Content-Based v. Content-Neutral Speech Regulations Flashcards
Determining Content-Based v. Content-Neutral Speech (speech that is not related to the words but rather to the process of the communication) - US v. O’Brien
O’Brien Element Test - To determine if a regulation is content-neutral. If conduct contains both speech and non-speech elements, an important or substantial governmental interest in regulating the non-speech element may justify incidental limitations on the protected speech if:
1) the regulation is within the constitutional power of the government; and
2) the regulation furthers an important or substantial governmental interest; and
3) the governmental interest is unrelated to the suppression of free expression; and
4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Rationale for why O’Brien’s restriction on Speech was okay:
Efficiency argument for preventing the burning draft cards.
Pettys’ O’Brien Simplification
To determine whether a government regulation is sufficiently justified, we ask
(1) if the governmental interest is unrelated to the suppression of free expression.
If No (i.e., it is related to the suppression of free expression), the law is content-based and we have even bigger problems and we will ask even tougher questions, studied later.
If Yes (i.e., it is unrelated to the suppression of free expression), ask
(2) if it furthers an important or substantial governmental interest and
(3) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Content – based Test under Strict Scrutiny
Test – We ask if the governmental interest is related to the suppression of free expression.
If it is, then you get Strict Scrutiny for engaging in Content-based speech regulation.
Content – neutral Test under Intermediate Scrutiny
Ends-Means Test –
Ends:
1)If it furthers an important or substantial (or important) governmental interest; and
2) if the governmental interest is unrelated to the suppression of free expression. I.e., is the government responding to speech.
If the speech reg does not respond to speech then it is not content-based, and the analysis can continue to the Means Section.
Means:
1) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. I.e., does the means have a substantial relationship with the ends sought.
Note: Content neutral laws can be enforced in content based ways such that strict scrutiny becomes applicable.
Regulating Methods of Speech - Ward v. Rock & Texas v. Johnson
Ward - Regulating the methods of speech is content neutral because speech itself is irrelevant, it’s the method of speech that is at issue. Time, place, and manner restrictions.
But See
Texas - When the government responded to flag burning because of the content of the speech (regardless of the government’s response resulting from their own opinion, or other’s opinions) it was a content-based regulation.
Most speech is protected because of the Rationales that –
Autonomy – people are entitled to say what they want to say.
Market place of ideas – needed for democracy
Government competency – lacking.
Overlap of Content-Based Regulations and Other Crimes - Arcara v. Cloud Books, Inc.
First amendment analysis applies only when the government is trying to regulate speech. Therefore, Incidental regulation of speech is okay.
Only when the regulation has the inevitable effect of targeting speech then it implicates first amendment issues.
Regulation of Proscribable Speech in a Content-Based way- R.A.V. v. St. Paul
Stands for the proposition that a State cannot take a content-based approach to subcategories of wholly proscribable speech (underinclusive). Any attempt at a regulation that makes content-based distinctions within categories of proscribable speech falls under strict scrutiny and it will almost always fail narrow tailoring since all fighting words could be banned instead of some. Ban all the trash, not just some.
Facts: RAV banned symbols likely to provoke anger, alarm, or resentment on racial basis. Court says could have banned all fighting words and that would be more narrowly tailored.
3 Exceptions (where the gov can make content-based distinctions among trash without SS):
1) HITTING THE CORE OF THE PROSCRIBABLE PURPOSE by banning the most LIKELY/HIGHLY PROBABLE problem = When the basis of the regulation consists of the core reason for why proscribable speech is proscribable. I.e., a State might choose to prohibit only that obscenity which is the most patently offensive in its prurience – for example, that which involves the most lascivious displays of sexual activity.
2) CORRELATION w/ SECONDARY EFFECTS = The speech is associated with a secondary effect, so that the regulation is justified without reference to the content of the speech. I.e., permitting all obscenity but those involving minors. In this case what we want to protect is a certain class, minors.
3) RESIDUAL CATCHALL = Any other situation where the reason the government is getting involved but the suppression is not about ideas by the government. The blue-eyed pornstar was the example from the case.
RAV bans underinclusive bans on subcategories of proscribable speech, but what about enforcement?
Pettys thinks it would be a problem if the gov selectively enforced on only certain subcategories of proscribable speech for content-based purposes. Pretextual.
Why do cases tend to raise issues of non-verbal conduct at the same time as content-based/content-neutral issues?
Because often the gov will claim that certain conduct is problematic and the actor will say “but I’m trying to speak” and the gov says “I don’t care about your speech, just your conduct,” and the actor will say “no, what you’re really doing under the surface is trying to crack down on my speech because of what I’m saying”.
In other words, the gov will argue that they’re regulating non-verbal conduct in a content-neutral way whereas the plaintiff will argue they are cracking down on his non-verbal speech because of its content (i.e. content-based).
The issue is pretext. Is the gov getting involved to single out some kind of content or viewpoint for disadvantageous treatment under a pretext?
