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"Is Speech Really Free? It depends."Jonathan M. Carrillo

Despite what many Americans believe, the United States Supreme Court has consistently said that the First Amendment does not give citizens unfettered freedom of speech. As the Supreme Court held in Heffron v. Int'l Soc. For Krishna Consciousness, Inc., 452 U.S. 640, (1981), “[t]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”

The extent to which the government may restrict speech depends on whether the speech occurs in a traditional public forum, a designated public forum, or a limited public forum. See Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011). A public space, such as a park, is a classic public forum where restrictions on speech are reviewed under strict scrutiny. In contrast, speech in a limited public forum, such as a town hall meeting, may be restricted on the basis of time, place, manner and content, but not viewpoint. See Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828-30 (1995). See also Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006).

One important line of cases deals with speech restrictions at town hall meetings and other public government forums. In light of this country’s current political climate, where intolerance for opposing views seems commonplace, town halls and other similar government forums are where free speech rights are most important. Some would say the town hall is the bedrock of American democracy—Henry Thoreau called it, “the true Congress ... the most respectable one ever assembled in the United States.” Thus, courts evaluating free speech claims arising out of town halls and similar government forums must carefully balance the oft competing interests of free speech and reasonable speech restrictions.

Courts have held that speech at limited public forums, like town halls, may be constrained in order to prevent citizens from engaging in disruptive or truculent behavior. See Eichenlaub v. Township of Ind., 385 F.3d 274, 281 (3d Cir. 2004) (applying the public forum analysis to Township’s curtailing of disruptive speech at a public meeting); Collinson v. Gott, 895 F.2d 994, 995 (4th Cir. 1990) (upholding the removal of a citizen from a public meeting for interruptions and truculence); and Jones v. Heyman, 888 F.2d 1328, 1329-1332 (11th Cir. 1989) (validating the mayor’s silencing and removal of a citizen from a public meeting for disruptive behavior). In Olasz v. Welsh, 301 Fed. Appx. 142 (3d Cir. 2008), the Third Circuit held that a council president’s ruling that the plaintiff was “out of order,” and his order to police to eject the plaintiff during a local government meeting for being disruptive, was “the type of time, place, and manner regulation that survives even the most stringent scrutiny for a public forum.” In upholding the District Court’s decision to grant summary judgment in favor of the defendant, the Third Circuit cited Eichenlaub and agreed with the District Court that the council president’s actions constituted appropriate time, place, and manner regulations since he constrained plaintiff’s disruptive behavior and stopped the plaintiff from violating the rules of decorum.

It is fair to question whether cases such as Eichenlaub and Olasz set dangerous precedents that can be abused by local politicians or policymakers with unscrupulous motivations. It is easy to imagine government officials abusing their discretion in determining what behavior is “disruptive” or “truculent.” Disruptiveness and truculence can be easily conflated with passion and zeal, especially in today’s political climate. On the other hand, as the court held in Eichenlaub, failing to restrain speech at town halls would allow speakers to hijack or filibuster the proceedings and “impinge on the First Amendment rights of other would-be participants.” Government officials, at any level, should not countenance disruptive behavior or speech. Whether these types of cases increase the likelihood of viewpoint censorship by allowing censorship to be more easily disguised, or whether these cases protect our jurisprudential axiom that speech is not unlimited, is a serious question with far-reaching implications for all Americans. Moving forward, it will be interesting to see how courts decide these types of cases given America’s present political zeitgeist.