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The following selection is excerpted from ����ֱ��’s Guide to Free Speech on Campus.

Many (if not most) of the usual attempts by government (including public university) officials to limit freedoms of speech and expression are unconstitutional. This is not true, however, of all such attempts. Among the most common limits on free speech and expression — and the most relevant to students in the university setting — are restrictions on the time, place, and manner of expression. 

It is important both to understand when speech legitimately may be restricted and to know what the boundaries are of those exceptions to the rule of freedom. Campus officials who are hostile to your speech can be expected to push their power not only to the limits, but also beyond.

When, where, and how? Time, place, and manner restrictions

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Perhaps the most common legitimate governmental limit on speech is the reasonable “time, place, and manner” restriction. Loosely speaking, these restrictions define when, where, and how you may present your message. For example, while it may be permissible to shout “Stop the war!” or “Support our troops!” at noon in the public square in front of the administration building, the campus administration has the right to prevent the same speech from being delivered at the same decibel level in the hall of a dormitory at 3:00 in the morning.

When put this way, time, place, and manner restrictions certainly seem like a matter of common sense. However, here, as with so many other legal doctrines about speech, the devil is in the details — and unfortunately, time, place, and manner restrictions are often abused on campus.

Any good analysis of time, place, and manner begins with the place. Place will be the most critical aspect of the legal doctrine that courts will apply. As a general rule, speech, as the courts define things, occurs in one of three kinds of places: traditional and designated public forums, limited public forums, or nonpublic forums.

Traditional and designated public forums

Courts define the public forum as those government or public properties that “by long tradition or by government fiat have been devoted to assembly and debate.” Perry Education Association v. Perry Local Educators’ Association (1983). Since the Supreme Court’s decision in Hague v. Committee for Industrial Organization (1939), it has been settled in the law that public parks — since they are held in trust for the public and have traditionally been used for assembly, communication, and public discussion — are “traditional” public forums. Other examples include public streets and sidewalks. On the modern public campus, many of the open spaces between buildings and many public squares scattered throughout the campus should be considered public forums. 

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The government may also designate other public property as a public forum by opening the property to the public for expressive activity. The government is not required to create these “designated public forums,” but once it has designated a place as a public forum, that space must be treated as such for all comers. The government may not suddenly restrict such arenas merely because an unpopular speaker is about to take the platform.

Once a place has been deemed to be a public forum, the government’s power to limit speech there is extremely narrow. Viewpoint discrimination (discussed previously) is never permissible. Content discrimination (discrimination based on the subject matter of the speech, whatever the point of view taken on it) is acceptable only if the government can show the following:

1. There is a compelling state interest for the regulation’s content-based discrimination.
2. The regulation making the exclusion is narrowly drawn to achieve that state interest.
3. The regulation leaves open ample alternative channels of communication.

These three conditions are met, for example, by narrow rules prohibiting electioneering near polling booths. Electioneering is typically permitted in the traditional public forum of the public street, but on Election Day there is a compelling state interest in prohibiting such speech (whichever party or candidate one favors or opposes) very near polling places. Because ample alternative channels for communication are available, this kind of modest regulation is permitted.

Limited public forums

What the courts call “limited public forums” are a type of nonpublic forum that has been intentionally opened to expressive activity by select groups or about particular topics. 

The government is not required to create these “limited public forums,” but once it has opened a place as a limited public forum, the government may not impose restrictions beyond those necessitated by the forum’s purpose. The paradigmatic example of a limited public forum is public university meeting facilities opened for the use of student groups on campus. In such a limited public forum, the university may restrict off-campus community groups from using the facilities because the purpose of the forum is to provide meeting space for student groups, but it could not limit the forum to only some student groups. 

The government has slightly more control over speech in the limited public forum than in a public forum. For example, the government may draw distinctions based on the specific purpose of the property and the relationship of speakers to those purposes. Just as was the case with public forums, however, viewpoint discrimination is absolutely prohibited. Further, if the forum is considered “generally open” (to the campus community, for example), then even content discrimination can be justified only by the “compelling state interest” standard discussed above. 

This principle was illustrated in the case of Widmar v. Vincent (1981). In Widmar, the Supreme Court considered whether there was a compelling state interest in preventing religious organizations from using facilities that were “generally open to student groups.” The Court held that although the university did have an interest in complying with its constitutional obligations under the Establishment Clause (the part of the First Amendment that forbids the government from establishing a religion), this interest was not sufficiently compelling to justify discrimination against speech with a religious content.

The following chart illustrates the legality of content- and viewpoint-based restrictions in the traditional public forum and in the limited public forum. You will note that viewpoint discrimination is always prohibited:

Nonpublic forums

The third speech location is the nonpublic forum. A place does not become a public forum simply because it is owned by the government. The government may establish events or designate places where speech is limited to particular, narrow subjects, or where only a select group of citizens is permitted to speak. 

