The following is a transcript of " The Legal Lad's Quick and Dirty Tips for a More Lawful Life," a podcast from QuickAndDirtyTips.com. The audio program is available via RSS feed here and at TheStreet.com's podcast home page.
Hello, and welcome to
Legal Lad's Quick and Dirty Tips for a More Lawful Life
But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today's topic is the right to assemble in public places. James from Atlanta wrote:
My question pertains to city parks. These areas are owned by the city and maintained with taxpayer dollars, making them public places. Do city ordinances setting park hours conflict with the U.S. constitutional right to assemble? It seems to me that a public place should be accessible to the public at all times.
The short answer is that the Constitution guarantees the right to public assembly, but that the government may place reasonable restrictions on the time, place and manner for using a public space.
The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Please note that, while the text seems to apply only to Congress, the First Amendment applies to state and local governments also by operation of the Fourteenth Amendment. This is known as the "incorporation doctrine," which I do not have time to discuss in detail. Suffice it to say, the First Amendment applies to your local city government.
The text of the amendment states that the government "shall make no law" that abridges free speech and peaceable assembly, so it seems that James is on to something. If the local city government enacts a rule that closes city parks at 10 P.M., this would seem to be a law that abridges free speech and assembly.
But, the Supreme Court has interpreted this language to permit the government to place reasonable restrictions on the time, place and manner in which people publicly speak or assemble.
There are several facets to this area of law. The first is that the government cannot generally place restrictions on the content of the speech, or the reason for which citizens might assemble. So, it would be unconstitutional to ban the dissemination of pamphlets that seek donations to the Ku Klux Klan.
While people might disagree with the KKK and its speech, the government cannot create any rule where the KKK is censored. The Supreme Court has long acknowledged that the remedy for repugnant speech is not government censorship, but simply more speech.
The remedy is to allow the KKK to speak and assemble, and also to allow other citizens who disagree with the KKK to speak back, and to assemble to protest the KKK.
While the government cannot restrict what is said, it can restrict where and when it is said. While speech and assembly are fundamentally important to a free and democratic society, the Supreme Court has recognized that a government's ability to keep order is sometimes more important.
Imagine what would happen if the government had no power to control speech. Then, a protest group would have the right to stand in the middle of a public highway during rush hour, blocking traffic and shutting down commerce. Or, the protest group could stand in the middle of the town square with a megaphone and bellow through the night, waking people up and disturbing them in their homes.
The Supreme Court has struck a balance between these competing goals of free speech and keeping order. The Court has held that the government may place reasonable restrictions on the time, the place, and the manner in which people speak and assemble. So, the government can limit the hours of assembly in a public park so long as that limitation is reasonable.
Courts have consistently held that shutting down public parks at night is a reasonable thing to do, even if it means that people will not be able to utilize the park to assemble. A court would not likely look favorably on a rule that only allowed groups to protest from 10:37 to 11:18 on alternate Thursdays because this rule would limit speech in an unreasonable manner, and in a way that has no rational connection to the government's legitimate interest in maintaining its public spaces.
Courts have also upheld noise ordinances that limit the use of megaphones. This is considered a reasonable restriction on the manner in which a person speaks. Governments can also limit the medium of speech, such as prohibiting writing a message in spray paint on the front door of city hall.
Last, courts have upheld a local government's ability to require a permit for large assemblies. For example, imagine that a veteran's group and an anti-war group both wanted to assemble in front of city hall on Veteran's Day. The city needs a way to accommodate both and allow both groups to assemble, so it can set up a process where a permit is required beforehand. This way, the city can avoid the problem of two large groups trying to congregate in a small space at the same time.
So long as the permitting process is generally fair, and divests the government from making arbitrary decisions about which groups to support, then the city can require that groups get permits. As discussed above, the city cannot choose which group to give the permit to based on which group it likes better. That would be an example of the government controlling speech based on its content.
So James, the city does have the right to close public parks at night, even though it has some impact on your ability to meet there.
Michael Flynn writes and records the
Legal Lad articles and pocdasts. A graduate of Tufts University and the University of California, Hastings College of the Law, he currently works as a research attorney for a California trial court.
Disclaimer: Please note that the legal information featured in Legal Lad articles and podcasts is presented for educational purposes only and is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, Michael Flynn's name is only being provided for authorship purposes, and not to advertise any legal services. To request a topic or share a tip, send an email to firstname.lastname@example.org or call 206-202-4LAW.