A Writer's Guide to the First Amendment: The When, Where, and How of Public Speech

You walk into a public park, climb onto your literal soapbox, and start speaking. Then someone calls the cops, and you get arrested. Have the police violated your First Amendment rights?

It depends.

The government can’t regulate what you say, but it can regulate when, where, and how you say it. The regulations must be viewpoint neutral, meaning the outcome should be the same whether you are opposing abortion or defending it. The regulations must also be tailored to serve a significant public interest, meaning that they should not restrict speech any more than is necessary. But as long as these tests are met, the government can regulate the time, place, and manner of your speech.

Let’s flesh out the facts mentioned in the first paragraph. You walk into a small neighborhood park at 5:00 a.m., put your soapbox on the top platform of the children’s jungle gym, and speak into a microphone connected to an amplifier that rattles the windows in every house for a two-block radius.

And let’s assume that the town has the following ordinances:

·         Neighborhood parks are closed between 10:00 p.m. and 7:00 a.m.,

·         Adults are not allowed on the playground equipment, and

·         Amplification devices are prohibited within 100 yards of a residential neighborhood.

Although these restrictions are not aimed at your speech, they effectively prevent you from giving it when, where, and how you want. So are they valid?

Probably. They all serve significant public interests. The park closures keep vagrants from sleeping there and may also protect children from dangerous people. The rule banning adults from the playground equipment does two things: it helps insure that children have uninhibited access (at least while the park is open), and it decreases wear and tear on the equipment. And the noise ordinance prohibits a nuisance that reaches into people’s homes without their consent. Furthermore, none of the ordinances prevent you from expressing yourself. You simply have to move your soapbox to the middle of the town square and deliver your speech during the prime hours of the day.

But you’re a writer. You don’t want to give a speech, you just want to write it and hand it out. Does that make a difference?

It changes the facts slightly, but the tests are the same. You still can’t pass out your leaflets in the park at 5:00 a.m. while standing on the playground equipment. There’s even an amplifier equivalent. You can’t leave a pile of leaflets on the ground or the benches if doing so violates an anti-littering ordinance.

And there are some types of speech that you can’t even utter in the town square. We’ll start there next month.

__________

Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.