Secondary Effects Doctrine

The secondary effects doctrine is an important principle in current First Amendment jurisprudence. A court applies the doctrine if it finds that the regulation of speech is aimed at the ‘‘secondary effects’’ of the speech and not at the content of the speech itself. Under the doctrine, a court may treat a seemingly content-based speech regulation, which normally is entitled to strict scrutiny, as a content-neutral regulation, and thus apply the less rigorous intermediate scrutiny. Because content-based regulations are rarely upheld under strict scrutiny and content-neutral regulations are much easier to sustain, the application of the secondary effects doctrine may determine whether a law is constitutional.

The Supreme Court laid the foundation for the secondary effects doctrine in two cases upholding restrictive zoning of adult entertainment. In Young v. American Mini-Theatres, a plurality of the Court found that a zoning law that prevented adult theatres from operating within 1,000 feet of any each other or within 500 feet of any residential area was passed to prevent a secondary effect of the speech—avoiding the crime associated with adult entertainment—and not to prevent the dissemination of offensive speech. In City of Renton v. Playtime Theatres, Inc., a majority of the Court embraced the secondary effects doctrine, finding that an ordinance that prohibited adult theatres from being located within 1,000 feet of any residential zone, church or park, or within one mile of any school was not aimed at the content of the films shown at adult motion picture theatres but at the secondary effects of such theatres on the surrounding communities. Thus, the test applied to the zoning regulation was the traditional intermediate scrutiny test: Does the ordinance serve a substantial governmental interest and allow for reasonable alternate avenues of communication?

The secondary effects doctrine has been criticized as being unprincipled and unwise. If the application of a law depends on its content—which it clearly did in Renton and Young—why should it be treated as content neutral? Moreover, the notion of secondary effects could potentially apply to all speech regulation: the government could always point to some secondary effect of the speech and thus claim that they had no motive to suppress the content of the speech.

Some critics took solace in the fact that the Court seemed to apply the doctrine only to low value, or sexually explicit speech. Since Renton, however, the Court has indicated a willingness to expand the doctrine beyond the area of zoning and adult entertainment. For example, in Boos v. Barry, the Supreme Court considered whether a District of Columbia law that prohibited the display of signs criticizing foreign governments within 500 feet of their respective embassies violated the First Amendment. The government argued that the ordinance was not based on the content of the speech but rather to protect our international law obligations by preventing speech that offends the dignity of foreign diplomats. Although the Court struck down the law, it accepted the possible application of the secondary effects doctrine even applied to political speech. The emotive impact of the speech on the audience, however, was not the type of secondary effect referred to in Renton. The Court has since applied the secondary effects doctrine to nude dancing and to hate speech regulations.

MARCY STRAUSS