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I understand that the first amendment enshrines freedom of speech. However, can the location where someone speaks pose a limit to this? Is it different between public and private property?

  • Governments are not more able or less able to restrict freedom of speech on private or public property. Why would you think they might be? – phoog Mar 7 '16 at 22:57
  • The government cannot prohibit political speech on public property or on private property. I may prohibit political speech on my private property (but obviously not on public property because it's not mine). The government can also prohibit certain kinds of speech, anywhere, such as revealing top secret information -- not legal anywhere. So location isn't material, only content is. – user6726 Mar 7 '16 at 22:59
  • @phoog That's certainly not true. The government can't ban partisan political speech on private property. They can ban it on an army base. – cpast Mar 8 '16 at 0:10
  • @cpast but if they can do that it's because there is a compelling interest that passes strict scrutiny, and that has little to do with the ownership of the property on which the military base is situated. Are you saying I'm not allowed to go to a military base and say "vote for Sanders"? – phoog Mar 8 '16 at 1:15
  • @phoog The Supreme Court has ruled that military bases may flat-out prohibit organized campaign activity on base. The government can also do that in federal office buildings, or in a courtroom, or in a post office, or in most kinds of government property that aren't roads, sidewalks, and parks. Strict scrutiny is not involved; the government has a lot of leeway to regulate speech in nonpublic government-owned forums. No compelling interest is needed, and the regulation just needs to be reasonable given the nature and purpose of the property. Strict scrutiny is only needed in public forums. – cpast Mar 8 '16 at 2:27
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I'm going to have to disagree with people saying that location is irrelevant. In some cases, the government does have enhanced power to regulate speech on certain kinds of property, because the government-as-landlord can do things the government can't do in other contexts (just like the government-as-employer has more leeway to regulate speech of employees). The relevant question is whether or not the location is a public forum, which means whether or not it's an area that's open to general discussion and debate. Nonpublic forums include military installations, courtrooms, government office buildings, post offices, etc. None of these places are set up for general public discussion. They all have specific purposes, and are allowed to be regulated to ensure they meet those purposes.

If you are in a nonpublic forum, the government still cannot generally discriminate based on viewpoints (there could be some military-related exceptions when civilians are subject to military law, but the general rule is no viewpoint discrimination). However, it can establish extensive rules to regulate permissible content of speech, and is only bound by the requirement that the rules be reasonable. There is a limit (the Board of Commissioners of LAX passed an ordinance to ban, and I quote, "all First Amendment activities" in the terminal; this was not considered reasonable), but the fact that the government is bound by the First Amendment doesn't mean they have to abandon any authority to control the use of their property.

However, not all government property can be a nonpublic forum. The government doesn't get to designate an area traditionally used for public discussion (like a street, a park, or similar) as a nonpublic forum; it must treat those as public forums. (There's an intermediate level too, which is designated as a public forum for certain purposes but is not a traditional public forum, where the rules are intermediate between public and nonpublic forums). In a public forum, all the normal rules apply; the government can't ban political speech on a sidewalk any more than it could ban it in on your front lawn. The government can impose reasonable time, place, and manner restrictions as long as they're narrowly drawn to advance an important government interest and they still leave plenty of alternative ways to speak, but it doesn't get the deference on content restrictions seen in nonpublic forums. Content-based restrictions in public forums have to meet the same kind of standards needed for the government to impose content-based restrictions on private property.

Which brings us to private property. This is generally classed as a nonpublic forum under the federal Constitution, although some states (like California) class some private property (like shopping centers, which are a modern gathering place equivalent to traditional public forums like town squares) as public forums. Also, under the federal Constitution, in a privately owned company town the traditional public forums are still public forums despite being privately owned. What the distinction means here is whether the trespass laws can be used by the owner to restrict speech. In public forum private property, you cannot be convicted of trespass for engaging in what would be protected speech on a government-owned street.

Other than that, the government is as restricted in regulating private property as it is in regulating public forums, if not more so. The property owner, however, can regulate it, and the state backs them up through trespass laws.

  • I agree with all of this. I'll delete my answer. I guess I was saying that it's never location per se that is the reason but rather, other factors like government control, or purpose of the space, etc. However, a plain reading of the question clearly equates those to things, so for the OP's purposes, your answer is probably more right than mine. – user3851 Mar 8 '16 at 6:53
  • The first amendment does not protect you from being sued for defamation if your free speech is a bunch of crap that damages someone's reputation of course. This doesn't mean the government can stop you making it, only that you have to pay for the privilege. – Dale M Mar 8 '16 at 11:55
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You are confusing the right of freedom of speech with other concepts that can be linked to speech.

Let me give an example. In the U.S. you have the right to say that your next door neighbor has sex with rodents. However, if your your statement is false, you are liable for the tort of slander. You are free to make your slander but you have to pay for any injury you may cause if exercising your free speech interferes with the legal right of another.

This is unlike most countries where you can be jailed or enjoined for making false statements.

The same goes for the location of your free speech. Your right of free speech does not include the right to engage in trespass.

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Edit: Unalienable, not inalienable

It doesn't end, regardless of location or circumstances. It's "unalienable", which means "unable to be taken away from or given away by the possessor".

The First Amendment, along with the other nine in the Bill of Rights are considered unalienable. They can be suppressed by oppressive governments, but the Founding Fathers understood that they can never truly be taken away.

You can always speak your mind, even if you're gagged and locked in a room by yourself, or standing in front of a firing squad.

You can always bear arms, because any object can be a weapon, even your own body.

There are some rights listed that are more subtle, like the 4th Amendment, but if they're violated regularly, backlash from the community will be an inevitable result at some point.

The 10th Amendment, also follows this logic, once you consider it. People decide what their rights are, these are never truly "given" by governments. People may surrender their rights for a time, but eventually they will reclaim them. With this understood, it's obvious that additional rights would be declared (not "given") at the state level, and finally the ultimate arbiters, the people themselves.

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    Do you have any citations to support your definition of "inalienable" rights or your assertion that the rights conferred in the bill of rights meet that definition? One's ability to speak one's mind does not mean that one has freedom of speech. Freedom of speech means that the government can't make laws prohibiting you from saying something. I am free to go next door and run away with a carton of milk, but that doesn't mean I have a right of theft. – phoog Mar 7 '16 at 23:49
  • You don't have an unalienable right to theft, because such thefts can be prevented by the property owner making the item inaccessible to you, or simply not possessing such an item in the first place. – jb listener Mar 8 '16 at 0:02
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    @jblistener The bill of rights was passed by representatives of the people as a set of constraints on the government. They were passed by the people and they are maintained by the people. – user3851 Mar 8 '16 at 0:22
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    @jblistener I was correcting your description that they are a "warning" to government, or "reminders" to citizens, or "guideline". The Supreme Court doesn't maintain the bill of rights. It interprets and applies it. If the people wanted to change the bill of rights, they can do so. The Supreme Court wouldn't have a say (other than requiring that the constitutionally established amendment process is followed). The Bill of Rights is maintained only for as long as the people (via their elected representatives) desire it. – user3851 Mar 8 '16 at 0:25
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    @jblistener Regardless, I can't tell what your answer to the question is. Are you saying that being on private vs public property does affect the first amendment analysis? If so, in what cases? I'm not aware of a case where the fact that you are on public property or not was the critical piece of the analysis. There has always been other governmental interests aside from it simply being public land that have been when a speech restriction has been allowed. – user3851 Mar 8 '16 at 0:32

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