When does the application of a law raise a First Amendment concern? Though seemingly an elementary question, the answer often turns out to be quite ambiguous. If a law's application does implicate the First Amendment, courts employ various tests to determine whether there is a First Amendment violation. Content-based regulations usually trigger very exacting scrutiny;(1) but if the targeted speech falls within certain narrowly-defined categories, the scrutiny decreases.(2) Content-neutral provisions generally provoke a more intermediate level of review.(3)
To trigger any of these tests, however, the law's application must as a threshold implicate the First Amendment at all. Understandably, laws that aim at speech or that in most applications affect expressive activities will always raise a First Amendment issue, Coptent-based provisions fit in this category, as do content-neutral laws that directly target speech (such as laws prohibiting leafleting,(4) handbill distribution,(5) or posting of signs(6)) or that inevitably burden expression(7) (such as laws imposing a special tax on paper and ink,(8) banning honoraria for speeches,(9) or barring criminals from selling their stories(10)). The doctrinal confusion arises with respect to another type of content-neutral provision: "generally applicable" laws that primarily aim at nonexpressive activities,(11) but that in some applications "incidentally" restrict speech.(12) Free speech doctrine is unclear when such incidental restrictions raise a First Amendment concern.
Intuitively, some incidental restraints seem to implicate the First Amendment. For example, the use of a noise ordinance to halt a political rally may seem to warrant First Amendment review, even though the law applies generally to both noisy speeches and noisy jackhammers.(13) On the other hand, an increase in general corporate tax rates would impede the publishing activities of a book company, but enforcing the rate change against the publisher may seem not to raise any First Amendment issue.(14) Although intuition might suggest that the noise law but not the tax law should trigger First Amendment scrutiny, free speech doctrine is far from clear why (and whether) the laws do in fact have different constitutional implications. Specifically, in what circumstances do incidental effects like those produced by the tax and noise laws implicate the First Amendment? The answer is significant, for it determines whether government must come forward with justification sufficient to withstand First Amendment scrutiny. Yet the Supreme Court has paid the question little attention,(15) and its cases examining incidental restraints seem to point to conflicting conclusions. A closer analysis, however, reveals an explanation that reconciles these cases, and that in general rationalizes the Court's approach to incidental restrictions of speech.
The Supreme Court could of course adopt either of two blanket rules, both of which are plausible-that incidental restraints should never raise a constitutional concern, or that they should always trigger some level of First Amendment scrutiny. The Court has embraced the former view in its free exercise jurisprudence: Employment Division v. Smith holds that the incidental effect of enforcing a generally applicable law against religiously motivated action never concerns the Free Exercise Clause.(16) Justice Scalia, who wrote the Court's opinion in Smith, would also completely except incidental restrictions of speech from First Amendment coverage.(17) Adopting his position would signal that the Court's primary concern when dealing with incidental restraints is with legislative motivation: Since generally applicable laws by definition target nonexpressive activities, their legislative purpose most likely is not related to suppressing speech; thus, if legislative motivation is the central consideration, their application in a way that incidentally affects expression would never implicate the First Amendment.(18)
But the Court has not subscribed to this blanket rule. Sometimes, laws not aimed at speech must nevertheless satisfy a First Amendment balancing test if their application incidentally burdens expressive activities. For instance, a law that prohibits sleeping in public parks normally does not affect speech; but in Clark v. Community for Creative Non-violence, the Supreme Court found that such a regulation must satisfy some level of First Amendment scrutiny when enforced against demonstrators who camp overnight to protest homelessness.(19) And in its famous decision in United States v. O'Brien the Court made clear that "incidental limitations of First Amendment freedoms" at least sometimes raise a First Amendment concern,(20) and set forth a test--essentially a form of intermediate scrutiny-that it would apply to incidental restraints.(21) O'Brien, Clark, and other cases subjecting incidental restrictions to First Amendment scrutiny verify that the Court does not regard all generally applicable laws outside the scope of First Amendment review,(22) and that legislative motivation is not the only consideration guiding the Court's treatment of incidental restraints.
A different consideration, speech-restrictive effect, would justify the opposite blanket rule--that incidental restraints should always trigger some level of First Amendment scrutiny. The speech restrictive effect of incidental restrictions can be quite substantial. In fact, incidental restraints can produce precisely the same consequences for expressive activities as direct, even content-based, restrictions.(23) For instance, the general regulation banning camping in public parks has the same restrictive effect on overnight demonstrations as does a law that specifically prohibits protesting the plight of the homeless by camping, even though in the former case the impact is incidental while in the latter it is direct. A similar comparison can be made whenever a general law incidentally restricts speech.(24) In this light, a focus on speech-restrictive effect suggests that incidental restraints should always raise a First Amendment concern. Justice Souter, joined by three other Justices, seemed to endorse this view in his dissent in Cohen v. Cowles Media,(25) and Justice Blackmun voiced a similar view on behalf of two other Justices in his dissent in Arcara v. Cloud Books.(26)
The Court, though, has not adopted this blanket rule either, sometimes refusing to apply any First Amendment scrutiny to laws whose application incidentally burdens speech. It has, for instance, upheld enforcement of labor, antitrust, and nuisance provisions against newspapers and bookstores without engaging in any balancing analysis whatsoever, despite the restrictive effect on expressive activities.(27) Its reluctance to subject every incidental restraint to First Amendment scrutiny stems from a fear that this would require subjecting an enormous range of laws to a constitutional balancing analysis. In some sense, in fact, every law could incidentally restrict speech in certain applications:(28) A parking ordinance incidentally restricts speech when applied against an illegally-parked newspaper delivery van; the tax code burdens speech when used to tax a book publisher. A view that would subject all incidental burdens to First Amendment scrutiny thus could effectively obligate courts to apply a First Amendment analysis to every law.
In the Court's view, such profound implications for judicial review suggest that incidental restraints simply cannot always trigger First Amendment scrutiny--the resulting deluge of First Amendment claims could overwhelm the courts with constitutional balancing inquiries.(29) "Any other conclusion," Justice O'Connor maintains, "would lead to the absurd result that any government action that had some conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amendment."(30) This concern with "First Amendment overload" is somewhat unclear, for the balancing inquiry need not be an involved one in every case; the Court could quickly dispense with situations like the arrest of a newscaster for speeding by engaging in only a pro forma balancing.(31) Perhaps the Court's uneasiness with excessive balancing stems from a fear that overuse of First Amendment scrutiny would trivialize the significance of applying First Amendment protections. Or perhaps the Court is reluctant to subject all generally applicable laws to a "least restrictive means" examination (there is no rationality review in First Amendment analysis),(32) even the weaker form of that analysis associated with the O'Brien standard.(33) Or perhaps the Court simply, and rather understandably, thinks it inappropriate to include every incidental effect--even if as remote as that produced by a speeding law--within the reach of the First Amendment.(34) But whatever the reason, the Court clearly desires some limiting principle, and so while incidental restrictions sometimes trigger First Amendment scrutiny, they do not always.
The Court thus has not adopted an all or nothing philosophy-incidental restraints sometimes implicate the First Amendment and sometimes do not. From a doctrinal perspective, identifying the specific circumstances in which they trigger a First Amendment analysis is plainly significant: The difference between applying some scrutiny and no scrutiny whatsoever is, at bottom, a doctrinal distinction, that not only determines whether the government must at the very least justify the incidental burden under some balancing test, but also in a broader sense delimits the scope of the First Amendment. From a practical perspective, the distinction may seem less critical, since the Supreme Court thus far has applied the O'Brien analysis with little bite when examining incidental restrictions.(35) Yet the distinction is not without practical significance. The...