Free Speech Clause is Not Absolute

Appeals to common sense and logic did not keep the Rockville City Council from voting-in significant changes to the guidelines that certified candidates running for seats on the City Council must adhere to if particiapting in the annual Memorial Day Parade. Councilmember Tom Moore said his First Amendment right to political speech was being denied because marching bands and dance troops participating in the parade could carry banners and have an unlimited number of participants in their group, but candidates were allowed only 10 supporters and City specified signage.

I posted a piece here on Patch and spoke against the proposed changes at the Mayor and Council meeting. Unfortunately, the changes to supposedly "level the playing field" of candidates versus entertainers was approved. As a followup, I sent the following letter to the City Attorney with copies to the Mayor and Council.

Dear Ms Daniel,

I was very disappointed not only with the vote to allow banners and large groups of supporters to march with City Council candidates in the Memorial Day Parade, but also with how quickly, and without question, you and others agreed political speech was being denied those candidates. As I said in my testimony, just because someone says something is true, that doesn’t make it so. This is no more true than when discussing matters of law and interpretation of laws. The First Amendment, with respect to the free speech clause, has been the subject of many, many court cases, and not all decisions have gone to those saying their rights are being denied. These matters are not always black and white, and often end up in some of the highest courts in the Nation.

The idea that to be fair, parade groups must be limited to 10 members if candidates are so limited, or candidates can have 60 supporters marching with them if there are other groups with 60 members, or if they have big banners, we are entitled to big banners, is absurd. More time and thought should have gone into making the decision that was made, and as Counsel to the Mayor and Council, you might have suggested that.

As I looked deeper into the matter, I found there are limits that government can impose on the occasion, location, and type of individual expression in some circumstances (Time, Place, Manner).

Yes indeed, the First Amendment to the U.S. Constitution guarantees Freedom of Speech. This guarantee generally safeguards the right of individuals to express themselves without governmental restraint. Nevertheless, the Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever. Instead, the U.S. Supreme Court has repeatedly ruled that city, state and federal governments may place reasonable restrictions on the time, place, and manner of individual expression. Time, place, and manner (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice.

The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions. To pass muster under the First Amendment, TPM restrictions must be content-neutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication. Application of this analysis varies in accordance with the circumstances of each case.

The TPM restrictions are things that should have been considered. I imagine there are other situations where the Free Speech Clause is not an absolute. One might be “common sense”, which escaped everyone on this issue. Hopefully it will prevail on parade day.

Sincerely,

Joseph Jordan