While phrased in absolute terms, the free speech clause has been interpreted to require a greater level of justification for government regulation of the content of speech and a lesser degree of justification for speech regulations that apply without regard to the content of speech. When governments impose the latter form of speech regulations, they are called content-neutral regulations of speech. The essential distinction between content-based regulation of speech and content-neutral speech regulations is that the former regulates on the basis of what is said, whereas the latter regulates on the basis of either how, when, or where the speech is uttered, or is only an incidental restriction on speech that has as its purpose the regulation of some conduct that is not related to speech. Some facially content-neutral laws are treated as content based if their application hinges on what the speaker says (for example, a law against disturbing the peace is treated as content based when it is applied because of what the speaker says). Some content-based laws are treated as content neutral if their purpose is to address the ‘‘secondary effects’’ of that speech, effects that are not produced by what is said but are merely adventitious by-products of the regulated speech. Content-neutral regulations of speech can be subdivided into three main types: restrictions on the time, place, or manner of speech; restrictions on conduct that have only an incidental and unintended effect on expression that is part of the regulated conduct; and restrictions intended to control the ‘‘secondary effects’’ of regulated speech.
In general, governments may regulate the time, place, or manner of speech, so long as the restrictions on speech ‘‘are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information’’ Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). This rule was articulated as early in 1949, in Kovacs v. Cooper, 336 U.S. 77 (1949), in which the Supreme Court upheld a ban on ‘‘loud and raucous’’ sound trucks. In Ward v. Rock Against Racism, 491 U.S. 781 (1989), the Court clarified its requirement that content-neutral time, place, or manner regulations be ‘‘narrowly tailored to serve a significant governmental interest’’ by noting that such regulations ‘‘need not be the least restrictive or least intrusive means of doing so . . . . So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, [a] regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.’’ In recent years the Supreme Court has stressed the importance of leaving open ‘‘ample alternative channels of communication.’’ In Ladue v. Gilleo, 512 U.S. 43 (1994), for example, the Court struck down a municipal ordinance banning almost all signs displayed on or in residences. The majority noted that the city had ‘‘almost completely foreclosed a venerable means of communication that is both unique and important’’ and opined that the danger posed to free speech by bans of an entire medium of communication is that ‘‘such measures can suppress too much speech.’’
The line between content-based and content-neutral regulations was blurred in Hill v. Colorado, 530 U.S. 703 (2000), in which the Court upheld a ban on approaching a person in close proximity to a medical facility to ‘‘engage in oral protest, education, or counseling’’ without the other person’s consent. The majority thought the ban was content neutral because it applied to any such speech, not just abortion protests. The dissenters claimed that the ban was content based because it was triggered by what the speaker says.
Government regulation of conduct does not generally implicate the free speech guarantee, but because some conduct does communicate ideas, the Supreme Court has crafted a test to determine when it is permissible for governments to regulate conduct when such regulation also restricts the symbolic speech imbedded in the regulated conduct. In United States v. O’Brien, 391 U.S. 367 (1968), the Supreme Court upheld a ban on the knowing destruction or mutilation of a military draft registration certificate, as applied to David O’Brien, who publicly burned his draft card as part of a demonstration against the Vietnam War. The Court assumed that O’Brien’s action was sufficiently communicative to invoke the free speech clause but concluded that the government’s ban on destruction or mutilation of a draft card was valid because it was ‘‘within the constitutional power of the Government’’ (considered apart from the free speech issue); furthered ‘‘an important or substantial governmental interest’’ (facilitating the military draft); the governmental interest was ‘‘unrelated to the suppression of free expression;’’ and the ‘‘incidental restriction on [free speech was] no greater than is essential to the furtherance of [the governmental] interest.’’ Although O’Brien created the test for symbolic speech or conduct, the case was much criticized as an erroneous application of the principle, especially because there was evidence in the legislative record that the statute was enacted to punish this particularly inflammatory mode of protesting the Vietnam War.
The heightened level of scrutiny demanded by O’Brien only applies when the regulation impinges on ‘‘conduct with a significant expressive element’’ or ‘‘where a statute based on a nonexpressive activity has the inevitable effect of singling those out engaged in expressive activity’’ Arcara v. Cloud Books, 478 U.S. 697 (1986). In general, conduct ‘‘possesses sufficient communicative elements to bring the First Amendment into play’’ when the actor intends ‘‘to convey a particularized message’’ and there is a great likelihood ‘‘that the message would be understood by those who viewed it’’ Texas v. Johnson, 491 U.S. 397 (1989).
