This is Part Two of a three part review by Professor Leora Harpaz of the material covered in my First Amendment Rights course during the Fall, 2012 semester.

First Amendment Rights Review - Part Two

II. Form of the Regulation

In addition to focusing on the content of the speech being regulated, First Amendment analysis also focuses on the form of the regulation. Certain regulatory methods are disfavored under the First Amendment (such as prior restraints) while others are favored (such as reasonable time, place and manner regulations). Therefore, in addition to analyzing a First Amendment restriction by characterizing the content of the speech it regulates, it is also necessary to focus on the form of the regulation. The form may sometimes control the outcome. For example, even if the speech regulated is fully protected expression such as political speech, the speech restriction may be analyzed as a reasonable time, place or manner regulation and found to be constitutional through the application of the intermediate scrutiny standard of review that governs reasonable time, place and manner restrictions. By contrast, even if the speech is less than fully protected, the regulation of the speech may be struck down if it employs a standardless prior restraint scheme.

A) content-based vs. content-neutral regulations - the Court has shown great hostility to content-based regulations, usually subjecting them to strict scrutiny review and often striking them down. Justice Scalia carried this hostility so far in R.A.V. that he even struck down a content-based regulation of unprotected speech. There are two types of content-based regulations, regulations based on the viewpoint of the speech and regulations based on the subject matter of the speech. The Court has shown even more hostility toward viewpoint discrimination than toward subject matter discrimination.

In general, but not always, the Court uses strict scrutiny to analyze content-based regulations. One example of this is in Burson v. Freeman in which the Court upheld a Tennessee law that banned speech that was related to an election (soliciting votes or displaying or distributing campaign literature) from occurring within 100 feet of a polling place on election day. Because the statute regulated political speech in a traditional public forum based on its content, the Court required that the state "show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Under that test, the state effort to create a "campaign-free zone" was justified by the compelling government interest in protecting voters from intimidation at the polls in order to protect both the right of voters to vote freely and the integrity of the electoral process. In addition to satisfying the compelling interest prong of strict scrutiny analysis, the Court also found the means to be sufficiently narrowly tailored to satisfy strict scrutiny. It characterized the law as a "minor geographic limitation." The Court found that a lesser boundary in the form of a 25 foot ban was only different in degree and was not, therefore, a less restrictive alternative since the extra 75 feet would only take approximately 15 seconds to walk. While upholding the law, the Court was careful to point out that it was the rare case in which a law survives strict scrutiny and that Burson v. Freeman was such a rare case.

While the Court typically uses strict scrutiny to analyze subject matter restrictions, there are some exceptions to this rule. A subject matter restriction may be analyzed under a less demanding standard than strict scrutiny if: (1) it is a subject matter restriction that applies to a lesser protected variety of speech such as commercial speech (which would be analyzed under the Central Hudson test); (2) it is a subject matter restriction in the form of a zoning regulation that regulates sexually explicit nonobscense speech and it limits the locations where such speech can be seen, but does not outlaw the speech entirely, and it is directed at preventing the secondary effects created by such speech and not the primary effects of such speech (in which case the Court analyzes it as a time, place and manner regulation and subjects it to intermediate scrutiny review as in Renton); (3) it is a subject matter restriction that regulates speech in a lesser protected medium of communication, such as broadcast radio and television, or in an environment, such as a school or a prison, where First Amendment rights are reduced; (4) it is a reasonable restriction on access to a nonpublic forum (see discussion of public forum doctrine in Part Three of the Review); and (5) it is a content-based limitation used to define the limits of a limited designated public forum and is reasonable in light of the purpose of the forum (see discussion of public forum doctrine in Part Three of the Review).

The Court almost always uses strict scrutiny to analyze restrictions based on viewpoint and the Court has never upheld a viewpoint restriction when it applies the strict scrutiny standard. In most circumstances it is almost impossible to imagine a legitimate reason for viewpoint discrimination let alone a compelling one (the one exception may be in the public school context where a public school may sometimes be able to discipline a student for the viewpoint expressed in the student's speech such as if the speech advocates taking drugs). In some situations, it may be difficult to distinguish between content-based, but viewpoint neutral restrictions, and viewpoint-based restrictions. The government in defending the restriction will argue it is not based on viewpoint, but only on subject matter, and the challenger, in attacking the restriction, will argue that it is based on viewpoint. The constitutional outcome may depend on which characterization is adopted by the Court.

