Question One
What is the difference
between subject matter and viewpoint based regulations? In
particular, when would the lesser standard of review apply to subject
matter regulations particularly in the context of the public forum
doctrine?
Answer
The difference is that a subject-matter regulation bars all discussion
of a particular topic, no matter what view is expressed (political
speech, speech about health care reform, etc.) whereas a
viewpoint-based regulation only bars one or more viewpoints about a
particular subject matter (pro-Obama speech but not anti-Obama speech,
pro-choice speech but not pro-life speech). Regulations are
rarely enacted that are viewpoint-based, but when they are they are
always reviewed using the strict scrutiny standard and struck
down. By contrast, some subject-matter regulations may be
reviewed using intermediate rather than strict scrutiny. For
example, regulations of commercial advertising, even if they are
subject-matter based (single out advertising of a particular product or
service) are analyzed using the Central
Hudson test, a version of intermediate scrutiny. Another
example is under the public forum doctrine. If a place is a
non-forum (like the candidate debate in Forbes), restrictions on access
must be reasonable, but not based on viewpoint. That means that
subject matter regulations on access could be upheld under the
reasonableness standard. Similarly, a place could be a limited
public forum (available only as a forum for certain subject matters,
but not others) and those limits would be upheld as long as they were
reasonable and not based on viewpoint.
These are questions asked during the
2007 study period.
Question One
How do you distinguish between regulations on speech that are
content-based and regulations that are content-neutral?
Answer
Distinguishing between content-based and content-neutral regulations is
sometimes 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 their
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 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 of 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.
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.
Turner Broadcasting (page 202)
is the principal case we read where the Court struggled over whether to
characterize the regulation as content-based or content neutral.
In that case, the challenged regulation was not triggered by a cable
operator's decision to air particular programs. Therefore, the
regulation appeared to be content-neutral. On the other hand, the
regulation imposed the obligation to air the programming of certain
channels and thereby suggested the possibility the regulation was
motivated by a desire to favor particular content. The Court
considered this possibility and ultimately concluded the government was
not motivated by a desire to promote speech with a particular content,
but only to preserve broadcast television no matter what its
content. The Court also considered the impact of the regulation
on cable systems and whether it had the effect of displacing other
speech and concluded it didn't. You could therefore look at Turner as a case where the law
appeared content-neutral, created a strong presumption it would be
analyzed using intermediate scrutiny, but the cable operators argued
that the presumption should be overcome and the law treated as
content-based because of its motive and its impact. These
arguments were unsuccessful and the Court analyzed the law as
content-neutral, applying a form of intermediate scrutiny to analyze
its constitutionality.
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 (page
137) 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 to 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 appearance and reality.
Question Two
What is the difference between obscenity and indecency?
Answer
There are large differences between speech that is obscene and speech
that is indecent. Obscene speech receives no First Amendment
protection and can be regulated if the government can satisfy minimum
scrutiny under the Due Process Clause. That means distribution of
obscene materials can be made a crime as long as there is a rational
relationship between the means and the ends. By contrast,
indecent speech is protected by the First Amendment and some
regulations of indecency are subject to strict scrutiny (as in United States v. Playboy Entertainment
Group, Inc. - page 159 and Reno
v. ACLU - page 166 where the Court reviewed content-based
regulations of indecent speech using strict scrutiny) and some are
subject to intermediate scrutiny (as in FCC v. Pacifica Foundation -page
149). Indecency is not a category of speech that has been defined
by the Supreme Court and singled out for special treatment like
commercial speech instead it just falls into the general category of
fully protected expression and is only subject to less than strict
scrutiny if there is some special reason to do so like in the context
of the broadcast medium.
In terms of the differences between the two categories of speech
focusing on their content or how they are defined, obscenity is defined
in Miller v. California (page 146). Under that definition, to be
obscene, material must (1) be a work that the average person, applying
contemporary community standards would find, taken as a whole, appeals
to the prurient interest and (2) the work must depict or describe, in a
patently offensive way, sexual conduct specifically defined by the
applicable obscenity law, and (3) the work, taken as a whole, must lack
serious literary, artistic, political or scientific value.
Indecency is not a category of speech that the Supreme Court has
defined, but the current generic definition of indecency used by the
FCC is "language or material that, in context, depicts or describes, in
terms patently offensive as measured by contemporary community standard
for the broadcast medium, sexual or excretory activities or
organs." Difference between the two categories include: (1)
speech cannot be obscene if it has serious value, but speech can be
indecent even if it has serious value; (2) speech can only be obscene
if it appeals to the prurient interest (the interest in sexual
arousal), but speech can be indecent no matter what its appeal (for
instance if it uses offensive words for humorous or political effect);
(3) speech can only be obscene if it is specifically defined in an
applicable obscenity law, while statutes or regulations that single out
indecent speech rarely define it or if they do they use generic,
general definitions rather than specific ones; and (4) obscenity must
be based on the character of the work taken as a whole rather than
examining a part of the work while indecency can be judged by a part of
a work. All of these differences mean that the definition of
indecency is much broader than the definition of obscenity.