A series of flag-burning and flag desecration cases have cemented the principle that, under the O’Brien test, the government’s asserted interest must not only be real but unrelated to the suppression of ideas. In Spence v. Washington, 418 U.S. 405 (1974), and in Smith v. Goguen, 415 U.S. 566 (1974), the Court found that the government’s interest in promoting respect for the American flag was related to the suppression of ideas. In Spence the Court overturned a conviction for taping a peace sign to a flag, and in Smith the Court struck down a conviction for sewing a flag to the seat of one’s pants. This came to a head in Texas v. Johnson, in which the Court overturned Johnson’s conviction for ‘‘desecration of a venerated object,’’ conduct that consisted of burning the American flag. A year later, in United States v. Eichman, 496 U.S. 310 (1990), the Supreme Court also voided the federal Flag Protection Act of 1989. Because the flag is an unalloyed symbol of the nation, its use—whether it ranges from display to destruction—inevitably involves communication of some idea, be it respect or contempt for America. Thus, the Court saw the governmental interest in proscribing destruction of the flag to be inherently related to the suppression of the idea of contempt for America and the flag for which it stands. Of course, the principle applies more broadly than just to flag burning. In Schacht v. United States, 398 U.S. 58 (1970), the Supreme Court invalidated the application of a federal law forbidding the wearing of an American military uniform without authorization to an actor performing in a dramatic protest of the Vietnam War, because another federal law permitted the wearing of American military uniforms in theatrical productions so long as ‘‘the portrayal does not tend to discredit’’ the military. The interplay of the two statutes provided proof that the government’s interest in limiting the wearing of military uniforms in dramas was related to the suppression of ideas.
The flag-burning cases produced calls for a constitutional amendment to permit punishment of flag burners. Although some of those proposals have received the requisite majority in the House of Representatives, none have been approved by the Senate.
While many of the cases dealing with symbolic speech have involved the politically charged issue of flag desecration, the most recent applications have involved more prosaic and salacious matters. In each of Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) and City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), the Supreme Court upheld state laws banning public nudity, as applied to nude dancing. The Court conceded that there was some protected expression in nude dancing but thought that the government’s interest in prohibiting such conduct was sufficiently unrelated to the suppression of the erotic ideas inherent in nude dancing to warrant application of the O’Brien test. Moreover, because the ordinance at issue in Erie permitted dancers to perform wearing only ‘‘pasties’’ and G-strings, the inhibition on the expressive element of the dancers’ performance was as minimal as the required garments.
The third type of content-neutral regulations are those that address the so-called secondary effects doctrine. The essence of this doctrine is that contentbased regulations of speech that are intended to regulate conduct that is closely associated with the regulated speech but that is not produced by the content of the speech are treated as if they are content neutral, and thus valid if they are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. This is, of course, a legal fiction, but one that the Supreme Court has created to deal almost exclusively with the collateral effects of pornographic, but not obscene, speech. In Young v. American Mini Theatres, 427 U.S. 50 (1976), the Court upheld a Detroit zoning law that required purveyors of pornographic materials to disperse throughout the city. The purpose of the law was to ameliorate the problems of public drunkenness, drug dealing, theft, and other criminal behavior that is closely associated spatially with concentrations of smut houses, but which is not produced by the consumption of smut. The plurality opinion in Young made much of the fact that pornographic expression is of lesser value than other speech. This doctrine was extended in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), in which the Court upheld a municipal zoning ordinance that required movie theaters exhibiting pornographic films to locate in a limited portion of the community. The doctrine was extended even further in City of Erie v. Pap’s A.M., in which the Court applied the secondary effects doctrine to conclude that Erie’s substantial governmental interest in prohibiting nude dancing was to alleviate the secondary effects of such tawdry expression and that this interest was unrelated to the suppression of ideas.
Not every effect of regulated speech is a secondary effect. When the behavior that the government seeks to control by regulating speech is the natural, foreseeable reaction of listeners’ reaction to the speech, such effects are not treated as secondary effects. The District of Columbia enacted a law barring the display within 500 feet of an embassy any sign that might bring the foreign government into ‘‘public odium [or] disrepute.’’ D. C. defended the law as intended to address the secondary effects of demonstrations against foreign governments: an increased risk of public disorder and crime. The Supreme Court rejected that argument in Boos v. Barry, 485 U.S. 312 (1988): ‘‘Listeners’ reactions to speech are [not] ‘secondary effects.’’’ Because the law focused ‘‘on the direct impact of speech on its audience,’’ the law was regarded as content based and thus subject to the strict scrutiny test in free speech cases.
Content-neutral regulations are subject to a lesser degree of scrutiny than content-based regulations, because there seems to be less danger that the government is attempting to skew the nature of public discourse. Moreover, content-neutral regulations are far more likely to have some plausible noncensorial reason for their enactment. But because content-neutral regulations have the potential to foreclose all speech, or all of a given type of speech, by drawing the scope of the regulation broadly the Supreme Court has insisted on the intermediate level of scrutiny embodied by the combination of the time, place, or manner and the O’Brien tests.
References and Further Reading
Cases and Statutes Cited
See also Abortion Protest Cases; Anti-Abortion Protest and Freedom of Speech, City of Erie v. Pap’s A.M., 529 U.S. 277 (2000); Content-Based Regulation of Speech, Draft Card Burning; Flag Burning; Freedom of Speech and Press: Nineteenth Century; Freedom of Speech: Modern Period (1917–Present); Intermediate Scrutiny Test in Free Speech Cases; O’Brien Content-Neutral Free Speech Test; O’Brien Formula; Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Secondary Effects Doctrine; Speech versus Conduct Distinction; Symbolic Speech; Theories of Free Speech Protection; Two- Tiered Theory of Free Speech; United States v. O’Brien, 391 U.S. 367 (1968); Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976)