Q: For the past 3-4 years a Pro-Life protester has been rotating amongst our area’s elementary schools in November – December. During this time of year the students are undergoing various state standardized testings and writing assessments. The visual posters are extremely disturbing to the children and sets back the start to the days educational teaching. Personally, my child scored a 1 out of 4, 4 being the highest score, on her reading FAIR test the day the protester was at the drop off area for the school.
The parents have organized to request assistance from the city commissioners and the school board looking for ways to regulate the type of visual images that are used within a two-mile radius of the school. Because of how they approached this situation in the past (addressing the protester as a whole and not looking to regulate the type of visual signage) which resulted in a lawsuit where they did not prevail, they are reluctant to look for other ways to address the obscene and intrusive visuals that are adversely affecting our children. We feel that the children’s right to a safe and conducive learning environment is being infringed upon. Any assistance with existing case law that either protects children’s access to school without the fear of visual R- rated graphics or guidelines on visuals within a school’s radius or anything that would help us is greatly appreciated.
A: Your inquiry raises some interesting questions regarding the First Amendment and free speech rights, and is necessarily fact-specific. Unfortunately, we do not have the resources here at the FAC to provide you with an in-depth analysis. Generally speaking, however, the inquiry as to whether speech restrictions are permissible under the First Amendment turns on the type of space involved and whether the restrictions are reasonable in terms of time, place and manner.
Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums.” Conduct in public forums is protected by the First Amendment and can only be restricted if a high standard is met.
In either a traditional or designated public forum, the government may restrict the time, place and manner of the speech through reasonable regulations, as long as enforcement is content neutral.
Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).
In addition to being content neutral, a time, place and manner restriction must be: (i) narrowly tailored, (ii) serve a significant government interest, and (iii) leave open ample alternative avenues of communication.
As you can see, whether a particular space constitutes a public forum is necessarily a case-specific, fact-intensive inquiry. You might want to consider contacting an attorney, and the Florida Bar Association has a Lawyer Referral Service that you might find helpful.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.