Uncertainty Is the Only Certainty: a Five-category Test to Clarify the Unsure Boundaries Between Content-based and Content-neutral Restrictions on Speech

• Citation: Vol. 65 No. 2
• Publication year: 2015

Uncertainty Is the Only Certainty: A Five-Category Test to Clarify the Unsure Boundaries Between Content-Based and Content-Neutral Restrictions on Speech

Jay Alan Sekulow

Erik M. Zimmerman

UNCERTAINTY IS THE ONLY CERTAINTY: A FIVE-CATEGORY TEST TO CLARIFY THE UNSURE BOUNDARIES BETWEEN CONTENT-BASED AND CONTENT-NEUTRAL RESTRICTIONS ON SPEECH

Jay Alan Sekulow^* Erik M. Zimmerman^**

Abstract

The lines between content-neutral, content-based, and viewpoint-based restrictions on speech remain unclear in key respects despite the critical importance that these characterizations hold within First Amendment jurisprudence. This Article will analyze the law concerning the boundaries between these categories of laws with respect to speech activities in public and limited forums. The Article argues that the following five categories of laws are inherently suspect under the Free Speech Clause and should be treated as such:

1. The government's actual purpose is to suppress speech based on its content or viewpoint, or to impose subjective editorial control over content or viewpoint.

2. The government interest that the law is intended to further relates to an aspect of the direct or emotive communicative impact of regulated expression, rather than the manner of its delivery.

3. The law, on its face, treats speakers differently due to the content or viewpoint of their message, or excludes from its coverage speech or conduct relating to different subject matters or viewpoints that pose similar threats to the government's asserted interests.

4. The actual or inevitable effect of the law is to prevent speakers espousing certain messages from effectively reaching their intended audience,

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such as by targeting a particular location or manner of expression that is closely tied to one subject matter or viewpoint.

5. The law lends itself to use for content- or viewpoint-discriminatory purposes, or there is a realistic possibility that official suppression is afoot.

Formal recognition by the Court that laws of this nature should be subject to strict scrutiny would bring much needed clarity to this area of law and would help to ensure that freedom of speech receives the robust protection that it deserves, while affording the government ample room to enact reasonable, narrowly tailored laws that address legitimate concerns.

Introduction

Although the distinctions between content-neutral, content-based, and viewpoint-based restrictions on speech remain a critically important aspect of First Amendment doctrine, the lines between these three categories remain quite unclear in key respects despite volumes of court decisions and scholarly commentary on the subject.¹ In many instances, opponents of a law that affects the exercise of free speech can plausibly characterize it as content- or viewpoint-based, relying upon certain Supreme court decisions, while supporters of the same law can plausibly characterize it as content- and viewpoint-neutral, relying upon other aspects of those same decisions, different decisions, or both.

For example, in various, and often conflicting, free speech decisions over the past several decades, the court has (1) declined to examine the government's motive, (2) held laws to be content-based despite the assertion of a neutral government purpose, and (3) stated that the government's purpose is

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the "principal inquiry."² Additionally, in some cases the law's likely or inevitable effect was considered to be important, while in others it was essentially ignored. The resulting confusion and uncertainty ultimately threatens the robust exercise of First Amendment rights by giving government actors unduly broad leeway to burden that exercise.³

This Article will analyze the law concerning the boundaries between content-based (including viewpoint-based) laws and content-neutral laws with respect to speech activities in public and limited forums. The Supreme Court's decisions in McCullen v. Coakley⁴ and Reed v. Town of Gilbert⁵ provided a degree of clarity on certain points, but they are also ample proof that the lines of demarcation are not firmly established in many respects.

The Court's shift toward emphasizing the government's asserted motive for enacting a law that restricts speech has, as Justice Brennan once feared, "set the Court on a road that will lead to the evisceration of First Amendment freedoms."⁶ The considerable narrowing of the class of laws considered to be content-based has also, by extension, narrowed the class of laws considered to be viewpoint-discriminatory; in numerous cases discussed herein, the majority held a law to be content-neutral, and therefore viewpoint-neutral, while concurring or dissenting Justices argued that the law was both content- and viewpoint-discriminatory.

This Article will suggest a formulation of the relevant test, drawn from various majority, concurring, and dissenting opinions issued over the past several decades, that would be appropriately protective of free speech while leaving ample room for narrowly tailored government regulations. In particular, this Article argues that the following five categories of laws are inherently suspect under the Free Speech Clause and should be treated as such:

1. The government's actual purpose is to suppress speech based on its content or viewpoint, or to impose subjective editorial control over content or viewpoint.

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2. The government interest that the law is intended to further relates to an aspect of the direct or emotive communicative impact of regulated expression, rather than the manner of its delivery.

3. The law, on its face, treats speakers differently due to the content or viewpoint of their message, or excludes from its coverage speech or conduct relating to different subject matter or viewpoints that pose similar threats to the government's asserted interests.

4. The actual or inevitable effect of the law is to prevent speakers espousing certain messages from effectively reaching their intended audience, such as by targeting a particular location or manner of expression that is closely tied to one subject matter or viewpoint.

5. The law lends itself to use for content- or viewpoint-discriminatory purposes, or there is a realistic possibility that official suppression is afoot.

As discussed herein, numerous Supreme Court opinions have explained why these five categories of laws should be characterized as content-or viewpoint-based, and subject to strict scrutiny. Formal recognition by the Court that these five categories of laws should be subject to strict scrutiny would bring much needed clarity to this area of law while affording the government ample room to enact reasonable, narrowly tailored laws that address legitimate concerns.

I. A Review of the Supreme Court's Content- and Viewpoint-Neutrality Jurisprudence Reveals Multiple Areas of Disagreement and Dispute

While the Supreme Court has consistently held that content- and viewpoint-based laws are highly suspect under the First Amendment, the formulation of the test for determining whether a law is actually content- or viewpoint-based has not been consistent. Rather, the most consistent aspect of this area of law is the presence of sharp division among the Justices concerning the nature and proper scope of the content- and viewpoint-neutrality tests. This section will review many of the leading cases that address content- and viewpoint-neutrality, detailing various aspects in which there is confusion or division among the Justices and also highlighting instances in which the Court failed to adequately protect the freedom of speech.

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A. Foundational Content-Neutrality Cases: O'Brien to Reed

Although nearly half a century elapsed between the Court's decisions in United States v. O'Brien⁷ and Reed v. Town of Gilbert,⁸ some key aspects of the areas of law that they addressed remain unsettled or in dispute. Since Ward v. Rock Against Racism⁹ has emerged as perhaps the most important case in this area, this section will be divided into three parts: pre-Ward cases, Ward, and post-Ward cases.

1. Content-Neutrality Cases Before Ward

The standards set forth in O'Brien for determining whether a law is content-neutral are arguably more protective of free expression than the language appearing in more recent cases. O'Brien burned his Selective Service registration certificate as a means of symbolically expressing his anti-war views.¹⁰ He was convicted under a law that prohibited the intentional destruction of registration certificates.

The Court unanimously upheld the law on its face and as applied, holding that it was a content-neutral regulation of conduct that only incidentally impacted expression.¹¹ The Court stated that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."¹² The Court set forth the following four-part test for the review of laws that only incidentally impact free expression:

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.¹³

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The Court's analysis focused primarily on the nature of the interest furthered by the law and the law's actual effects in practice, and the Court held that "both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative aspect of O'Brien's conduct."¹⁴ Concerning the interest furthered by the law, the Court held that preserving the efficient functioning of the Selective Service system was unrelated to the suppression of free speech.¹⁵...