Spatial Speech Issues

In some instances, the issues relating to expression focus more on where the speech takes place than what is actually said. The law over time and tradition has developed the public forum doctrine. The rationale behind the public forum doctrine is quite simple: Citizens need a space for public discussion. We cannot introduce ideas into the marketplace if there is no marketplace in which to introduce them. In 1939, Justice Owen Roberts crystallized this point, writing the following:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such  use of the streets and public places has, from ancient times, been part of the privileges, immunities, rights, and liberties of citizens (Hague, 1939).

When government attempts to regulate speech in a traditional public forum, it must do so in a content-neutral fashion. Here's an example of how this works: When the District of Columbia adopted an ordinance that prohibited displaying signs critical of a foreign government within 500 feet of its embassy, the U.S. Supreme Court struck it down as unconstitutional. After all, this type of protest was on a sidewalk—a traditional public forum—and the regulation was clearly content-based (aimed at speech critical of the foreign government). The Supreme Court, however, upheld the portion of the ordinance that allowed police to disperse protesters in that same locale if there was a threat to security. This latter rationale is unrelated to the content of the speech. Parsed differently, it is content neutral and, thus, a permissible restriction on speech.

 

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References

Hague v. CIO, 307 U.S. 496, 515 (1939).