Time, Place, and Manner Restrictions on Speech

Abstract

The category of time, place, and manner restrictions on speech, as supposedly distinct from absolute bans, appears to be central to free speech law. Even a modest examination of the case law, however, suggests the arbitrariness of any such distinction. Any familiar time, place, or manner restriction on speech can be reasonably re-described as an absolute ban on speech, and vice versa. Any differences in how the relevant regulations of speech should be judicially tested, whether by differing degrees of rigor or otherwise, are correspondingly arbitrary. This Article recommends abandoning any attempt to substantively distinguish between time, place, and manner restrictions and absolute prohibitions of speech. The three currently used judicial tests for presumed content-neutral restrictions on the supposed time, place, and manner of speech should be substantially revised and consolidated. Any replacement test should then de-emphasize concerns for any degree of narrowness of tailoring, focusing instead on whether the regulated speakers are now meaningfully worse off, in terms of their own free speech values, given whatever channels of communication remain available to them after the speech regulation in question has been imposed.