Also known as:time, place, and manner regulations · time place manner restrictions · TPM regulations · TPM · time-place-manner · content-neutral regulations
Written by attorneys — see sources below.
A content-neutral restriction on when, where, or how protected speech may occur. The government may impose such a regulation if it advances an important interest unrelated to the suppression of speech and does not burden substantially more speech than necessary.
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How its tested
Common Examples
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Cable Must-Carry Mandate
Terra Financial operates a cable system serving several states. A federal rule requires the company to carry local broadcast stations on its basic tier without regard to the content of those stations' programming. Terra Financial sues, claiming the rule displaces its preferred channel lineup. The court applies intermediate scrutiny and upholds the rule because the mandate advances the government's interest in preserving free over-the-air television and does not burden substantially more speech than necessary.
Adult Theater Zoning Ordinance
Tiana Tan owns an adult theater in downtown Erie. The city enacts an ordinance requiring all such theaters to locate at least 1,000 feet from schools and residences. Tiana Tan challenges the rule as an unconstitutional restriction on expressive conduct. The court upholds the ordinance because it targets the secondary effects of the businesses rather than their message and leaves open ample alternative locations for the speech.
In September 1994 the city council of Erie, Pennsylvania, enacted Ordinance 75-1994. The ordinance made it a summary offense to knowingly or intentionally appear in public in a state of nudity. It defined nudity to include the showing of human male or female genitals, pubic area, buttocks, or female breast below the top of the areola as well as any device simulating those areas.
Pap's A. M., a Pennsylvania corporation, operated an establishment known as Kandyland in Erie that featured totally nude erotic dancing performed by women. After the ordinance took effect, the dancers began wearing pasties and G-strings to comply with its requirements.
On October 14, 1994, Pap's filed a complaint in the Court of Common Pleas of Erie County against the city, the mayor, and members of the city council. The complaint sought declaratory relief and a permanent injunction against enforcement of the ordinance. The trial court granted the injunction and struck down the ordinance as unconstitutional.
On cross-appeals the Commonwealth Court reversed the trial court's order. The Pennsylvania Supreme Court granted review and reversed again, holding that the public nudity provisions violated Pap's rights to freedom of expression under the First and Fourteenth Amendments.
The city petitioned for a writ of certiorari, which the United States Supreme Court granted. Pap's then filed a motion to dismiss the case as moot on the ground that Kandyland was no longer operating as a nude dancing club and Pap's was not operating such a club at any other location. The Supreme Court denied the motion.
Tabitha Taylor belongs to a religious group that distributes literature at airports. The Port Authority adopts a rule barring all solicitation and leafleting inside the terminals. Tabitha Taylor sues, arguing the rule violates her First Amendment rights. The court sustains the regulation because the terminals are nonpublic forums and the rule is reasonable and viewpoint neutral.
International Society for Krishna Consciousness, Inc. (ISKCON) v. Lee505 U.S. 672 (1992)
The Port Authority of New York and New Jersey owns and operates three major airports in the metropolitan New York City area: John F. Kennedy International Airport, LaGuardia Airport, and Newark International Airport. These airports together form one of the busiest airport systems in the country, with approximately 1,300 daily flights and 80,000,000 passengers per year.
The airports are funded by user fees and operated to further the efficient use of air transportation. The terminal areas at each airport are divided into public areas, which include the central terminal areas and the arrival and departure areas, and restricted areas, which are limited to authorized personnel. The public areas house restaurants, snack stands, gift shops, ticket counters, baggage claim areas, car rental agencies, and other commercial activities.
The International Society for Krishna Consciousness, Inc. is a not-for-profit religious corporation whose members perform a ritual known as sankirtan. Sankirtan is a religious ritual that includes the chanting of a religious mantra, dancing, and the distribution of religious literature. The purpose of sankirtan is to spread the message of Krishna consciousness to the public and to solicit financial support for the religious movement. ISKCON wishes to perform sankirtan at the airports.
In 1988, the Port Authority adopted a regulation forbidding the repetitive solicitation of money or the sale or distribution of literature in the terminal areas of the airports. The regulation applies to all repetitive solicitation and distribution activities, regardless of the content of the speech or the identity of the speaker. The regulation permits solicitation and distribution on the sidewalks outside the terminal buildings.
ISKCON filed suit in the United States District Court for the Southern District of New York challenging the regulation on First Amendment grounds. The District Court granted ISKCON's motion for summary judgment. The Court of Appeals for the Second Circuit affirmed in part and reversed in part. The Supreme Court granted certiorari to resolve a conflict in the Courts of Appeals over whether airports are public forums for First Amendment purposes and whether regulations such as the one at issue here are valid. The facts in this case are not in dispute.
Tristan Thompson leads a labor union that pickets a city official's home to protest policy decisions. The city enforces an ordinance that prohibits all residential picketing except labor disputes involving the resident's own employer. Tristan Thompson challenges the ordinance. The court strikes it down because the distinction between labor and non-labor picketing is content based and fails to qualify as a valid time, place, or manner regulation.
Carey v. Brown447 U.S. 455 (*1980*)
The Illinois residential picketing statute generally bars picketing of residences or dwellings but exempts from its prohibition the peaceful picketing of a place of employment involved in a labor dispute. It also exempts picketing of a residence used as a place of business, picketing by a resident of his or her own home, and picketing at the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.
On September 6, 1977, several of the appellees, all of whom are members of a civil rights organization entitled the Committee Against Racism, participated in a peaceful demonstration on the public sidewalk in front of the home of Michael Bilandic, then Mayor of Chicago, protesting his alleged failure to support the busing of schoolchildren to achieve racial integration. They were arrested and charged with unlawful residential picketing in violation of Ill. Rev. Stat., ch. 38, § 21.1-2 (1977). Appellees pleaded guilty to the charge and were sentenced to periods of supervision ranging from six months to a year.
In April 1978, appellees commenced this lawsuit in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Illinois residential picketing statute is unconstitutional on its face and as applied, and an injunction prohibiting defendants from enforcing the statute. Appellees did not attempt to attack collaterally their earlier state-court convictions, but requested only prospective relief. The District Court, ruling on cross-motions for summary judgment, denied all relief.
The Court of Appeals for the Seventh Circuit reversed. The Supreme Court noted probable jurisdiction.
How does a court distinguish a valid time, place, or manner regulation from an invalid content-based restriction?
A regulation is content neutral when it applies without regard to the message conveyed. Courts then apply intermediate scrutiny to determine whether the rule advances an important interest unrelated to suppressing speech and is narrowly tailored without burdening substantially more speech than necessary.
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What level of scrutiny applies to a content-neutral must-carry rule imposed on cable or streaming platforms?
Intermediate scrutiny applies. The government must show that the rule advances an important interest unrelated to the suppression of speech and does not burden substantially more speech than necessary.
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Can a time, place, or manner regulation survive intermediate scrutiny if less restrictive alternatives exist?
The regulation may still survive if the chosen means are narrowly tailored to the government's interest. Courts do not automatically invalidate a rule merely because another approach might impose a smaller burden.
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Does a regulation that incidentally displaces some private speech necessarily fail as a time, place, or manner restriction?
No. Incidental displacement is permissible when the rule is content neutral, advances an important non-speech interest, and does not burden substantially more speech than necessary to achieve that interest.
Supporting sources
447 U.S. 455 (1980)
…law). Moreover, we have often declared that "[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content." Erznoznik v. City of Jacksonville , 422 U. S. 205, 209 (1975) (emphasis supplied). See, e. g., Cox v. New Hampshire , 312 U. S. 569…