In Perry Education Association v. Perry Local Educators’ Association (1983), the classic case on this point, the Supreme Court ruled that it was not prohibited discrimination for a school district to grant the officially recognized teacher’s union access to an interschool mail system while denying that access to a second, rival union. The internal mail system was not open for use by the general public, and, as the Court wrote, “the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Courts must recognize this authority even when they believe that the government made a poor policy choice in designating a nonpublic forum for a particular limited use.

As the Court held in Perry, the standard for deciding whether the government may bar a speaker or topic from a nonpublic forum is whether the restriction is viewpoint neutral and “reasonable in light of the purpose which the forum at issue serves.” This standard gives universities broad authority to create nonpublic forums and to restrict use of them to their intended purpose. For example, in Chapman v. Thomas (1984), the U.S. Court of Appeals for the Fourth Circuit upheld, as designed to promote a legitimate interest, a university policy that allowed only candidates for student government, and not students advocating other political causes, to engage in door-to-door solicitation in the dormitories. 

Courts will intervene, however, when a university wrongly claims that a particular type of speech falls outside the limits of a nonpublic forum. In the Fifth Circuit case of Gay Student Services v. Texas A&M (1984), for example, a university claimed that its refusal to recognize a gay student group was justified by its policy of recognizing political but not fraternal and social groups. The court disagreed, however, ruling that the public service purposes of the group in question fell squarely within the limits the university had set on its nonpublic forums, and that the university was thus obliged to recognize the group.

When is a time, place, and manner regulation unconstitutional?

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Even if the government’s time, place, and manner restrictions are viewpoint and content neutral, they are still not always lawful. Even content-neutral regulations of public forums must be what the courts term appropriately “narrow.” The Supreme Court explained this clearly and well in the case of Ward v. Rock Against Racism (1989). “Rock Against Racism,” an organization “dedicated to the espousal and promotion of anti-racist views,” sponsored concerts at the Naumberg Acoustic Bandshell in New York City. After several years of noise complaints, the city established mandatory procedures for granting concert permits, setting out rules on twelve subjects, including sound amplification. The sound provisions required event sponsors to use “a sound system and sound engineer provided by the city, and no other equipment.”

Whenever an administrator states that a rule is “merely” a time, place, or manner restriction, remind that official that such a condition is never enough: It must be a “reasonable” restriction that achieves a legitimate purpose without going much farther than is necessary.

Rock Against Racism sued to overturn New York City’s policy. The Supreme Court upheld the city’s rules, and its explanation of why it did so sets forth a good guide to the issue of “narrow” laws and regulations. Because the policy applied to any and all sponsors who sought to use sound amplification, there was no credible argument that the city was discriminating on the basis of content or viewpoint. Further, the regulation was considered a “narrowly tailored” means of accomplishing a legitimate government purpose; that is, curbing excessive noise in and around Central Park. Of great importance, the Court also held and explained that while a time, place, and manner restriction indeed must be “narrowly tailored,” this did not mean that such a restriction had to be the only means or even the “least restrictive” means of advancing the government’s interests: 

So long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.”

The practical result of Ward is to give the government some discretion in devising and applying content-neutral regulations of public forums. Nonetheless, public universities still must take care that such regulations are not too broad and preserve ample alternative channels of communication.

This warning is growing increasingly important on the modern campus, where more and more public universities limit free speech to specific “zones” on campus. In some instances, these so-called “free speech zones” represent a tiny fraction of the open, public space on a university campus. Even though speech zone regulations are ostensibly content neutral (everyone must comply, regardless of subject or speaker), it is difficult to argue that the actual dismantling of traditional and designated public forums — and the confinement of free speech that results from this — is a regulation that is “not substantially broader than necessary” to achieve the university’s purpose. Similarly, speech zone regulations that confine free speech to a few limited areas — often in out-of-the-way, low-traffic locations — fail to preserve alternative channels of communication for speakers to reach the same audience. 

The bottom line is that the government is allowed considerable discretion in what kind of time, place, and manner restriction it imposes, as long as the restriction is truly viewpoint neutral. However, the government’s power is not unlimited, and you should never just assume that harsh limitations of demonstrations, pamphleteering, putting up posters, or other speech activities are reasonable. 

Many schools limit speech far more than the Constitution tolerates. The First Amendment, the Court has ruled, permits certain reasonable time, place, and manner restrictions. University administrators too often forget the word “reasonable.” To limit free speech to a tiny part of the campus would be the same as limiting free speech to just two non-consecutive hours per day on campus, and then only on weekdays (as Valdosta State University once did, prior to ����ֱ��’s intervention). These indeed would be “place” and “time” restrictions, but they most surely would not be “reasonable” place and time restrictions. 

A reasonable legal restriction of the exercise of a right does not give officials wild authority to destroy constitutional protections. Whenever an administrator states that a rule is “merely” a time, place, or manner restriction, remind that official that such a condition is never enough: It must be a “reasonable” restriction that achieves a legitimate purpose without going much farther than is necessary.

To learn more about your rights, explore ����ֱ��’s Guide to Free Speech on Campus.