restrictions on speech. It’s not advisable that anyone test this proposition by, say, threatening the life of a national leader, mouthing off to a judge in a courtroom, or engaging in a sexually explicit internet chat with a minor.
The outer limits of free speech have come into focus in the aftermath of the alt-right terror attack on Charlottesville. Alt-right neo-Nazis and neo-Confederates are planning to hold rallies like the one they held in Charlottesville across the country. We can hope that they all turn out like this:
But that seems unlikely.
If Trump’s Brownshirts are coming to a municipal park or university auditorium near you, here’s a brief primer on what the government can and cannot do to manage the chaos.
Let’s start with two basics. First, the more political or ideological speech is, the more protected it is. That just makes sense — as Justice John Paul Stevens once said, “Few of us would march our sons and daughter off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.” On the other hand, we do march our sons and daughters off to war to protect the civic, philosophical, and social expressions of others, no matter how offensive we might ourselves find those expressions to be. No matter what we think about the emboldened fascists and racists clucking loudly and proudly in the Age of Trump, their speech is political and ideological, and therefore entitled to rigorous protection against governmental (which is not to say private) meddling.
Related: Employers entitled to their associational choices, too. Read more HERE.
Second, the less popular (or more controversial) speech is, the more protected it is. I don’t need the shield of the First Amendment to walk out onto a public sidewalk, light a candle, and sing kumbaya under a sign that reads, “I love puppies and kittens” — because nobody is going to mess with me. The drafters of the First Amendment were concerned with speech that would rankle rather than soothe, so again, the neo-Nazis and neo-Confederates, whatever we might think of them, may invoke the First Amendment in its most fulsome breadth.
That doesn’t mean that a government, be it a city police department or state-university administration, may not concern itself with the effects of public demonstrations within its jurisdiction. The key to successfully managing such a demonstration (legally speaking) is what courts call content-neutrality. Whatever a government does to move speech around or regulate the time or manner of the speech, it must show to a judge that its interest in doing so has nothing to do with the subject matter of the speech.
If the First Amendment means anything, it must at least mean that the government may not target a speaker based on his or her message. So it would not be okay for a city council to enact a local ordinance providing that people are allowed to use municipal parks to demonstrate about homelessness, healthcare, public education, or other domestic concerns, but not about war. That would be a content-based restriction. (Worse yet would be a policy saying you can’t demonstrate against a war, but you can demonstrate in support of it — that would be viewpoint discrimination, which is even more troublesome in the eyes of the law than content discrimination.)
So The government can’t deny or curtail a permit to demonstrate just because the demonstration is about ethnic segregation, and the government sure as hell can’t target a demonstration because its organizers support ethnic segregation.
So the government may not act to protect the local population from all the emotional tumult that comes along with something as jarring as a Nazi invasion. What the government may do is act to protect the local population from harmful secondary effects of certain speech.
Have you ever noticed that smut shops are rarely seen in family-oriented commercial districts, or within miles of any church or playground or park? That’s not because the pornography peddled in such places is disfavored based on its content, but because courts recognize that smut shops cause urban blight, reduce the value of surrounding properties, and attract miscreants like prostitutes and drug dealers. Although the government has no constitutionally valid interest in targeting non-obscene sexually explicit material, it does have a valid interest in protecting property values and preventing blight and crime. Because of these important and content-neutral interests, local zoning boards are permitted to restrict porn shops or theaters to areas within a jurisdiction typically used for industrial or waste-management purposes.
So too does a government have an interest in preventing the crime, violence, property damage, or economic loss that can result from a controversial demonstration, even f it has no interest in suppressing the controversy itself.
If a government can show that it has no interest in the subject matter of speech, but rather that it has an important interest in managing the secondary effects of the speech, then it may impose restrictions that are carefully tailored to addressing those interests so long as it also ensures that demonstrators or speakers have ample channels of communication available to them — meaning that whatever restrictions are imposed may not foreclose any meaningful chance for those demonstrating or speaking to get their message across.
Now that we’ve had a situation get out of control in Charlottesville when the Nazis came calling, judges will likely give local governments some leeway in moving demonstrations to areas where police can contain any outbursts; imposing reasonable time restrictions to avoid prolonged tensions or all-night mischief-making; and placing reasonable limits on such nuisances as noise and litter.
A government may not, however, so saddle demonstrators or speaker with onerous conditions and restrictions as to muzzle them. A city may not, for example, tell demonstrators who apply for a permit to march on the grounds of a state capitol building that they may have their demonstration, but at an abandoned softball field 17 miles away, at the end of an unpaved roadway that stretches for miles over swamplands and quagmires.
To survive judicial scrutiny, governments trying to deal with alt-right, neo-Nazi, neo-Confederate demonstrations will have to show the following:
- that their decisions are content-neutral;
- that they are acting to serve important interests;
- that the means they choose are no more restrictive than necessary; and
- that ample channels for expression and communication have been provided.
And there you have it: you are now a First-Amendment lawyer, at least as to the issue of reasonable time, place, and manner restrictions.