Distinguishing between content-based and content-neutral regulations can also be complicated. That's partly because it's up to a court to decide whether a regulation of speech is going to be treated as content-based or content-neutral rather than it happening automatically. The way to look at it is to ask yourself whether or not the law identifies who is regulated by a restriction on speech based on the content (the ideas or views expressed) of the speech. If the law only applies if the speaker engages in speech with a particular content, like campaign speech or profanity, there is at least a strong presumption that it will be treated as content-based. By contrast, if the law applies to speakers based on more general criteria and not based on the content of the speaker's message, like all persons who post a sign or want to hold a parade, there is at least a strong presumption it will be treated as content-neutral. I say that this initial inquiry creates a strong presumption rather than a final determination because a court can also look at other factors in making a final determination as to whether a law is content-based or content-neutral. This allows a speaker to argue that a law that appears to be content-neutral should be treated as content-based, thereby hoping to get the benefit of a stricter standard of review, and the government to argue that a law that appears to be content-based should be treated as content-neutral, thereby hoping to get the benefit of a less strict standard of review.

One factor, in addition to whether the law singles out speech based on its content or not, that courts often look at in deciding whether the law will be analyzed as content-based or content-neutral is the motive of the government for enacting the law. If the law singles out speech based on content, but it is clear the government's motive for the regulation is unrelated to the impact of the content of the speech on the audience exposed to the speech, the presumption could be overcome and the law might be treated as content-neutral. This is, in effect, the approach taken by the Court in Renton. Similarly, if the law regulates based on an aspect of the speech other than its content, but it is clear the government's motive for the regulation is related to the impact of the content of the speech on the audience exposed to the speech, the presumption could be overcome and the law might be treated as content-based. For example, if a law singled out speech by Republicans and excluded it, the law is focused on the identity of the speaker rather than the content of the speech, but a court would probably conclude the law is content-based because it is motivated by a desire to suppress speech that contains content usually associated with the Republican Party. Another factor sometimes considered is the impact of the law on those it regulates. If the law appears to be content-neutral, but it disproportionately impacts different speakers based on the content of their speech, the law might be treated as content-based rather than content-neutral.

Most of the time when a law singles out speech based on its content, it will be treated as content-based because the motive for the law is that the government does not want the audience for the speech to be exposed to speech containing that content. For example, in Burson v. Freeman when the law banned campaign speech from in front of polling places on election day, the law singled out speech related to the election, allowing other kinds of speech to take place in that location. The reason for the ban was the government's view that it was harmful for voters to be exposed to speech about the election in such close proximity to a polling place. Therefore, the law was both focused on content in what speech it regulated and was also motivated by a desire to suppress speech with that content, making it content-based in both appearance and reality.

(B) symbolic expression (or expressive conduct or symbolic speech) - conduct intending to convey a message, although the Court will not recognize as speech a limitless range of conduct. To be symbolic speech under the Spence test, conduct must (1) be intended to communicate a message (although the message can be a general one and not a specific one: "a narrow, succinctly articulable message is not a condition of constitutional protection") and (2) be likely, in the circumstances, to be understood by its intended audience. The specific language from Spence v. Washington is as follows: "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."

While you might think of symbolic expression as a category of speech rather than a form of regulation, and it is to a large extent, it is considered in this section for two reasons. One is that the content-based/content-neutral distinction (described above) is of critical importance in reviewing regulations of symbolic speech. When the government's purpose in regulating the symbolic speech is aimed at the conduct at issue independent of any communicative message, the Court treats a regulation of this type as meriting more deferential review because the regulation is not aimed at the communicative aspects of the conduct and thereby applies intermediate scrutiny rather than strict scrutiny (see description of the O'Brien test below). A second reason is that symbolic speech can be used to convey a wide array of messages including political messages and commercial messages. In that sense, it is not a category of speech distinguishable by its content, but is instead a manner of conveying a wide variety of messages.

The Court uses the O'Brien test to analyze regulations of this kind of speech, at least if symbolic expression is utilized to convey a political message or any other fully protected message. Under this test, the regulation is constitutional if (1) it furthers an important or substantial government purpose, (2) the government purpose is unrelated to the suppression of expression and (3) the restriction is narrowly tailored to accomplish the substantial purpose (while the test actually says that the restriction on expression must be no greater than necessary, this requirement has been interpreted to require a narrowly tailored means, but not the least restrictive alternative).

