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When is a law content-based versus content-neutral? The SCT doctrine ( Turner )

When is a law content-based versus content-neutral? The SCT doctrine ( Turner ). Laws are content-based if they are: Facially content-based Johnson, Mosley Facially content-neutral but have a content-based justification

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When is a law content-based versus content-neutral? The SCT doctrine ( Turner )

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  1. When is a law content-based versus content-neutral? The SCT doctrine (Turner) • Laws are content-based if they are: • Facially content-based Johnson, Mosley • Facially content-neutral but have a content-based justification e.g., breach of peace statutes when used to punish speaker due to audience response to ideas (Cantwell, Terminiello) • Laws are content-neutral if they are: • Facially content-neutral • Have a justification unrelated to the speaker’s message e.g., law regulating signs on public property in order to preserve aesthetic interests of city or for traffic safety

  2. Turner Broadcasting v. FCC • Must-carry provisions of Cable Act require cable providers to provide a portion of their channels to local broadcasters. • Act is a speaker-based restriction (i.e., a law that applies only to certain identifiable categories of speakers) • Section 2 of Cable Act – Findings • Government has an interest in promoting a diversity of views provided through multiple technology media. • A primary objective and benefit of our Nation’s system of regulation of television broadcasting is the local origination of programming. • Broadcast television stations continue to be an important source of local news and public affairs programming. • SCT: Speaker-based restrictions are not inherently content-based – must judge such restrictions individually as to whether they restrict content • Who (majority or dissent) has the better argument on whether the Act is CB or CN?

  3. Renton v. Playtime Theatres, Inc. • Local ordinance prohibits adult theaters showing films with “specified sexual activities” from locating within 1,000 feet of residential zones, churches, . . . • On its face, is the law content-based or content-neutral? • How does Justice Rehnquist classify the ordinance? What is his reasoning? Is it consistent with Turner’s description of content-neutral laws?

  4. “Secondary effects” reasoning and content-neutrality: • Hypothetical: City enacts a law prohibiting display of Iraqi war-related films in theaters because of violence and neighborhood deterioration associated with protests. • According to Renton, this law is content-neutral because it is based on secondary effects of speech (violence and neighborhood deterioration). • Are there problems with this analysis? • How carefully does the Court examine the evidence supporting the law or the law’s tailoring under this version of intermediate scrutiny?

  5. Foundational Cases – Speaker access to public property & content-neutral regulations • Hague v. CIO (1939) - City ordinances barred (1) leasing a public hall without permit from Police Chief, & (2) distribution of leaflets, etc. on public streets • In Commonwealth v. Davis, SCT intimated that gov’t could control its property just like a private property owner. • Hague response to Davis: Streets & parks “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” • But “the privilege” to use streets and parks for communicating ideas “may be regulated in the interest of all.” Speech must be “subordinated” to comfort & convenience of others as well as peace and good order. • OTOH speech cannot “in the guise of regulation be abridged.”

  6. Questions re Hague • Why is access to public land so important to free expression? • Does Hague completely reject Davis? • What facts/factors affected the Hague Court’s resolution of the case?

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