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Some Issues re Intermediate Scrutiny of Content-Neutral Regulations • Early SCT used a balancing test (Schneider/Martin) – but it was pretty careful scrutiny • Modern test builds on that balancing - Law must be narrowly drawn to meet important state interest and leave open ample alternatives of communication) • But applying this test consistently can be hard to do: Often very good arguments on both sides as to whether the law is narrowly drawn or whether alternatives are good enough. • Especially true after Ward v RAR - SCT makes clear “narrowly tailored” prong does not require gov’t to look for least restrictive alternative. • Law is narrowly tailored as long as gov’t can show its interest would be achieved less effectively w/out law.
Ladue v. Gilleo • Ladue ordinance prohibited all signs except those that fell w/in 10 exemptions. The ordinance meant that Gilleo couldn’t have political signs on her property. City’s reasons – aesthetics. • Is the ordinance content-based or content-neutral? What does SCT say? • Why does the Court strike the ordinance down? • Does it apply intermediate scrutiny to do so?
Frisby v. Schultz • Brookfield ordinance bans “targeted picketing” on or before a single residence – i.e. picketing aimed at single residence • State’s interest in regulating targeted picketing was protection of residential privacy. • What does SCT mean when it says that home occupants aren’t required to welcome unwanted speech into the home? Does it equate privacy with freedom from loud noises or unwanted interruptions? • How is the protestors’ speech unwanted in the home?
Frisby v. Schultz • Why does the majority think the law is narrowly tailored? Why does the dissent think it isn’t? • What other means do picketers have to communicate their message? Are they satisfactory?
A Frisby hypo: Two neighbors (A&B) argue about A’s dogs, who often run free in the neighborhood. B constantly calls Animal Control. A now has to keep his dogs confined. To show his displeasure at B, A has painted the entire side of his house facing B’s house w/ a mural celebrating the canine species. A & B’s houses sit on small lots 20 feet apart. B cannot avoid seeing A’s mural from his living/dining room windows. Their town has a targeted protest law like that in Frisby. If B sues A to have the sign removed because it violates the statute, what free speech claims? does A have? What claims can B make to counter? Who has the better argument?
Madsen v. Women’s Health Center, Inc. – extending Frisby to public places? • Injunction: • Created 36-foot buffer zone around clinic entrances and driveways. • Restrained “singing, chanting, whistling, shouting, yelling, . . . or other images observable to or within earshot of the patients” in the clinic during business hours. • Restrained anyone from physically approaching another person entering the clinic unless that person indicated a desire to be approached – restraint w/in 300 foot bubble zone around the clinic. • Created a 300-foot buffer zone around the residences of clinic staff. • SCT: Injunction was content-neutral. Although it was speaker-based, it regulated protestors because of conduct and not their message. • Applying a heightened form of intermediate scrutiny, it upheld and struck down some portions of the injunction
Madsen, the privacy interest and tailoring issues • If Madsen recognizes a privacy interest in public space, does it have the same parameters as Frisby? • Why does SCT recognize state’s interest in protecting patients from noisy cacophony but not images observable while in clinics? • Why is SCT unwilling to uphold the “no approach” zone? • Why does the Court uphold the 36 foot buffer zone around the clinic but not the 300 foot zone around staff residences? • This is all about the tailoring aspect of intermediate scrutiny • Clinic – 36-foot zone to protect “access/ingress” is fine • Residences – 300-foot zone to protect “residential privacy” is too broad
Hill v. Colorado • Colorado law bars knowing approaches w/in eight (8) feet of another person, without their consent, for the purpose of passing leaflets, counseling, displaying a sign or engaging in oral protest – Ban applies w/in 100 feet of any medical facility • Is this statute content-based or content-neutral? • Does it matter that the law was motivated by anti-abortion protests? • Does it matter that the law limits approaches only by people who leaflet, have signs, or have a purpose of “protest, educating, or counseling?”