The O'Brien test uses a two-track approach. If the regulation of symbolic speech being challenged restricts symbolic speech for reasons other than its content (because of its non-speech or conduct component), it is reviewed under the intermediate scrutiny standard in O'Brien. However, if the government purpose is related to the suppression of expression, the government must satisfy strict scrutiny review. This is what occurred in Texas v. Johnson, the flag burning case, where the Court decided that the government's purpose was to suppress flag burning when used to convey anti-government messages. Under the strict scrutiny test that was then applied, the Court decided that the government could not satisfy strict scrutiny review. By contrast, in Clark v. Community for Creative Non-Violence, the ban on camping (and therefore sleeping) was not aimed at suppressing a particular message, but was instead aimed at protectivng the physical condition of the park. In this circumstance, the Court applied the intermediate scrutiny test in O'Brien and found that the regulation satisfied that standard. Because prong two of the O'Brien test ("the government purpose is unrelated to the suppression of expression") is used to decide whether the government regulation needs to satisfy intermediate scrutiny (as in O'Brien) or instead strict scrutiny (as in Texas v. Johnson), it is often described as performing a switching function since it can switch the standard of review that is applied. 

(C) overbreadth - a statute that has both legitimate (permissible under the First Amendment) and illegitimate (impermissible under the First Amendment) applications can be challenged on the ground that the law is substantially overbroad. An overbreadth challenge is one form of facial attack on a statute, although not the only kind of facial challenge (e.g., arguing that the law is an impermissible content-based regulation of speech). An overbreadth challenge allows the challenger (even though the challenger's own speech could be regulated by a narrower statute without violating the First Amendment) to raise the First Amendment rights of hypothetical third parties not currently before the court (persons whose speech the statute would also apply to and whose speech could not be regulated by a narrower statute without violating the First Amendment). If successful, an overbreadth argument results in the statute being struck down in its entirety, and for this reason the Court describes striking down a statute on overbreadth grounds as "strong medicine."

To show that a statute is unconstitutionally overbroad, it is necessary to show that it is substantially overbroad and not merely slightly overbroad. That showing requires a comparison of the legitimate reach of the statute (the permissible applications of the statute) with the illegitimate reach of the statute (the impermissible applications of the statute). In that comparison, the challenger will attempt to convince the court that the impermissible applications are real and substantial when judged in comparison to the statute’s legitimate reach. By contrast, the government will attempt to convince the court that a very small number of possible applications are impermissible. If the statute has only a small number of illegitimate applications, they can each be challenged in as-applied challenges.

Identifying a potential application as impermissible or permissible requires an analysis of whether the law being challenged can be applied to that situation consistent with the First Amendment. This means using all of the available techniques for First Amendment analysis (whether the speech at issue falls within an unprotected category, whether, if protected, the law regulates the speech in a content-neutral way justifying the application of intermediate scrutiny review, whether, applying the appropriate standard of review, the government can meet its burden to justify the regulation based on an assessment of the objectives of the law and the degree of fit between means and ends, etc.). In assessing the degree of overbreadth, courts do not simply identify all of the situations in which the statute applies, classify each one as legitimate or illegitimate and decide whether the number of illegitimate applications is substantial. Instead, courts factor in the extent to which the law is likely to be applied to each situation. As the Court stated in Ferber, “we seriously doubt [that] these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statutes reach.” Moreover, courts often can resolve an overbreadth challenge without resolving gray area situations where it is uncertain whether the application of the law is legitimate under the First Amendment. This is because one of two things is true: (1) there are a sufficient number of situations where it is clear that the application of the law is legitimate so that a court can conclude that the law is not substantially overbroad without resolving the gray area situations or (2) there are a sufficient number of situations where it is clear that the application of the law is illegitimate so that a court can conclude that the law is substantially overbroad without resolving the gray area situations.

