The world of content neutrality: effective approaches to a problematic area of the First Amendment.

AuthorBurke, Kevin

"A special respect for individual liberty in the home has long been part of our culture and our law ... that principle has special resonance when the government seeks to constrain a person's ability to speak there." (1)

  1. INTRODUCTION

    The United States Supreme Court has long recognized the importance of certain types of speech, and as a result, any law regulating speech of serious societal value must survive strict scrutiny--an extremely rigorous level of constitutional review. (2) At the same time, the Constitution affords other types of speech little to no protection. (3) The Supreme Court's jurisprudence regarding laws regulating socially important speech is separated into two categories, created to separate the way the law affects speech. (4) If the reviewing court holds the law is content based, meaning the law regulates speech based on the message conveyed, then the law is subject to strict scrutiny. (5) Alternatively, if the law is content neutral, meaning its regulation is not based on the expression itself, then the law is subject to intermediate scrutiny, a lower level of judicial review. (6)

    Due to the demanding nature of strict scrutiny, a reviewing court's decision regarding a law's content neutrality is often dispositive as to its constitutionality. (7) As a result, any confusion surrounding this analysis could have negative consequences regarding the regulation of public speech and expression. (8) Confusion arises specifically in the context of an individual's use of political or religious signs on private property, or in any form of expression that relates to a matter of current social concern or evokes negative reactions from the viewing public. (9)

    Recently, federal courts have struggled to employ a consistent and effective test to determine whether a law is content based or content neutral. (10) As explained in a recent Fourth Circuit decision, at least three courts chose to take an absolute approach, which holds a law is content based if it requires any examination of content. (11) Alternatively, at least five circuits followed a practical approach, meaning a review of the content does not automatically render a law content based, as long as it does not differentiate based on disagreement with the message expressed. (12) In Reed v. Town of Gilbert, (13) the Supreme Court seemingly adopted the absolutist approach while attempting to alleviate the confusion surrounding the content-neutrality analysis. (14)

    Part II.A of this Note will outline the basic principles of the content-neutrality doctrine and the general implications of a positive determination. (15) Parts II.B and II.C will discuss specific aspects of the Supreme Court's jurisprudence, namely the secondary effects doctrine and the distinction between speech on public and private property. (16) Part II.D will describe the role of governmental motive in courts' determinations and the conflicting approaches within court cases. (17) Part II.E will detail the current federal circuit split and the Supreme Court's responsibility to formulate a more effective rule or test. (18) Finally, Part III will argue that the determination of governmental motive should not be a necessary component of the content-neutrality determination, and that the absolute approach is preferable, particularly when evaluating laws that regulate speech on private property. (19)

  2. HISTORY

    1. Limitations on the First Amendment and the Birth of the Content Distinction

      The First Amendment to the U.S. Constitution provides in part, "Congress shall make no law ... abridging the freedom of speech." (20) Despite the sweeping language, the Supreme Court has long recognized that not all speech is equally protected; the Constitution affords certain types of speech little to no protection because of the speech's minimal value to public discourse. (21) The Court, however, has gone to great lengths to preserve the notion that free speech on topics of high value or public issues is crucial to a free and functioning democracy. (22) While the Court historically has not subjected the content of such speech to censorship, it has upheld the constitutionality of laws regulating the manner in which one makes such speech; these are "time, place, and manner" restrictions, which may reasonably restrict speech based on those three criteria, without regard to its subject matter. (23)

