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.