Forums and Time, Place, Manner Restrictions

• Author: Ruthann Robson
• Pages: 453-567

Robson The First Amendment

453

Chapter&Seven:&FORUMS&AND&TIME,&

PLACE,&MANNER&RESTRICTIONS&&

This chapter considers!the doctrines of “public forums” (as opposed to

private property) and “time place or manner” (TPM) (as opposed to

content). These doctrines - - - which often intersect - - - have developed

to govern situations in which the government is regulating speech in a

variety of contexts including protests, leafleting, state-sponsored groups,

and the particularly vexing problem of signs. The possibility of

government speaking rather than regulating operates as an “escape

clause” to these doctrines.

Chapter Outline

I.!Historical&Perspectives&on&Public&Assembly&and&Public&Forums&!

Note:!The!Assembly!Clause!!

Davis!v.!Commonwealth!of!Massachusetts!!

Hague!v.!Committee!for!Industrial!Organization![CIO]!!

Notes!!

II.!Public&and&Other&Forums&!

Southeastern!Promotions,!Ltd.!v.!Conrad!!

Perry!Education!Assn.!v.!Perry!Local!Educators'!Assn.!!

!Notes!!

Christian!Legal!Society!Chapter!of!the!University!of!California,!Hastings!College!of!the!

Law!v.!Martinez!!

Notes!!

Note:!Trespassing!in!a!Public!Forum?!!

III.!Time,&Place,&or&Manner&!

Ward!v.!Rock!Against!Racism!!

McCullen!v.!Coakley!!

Notes!!

Note:!Funeral!Protests!!

IV.&The&Distinct&Problems&Posed&by&Signage&Regulations& !

City!Council!v.!Taxpayers!for!Vincent!!

Reed!v.!Town!of!Gilbert!!

Notes!!

V.&The&“Escape&Clause”&of&Government&Speech&!

Pleasant!Grove!City!v.!Summum!!

Walker!v.!Texas!Division,!Sons!of!Confederate!Veterans!!

Notes!!

Robson The First Amendment

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I.&Historical&Perspectives&on& Public&Assembly&and&

Public&Forums&&

Note:$The$Assembly$Clause$

Recall that the text of the First Amendment provides “Congress shall

make no law . . . . abridging . . . the right of the people peaceably to

assemble.”

The Assembly Clause has not been given a robust role in First

Amendment doctrine. Perhaps this is unsurprising given the history of

its inclusion in the text. The following is adapted from RUTHANN ROBSON,

DRESSING CONSTITUTIONALLY (2013):

When the members of the First Congress debated including the right to

assemble in what is now the First Amendment, Representative Theodore

Sedgwick of Massachusetts argued that the assembly clause was unnecessary: it

was encompassed by the speech clause; it was self-evident; it would never be

called into question; and it was derogatory to the dignity of the House of

Representatives to descend into such minutiae. In support of all his arguments,

Sedgwick contended the amendment might just as well declare “a man should

have a right to wear his hat if he pleased.”

It proved not to be the best analogy. As Representative John Page noted, just as

“a man has been obliged to pull off his hat when he appeared before the face of

authority,” so too have people “been prevented from assembling together on their

lawful occasions.” This reference had tremendous resonance for the members of

the First Congress who would have understood it as alluding to William Penn’s

famous trial. A decade before Penn would receive the large land grant in Ame rica

that would become the state of Pennsylvania, Penn and his co-defendant William

Mead were prosecuted in England for “tumultuous assembly” and disturbing the

peace. They had preached outside a Quaker meeting house that had recently

been closed by Restoration regulations limiting religious dissent from the

recently re-established C hurch of England. Originally a pamphlet and

purported trial transcript, The Peoples Ancient and Just Liberties Asserted, In the

Tryal of William Penn and William Mead at the Old Bailey, 22 Charles II 1670,

written by themselve s, became an essential American document. It portrayed

Penn and Mead as heroes seeking their rights as Englishmen under the Magna

Carta but stymied by arbitrary officials in the King’s court.

Their hats were central to this portrait. As Quakers, Penn and Mead denied so-

called “hat honor,” the male practice of doffing one’s cap to a superior including

removing one’s hat in court. The refusal of hat honor, intended to challenge

hierarchy, had become a well-known characteristic of the Quakers; a fair

number of Quakers had been beaten, jailed, whipped, or fined because of their

practice by the time of the Penn and Mead trial. Thus, this colloquy was not

surprising:

RECORDER. Do you know where you are?

PENN. Yes.

RECORDER. Do you know it is the King's Court?

PENN. I know it to be a Court, and I suppose it to be the King's Court.

RECORDER. Do you not know there is respect due to the Court?

PENN. Yes.

RECORDER. Why do you not pay it then?

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PENN. I do so.

RECORDER. Why do you not put off your hat then?

PENN. Because I do not believe that to be any respect.

RECORDER. Well, the Court sets forty marks a piece upon your heads as a fine

for your contempt of the Court.

However, shortly before this interchange, Penn and Mead had been waiting,

hatless, for their case to be called. When an official noticed their hats were off,

he ordered an officer to “put on their hats again.” Seemingly, this command

was merely for the purpose of immediately issuing the order to Penn to remove

his hat, an order the court would have known as problematic for the Quaker

William Penn. Immediately after the Recorder’s fine, Penn and Mead both

spoke:

PENN. I desire it might be observed, that we came into the Court with our hats

off (that is, taken off) and if they have been put on since, it w as by order from the

Bench, and therefore not we but the Bench should be fined.

MEAD. I have a question to ask the Recorder. Am I fined also?

RECORDER. Yes.

MEAD. I desire the jury and all people to take notice of this injustice of the

recorder, who spake not to me to pull off my hat, and yet hath he put a fine upon

my head.

The court’s actions regarding the hats - - - provocative, arbitrary, and lacking

the essentials of fairness - - - set the scene for the remaining injustices of the

trial, the eventual jury acquittal, the prosecution of the jurors for that acquittal,

and the imprisonment of Penn and Mead for contempt for failure to remove their

hats.

Thus, Representative Sedgwick’s comparison of the right to wear or not wear a

hat and the right to assembly as equally trivial rights was not likely to be

accepted by those familiar with the Penn and Mead trial. Sedgw ick’s motion to

strike “assembly” from the text of the First Amendment failed by a large margin.

But perhaps Sedgwick was correct. Recent constitutional doctrine tends to

support the argument that assembly is mere surplusage and the right is

encompassed by freedom of speech, a lthough there is an argument that the

Assembly Clause should be more relevant. See John D. Inazu, The Forgotten

Freedom of Assembly, 84 TULANE LAW REVIEW 565 (2010).

Davis$v.$Commonwealth$of$Massachusetts$$

167 U.S. 43 (1897)

WHITE [EDWARD DOUGLAS], J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.

[Revised Ordinances of the City of Boston (1893), Section 66 provided:

Sec. 66. No person shall, in or upon any of the public grounds, make any public

address, discharge any cannon or firearm, expose for sale any goods, wares or

merchandise, erect or maintain any booth, stand, tent or apparatus for the

purposes of public amusement or show, except in accordance with a permit from

the mayor.

The Court held “A city ordinance providing that no person shall make any

public address in any of the public grounds of the city, ‘except in accordance

with a permit from the mayor,’ does not violate the fourteenth amendment to

the constitution of the United States.”]