George:

Mr. Cox raises a very good question. Unfortunately, as with many legal issues, the question does not lend itself to a "yes" or "no" answer (which is why it is a good question). Under current First Amendment precedent, the most accurate answer is, "It depends." It depends based on the particular factual circumstances of the case.

For example, based on the facts Mr. Cox provided in his message, I would argue that whoever moved Mr. Fields off was violating his constitutional rights. However, I can also speculate some additional facts that, if true, would change my conclusion. An entire legal article could probably be written on the nuance involved in this area of the law. As a general matter, any such action would be evaluated by a court using what is called a "time, place, or manner" analysis. In such cases, a government restriction on speech is sometimes upheld so long as it is not applied because of what is being said, but rather the restriction goes to limiting merely the time, place, or manner in which it is said. (A fun way to determine this is to ask would the restriction be enforced if the speaker was speaking in a language no one understood? If no, then it is pretty clear the government is attempting to restrict what is being said.)

But even if the restriction applies to the unintelligible speaker, there is a lot of nuance: are there reasonable alternative venues for the speaker to say what he wants to say? what exactly is the government purpose behind the time, place, or manner restriction? is the restriction more extensive than necessary to achieve the government's goal (assuming it is legitimate)? has the restriction been applied in a consistent, viewpoint neutral manner?

I know this is not a very satisfying answer but I believe it is a correct one.

Josh Wheeler (electronic mail, May 27, 2005)