(D) vagueness (parallel to overbreadth) - a due process concept that has special force in the First Amendment area. The concept describes a statute that is so unclear that a reasonable person would not be on notice as to whether his or her proposed activities would be barred by the statute. Vague statutes are particularly disfavored when they apply to expression because they have a chilling effect on speech due to uncertainty over the reach of the statute. A statute can be both vague and overbroad, but an overbroad statute can be very clear and a narrow statute can be very vague. A statute that regulates speech can be vague on its face or vague as applied. In cases of facial vagueness, a challenger can assert the substantial vagueness of a statute and, if the Court agrees that the statute is substantially vague, the statute will be struck down in its entirety. However, in contrast to overbreadth, the Court has not been receptive to accepting a facial vagueness argument if the statute is clear as applied to the challenger's speech. Therefore, the challenger must demonstrate that the statute is vague as to the challenger's speech as well as to the speech of hypothetical third parties in order to argue that the statute should be struck down on its face. As in the case of overbreadth, a vague statute can be cured by a clarifying construction of the statute. Identifying unconstitutional vagueness is difficult because some degree of ambiguity is likely in many if not most statutes because of the imprecision of words and their susceptibity to multiple meanings. In the case of statutes that regulate speech, however, substantial vagueness most often has been found if the statute utilizes a standard for the speech it regulates that has no objective meaning, but depends on a subjective evaluation of the speech at issue. Examples of such subjective language include speech regulated because it is annoying, opprobrious, shameful, disgraceful, disreputable, controversial, and contemptuous.

(E) reasonable time, place and manner regulations - such restrictions are constitutional if they (1) are not content based; (2) are narrowly tailored; (3) serve a significant governmental interest; and (4) leave open ample alternative avenues for expression (sometimes referred to as channels for communication). This analysis will even justify some bans on a format - like focused picketing in Frisby v. Schultz - but not others where the format is particularly important (uniquely valuable) like lawn signs in Ladue, leafletting in Schneider, or door-to-door solicitation in Watchtower Bible & Tract Society v. Stratton. In the case of particularly valuable formats of communication, the Court will conclude that the law does not leave open ample alternative avenues for expression because there is no adequate substitute for the banned format. Applications of the time, place or manner test can be seen in many cases. A few of the many cases in which this analysis is used are Heffron v. ISKCON, Clark v. Community for Creative Non-Violence, Ward v. Rock Against Racism, and Frisby v. Schultz. In all of these cases, the regulations at issue were upheld.

(F) prior restraints on speech - a regulatory scheme that employs a prior restraint requires government permission by the issuance of a permit or license before a speaker is allowed to speak as contrasted with a law that makes it a crime to engage in particular kinds of expression and punishes speakers only after they have violated the law (subsequent punishment as opposed to a prior restraint). Three aspects of a prior restraint scheme can raise constitutional problems: (1) the nature of the discretion that can be exercised by the government official charged with issuing the permits, (2) the procedural protections available to protect a speaker whose request for a permit is turned down, and (3) the justification offered by the government for the use of a prior restraint scheme rather than some less restrictive alternative such as subsequent punishment. In the case of a prior restraint scheme, the Court will not tolerate a standardless permit scheme which allows unbridled administrative discretion and which creates a risk of selective enforcement. If the scheme narrowly confines the discretion of the government decisionmaker in appropriate ways (and is not impermissibly based on content), the court may uphold the scheme if it is a narrowly tailored means in the circumstances in which it is being used. For example, a permit scheme can be constitutional if used to regulate parades because of the need for advance notice to cordon off streets for the parade and provide police protection. However, even permit schemes where the government official's discretion is limited will be struck down if the permit requirement unnecessarily inhibits too much important speech by requiring that the speech be delayed until a permit is obtained without a sufficiently important government justification. An example of such a case is Watchtower Bible & Tract Society v. Stratton where the Court refused to subject all door-to-door canvassing and solicitation to a permit requirement. In some circumstances, such as a prior restraint directed at speech based on its content, the Court will also require that the Freedman procedural protections be complied with as well. One example of such a case is Southeastern Promotions, Ltd. v. Conrad where the Court struck down the system used to grant permission to use a municipal auditorium because it was based on content and lacked adequate procedural protections. In addition to prior restraints in the form of permit schemes, judicially crafted injunctions against speech are also a form of prior restraint. When the government seeks such an injunction to prevent the publication of speech based on its content, there is a strong presumption against the constitutionality of the injunction. Their use will be upheld only if serious national security interests are threatened by the publication of the material sought to be enjoined (Near v. Minnesota).