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I have an exam coming up in a few days. I'm more-or-less prepared, but can't figure out to what extent the doctrines I've learned (i.e. TPM regulation & symbolic speech) apply to speech on private property.

I understand that if a legislature wanted to make a law like, "No speaking in the park after 6pm," it's in a traditional public forum so full First Am. protection applies. The law is a TPM restriction and has to be content-neutral, narrowly-tailored to serve a significant gov't interest, and has to leave ample alternative channels of communication open.

But what if the law was, "No speaking in private movie theaters while movies are playing"? Does TPM analysis apply to private property? What about, "No speaking in your home while watching movies" -- does that get analyzed as a TPM restriction as well?

Also -- fundamental question that I really should know the answer to -- if a regulation fails the TPM or O'Brien tests (i.e. by not being content-neutral or leaving ample alternative means of communication open), does it get strict scrutiny, or is it just declared unconstitutional?

As far as I remember if something fails TPM/Obrien (intermediate scrutiny) it will be because the government doesn't have a sufficient "significant interest" to justify the intrusion into the first amendment. As such, should strict scrutiny apply the government would surely be unable to demonstrate a "most compelling justification." I think technically, you would analyze under strict Scrutiny but the real question comes earlier because once we get into SS the government very rarely wins.

To your other question, I dont think the government can regulate the speech that takes place within private places. Obviously, in your hypo, a cinema owner could pass a law and the first amendment wouldnt apply because there is no government action. The government can regulate broadcast media within the home (through strict scrutiny) because of the pervasiveness of broadcast television and the substantial risk that children will be exposed to it.

You know the answer.

Trust your instincts young jedi.

You have a very good grasp of this already.

This is not the issue you think it is ......

Studying for my con law 2 final as well, and here are my thoughts:

1. There is not a right to use private property owned by others for speech. The Constitution does not apply to private properties.

2. Unless the private property is held out as a public property, then first amendment may apply. In Marsh v. Alabama, a company owned a town or something and prohibited Jehovah witnesses distribute religious materials at the town center. The court held that since the privately owned town center served as a public forum, it triggered First Amendment protection. [Caveat: I don't remember if Marsh was overruled by later cases like Amalgamated Food Employees Union v. Logan Valley Plaza].

target wrote:Studying for my con law 2 final as well, and here are my thoughts:

1. There is not a right to use private property owned by others for speech. The Constitution does not apply to private properties.

2. Unless the private property is held out as a public property, then first amendment may apply. In Marsh v. Alabama, a company owned a town or something and prohibited Jehovah witnesses distribute religious materials at the town center. The court held that since the privately owned town center served as a public forum, it triggered First Amendment protection. [Caveat: I don't remember if Marsh was overruled by later cases like Amalgamated Food Employees Union v. Logan Valley Plaza].

Right of access to private property is a different issue; there is generally no public right of access, but the USSC has said in a few cases (as you noted) that the circumstances of a particular place make it so private property owners can't exclude. (I.e. a shopping mall in a case called PruneYard.)

If speech is in a nonpublic forum (i.e. a courthouse), regulations need only be viewpoint-neutral and reasonable. In public forums (streets, parks, and sidewalks) full FA protection applies.

My question is whether the government can punish speech that happens on your own (or on others') private property. In the hypo I gave, it was the legislature, not the movie theater owner, saying, "You can't speak in movie theaters while a movie is playing." If someone spoke in the theater and later argued, "Aha! The First Amendment protects me from the government burdening my speech, time for dat dere TPM analysis," would the Court say, (1) "You're on private property, so full FA protection doesn't apply. Judgment of conviction upheld"; (2) "You're on private property, so the gov't can't regulate your speech. Judgment of conviction overruled"; or (3) "Applying TPM, this rule must be C/N, N/T, AAM. [Analysis.] Therefore, the law is [constitutional/unconstitutional.]"?

Same answer if it's the law targets people in their homes (private property open to the public v. actually private property)?