When is a law content-based versus content-neutral?
SCT doctrine (Turner)
Laws are content-based if they are:
1. Facially content-based – SM or VP-based
e.g., Brown, Mosley
2. Facially content-neutral but have a content-based justification
e.g., breach of peace statutes when used to punish speaker due to
audience response to ideas (Cantwell)
o Law allows punishment based on “communicative impact” of
speech even if law seems neutral
Laws are content-neutral if they are:
1. Facially content-neutral, AND
2. Have a justification unrelated to the speaker’s message
e.g., law regulating signs on public property in order to preserve
aesthetic interests or traffic safety
Turner Broad. v. FCC – speaker based restrictions
Must-carry provisions of Cable Act require cable operators to set-aside a
portion of their channels for local broadcast stations.
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Congressional Findings
o Government interest in promoting diversity of views thru multiple
technology media.
o A primary objective/benefit of TV broadcasting is local origin of
programming.
o Broadcast TV stations are an important source of local news and public
affairs programming.
o Physical characteristics of cable systems are in danger of concentrating
economic power in cable systems who have economic incentives to
prefer their programming over local broadcasters
o viability of broadcast and access to free programming is threatened
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SCT:
o
Act is a speaker-based restriction
o
Speaker-based restrictions are not inherently content-based – must
judge such restrictions individually as to whether they unreasonably
restrict content
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How do the Turner opinions resolve the issue of whether the Act is
CB or CN? Who has the better argument – majority or dissent?
Renton v. Playtime Theatres, Inc.
◦ Local ordinance prohibits adult theaters showing films with “specified
sexual activities” from locating within 1,000 feet of residential zones,
churches, . . .
On its face, is the law content-based or content-neutral?
How does Justice Rehnquist classify the ordinance?
reasoning?
What is his
Is his description consistent with the general understanding of contentneutral laws?
“Secondary effects” reasoning and content-neutrality
– the possible import of Renton:
Hypothetical: City enacts an ordinance banning all public discussions
of the President’s AUMF against ISIS (subject-matter ban) because
such displays tend to attract large numbers of protestors, which in
turn bring problems related to crime, litter, etc.
◦ Under Renton, this law is content-neutral because it is based on
secondary effects of speech (violence and neighborhood
deterioration).
◦ Are there problems with this analysis? What does it do to notions
of “content-neutrality”?
Comparing evidentiary requirements & tailoring in
Renton & Brown
How carefully does the Court examine the evidence supporting the
law? Compare to Brown.
How carefully does the Renton Court scrutinize the application of the
rest of intermediate scrutiny – in this case the ample alternatives
prong of the test?
◦ Compare to Brown. What did the majority say there with respect
to how narrowly tailored the law needed to be in order to survive?