      In the 1960s, the Supreme Court began to recognize the important distinction between regulating speech based on its content, and regulating all speech equally. (24) Rather than employing a First Amendment analysis, however, the Court initially considered the issue from an equal protection standpoint. (25) That analysis eventually evolved into one of the most important frameworks of free speech jurisprudence--the constitutional review applied to a law regulating speech is now based on whether the law is deemed "content based" or "content neutral." (26) A content-based law that regulates speech based on its subject matter or message is subject to strict scrutiny, the most rigorous level of constitutional review, whereas a content-neutral law that regulates regardless of the speech's subject matter or viewpoint must withstand intermediate scrutiny. (27) This distinction is ubiquitous within the Court's First Amendment analysis, and its determination is often dispositive of the constitutionality of the law at issue. (28) Further, this distinction, and the profound consequences it carries, is based on the Supreme Court's recognition that laws regulating the content of speech undermine the First Amendment's purpose because such laws single out certain views or subjects. (29)

    2. The Evolution Continues: The Secondary Effects Doctrine

      In the 1980s, the Supreme Court drew a crucial distinction by holding that a law aiming to curtail the direct impact of a specific opinion or subject matter on the viewing public is inherently content based, whereas a law concerned with the secondary effects of that speech is still content neutral. (30) For example, in City of Renton v. Playtime Theatres, Inc., (31) the Court held that a law specifically regulating theaters showing adult films was not content based because the government aimed its purpose at the secondary effects of the speech: crime, property damage, and unsafe neighborhoods. (32) On the other hand, in Boos v. Barry, (33) the Court reinforced this distinction by holding that a law restricting signs critical of foreign governments within five hundred feet of government buildings was content based because it regulated the speech's direct impact on the viewing public. (34) Just one year later, in Ward v. Rock Against Racism, (35) the Court attempted to offer additional guidance by holding that the controlling consideration in assessing a regulation's neutrality is the government's purpose in enacting the regulation. If that purpose is unrelated to the speech's subject matter, it is considered content neutral regardless of its incidental effects on certain subject matters. (36) Similarly, in Madsen v. Women's Health Center, Inc., (37) the Court held an injunction that restricted the speech of antiabortion protesters near an abortion clinic content neutral. The Court remained silent, however, on the speech of abortion supporters, because it issued the injunction due to the protesters' violation of a court order. (38)

    3. Signs on Public and Private Property

      The distinction between content-based and content-neutral laws frequently emerges when individuals challenge statutes regulating the use of physical signs in public and private settings. (39) The most common justifications for ordinances controlling sign placement are to ensure safety by removing unnecessary distractions from motorists and to maintain aesthetically pleasing environments through stripping unnecessary visual clutter from publically visible areas. (40) Further, regulations surrounding election signs abound due to the inherently temporal nature of the signs significance, regardless of any recognition that political speech should enjoy a large degree of free speech protection. (41)

      In the 1970s, the Supreme Court began to analyze the banning of commercial speech on outdoor signs. (42) The Court has historically deemed commercial speech of lesser value than other types of speech, and thus the Court subjects commercial speech to a lower level of scrutiny. (43) In a concurring opinion, however, Justice Harry Blackmun argued that when the Court finds such censorship to have the intention or effect of stifling certain speech or distorting public opinion, the Court applies strict scrutiny. (44)

      In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (45) and Linmark Associates v. Township of Willingboro, (46) the Court held both statutes unconstitutional because they left open little to no alternative means of communication. (47) In Linmark Associates, the statute in question outlawed the use of any "for sale" or "sold" signs on real estate property. (48) The town of Willingboro enacted the statute in response to the decline of its white population. Testimony revealed that citizens engaged in "panic selling" out of fear that the town was becoming predominantly African American. (49) The Court found the statute unconstitutional for two reasons: first, it left open no satisfactory channels to communicate the sale of real estate, and second, the town's motivation in enacting the statute was to eliminate the sign's content due to its direct effect on the citizens. (50)

      In Metromedia, Inc. v. City of San Diego, (51) the Court addressed the novel issue of content neutrality regarding billboards. The decision yielded four separate opinions and no clear majority. (52) Based on aesthetic and safety concerns, the city of San Diego substantially reduced individuals' ability to post advertising display signs outdoors, exempting only onsite signs and twelve other narrow exceptions. (53) The...

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