content-based restrictions on speech in the public
forum are subject to strict judicial scrutiny
(usually a requirement that the restriction serve
a compelling state interest and that there is no
way of serving the interest that is less
speech-restrictive), content-neutral restrictions
on speech are subject to only intermediate
scrutiny. In general, the government must
show that the law serves an important objective
(not involving the suppression of speech), that
the law is narrowly tailored, and that there
remain ample alternative means of communication.
There are, of course, many content-neutral justifications for restricting speech. An anti-leafletting ban helps reduce litter (the Court overturned such a ban in Schneider), a ban on focused picketing outside private homes protects residential privacy (the Court upheld such a ban in Frisby), and a ban on soundtrucks at night helps people get to sleep (the Court upheld such a ban--see also Ward v Rock Against Racism).
Content-neutral justifications for regulating speech are, however, still subject to overbreadth challenges, as demonstrated by the recent case of Watchtower Bible & Tract Society v Stratton (2002). In Watchtower, the Court struck down on an 8 to 1 vote the ordinance of an Ohio town that required all door-to-door advocates of causes, as well as commercial solicitors, to obtain a permit from the mayor's office. The town had attempted to justifiy its ordinance as a fraud-prevention and privacy-protection measure, but Justice Stevens wrote for the Court that the ordinance was "offensive not only to the values protected by the First Amendment, but to the very notion of a free society." The Court found the alleged interests in protecting residential privacy and preventing fraud insufficient to justify such a sweeping restriction. The Court noted that the ordinance reached religious proselyting and anonymous political speech (where fraud is not an issue) and that residential privacy could be adequately protected by another Stratton law that allowed homeowners to place themselves on a "Do Not Solicit" law and then post "no solicitation" signs on their property. The Stratton case strongly suggests that the Court would find a carefully drafted "Do Not Call" law applying to telemarketers to be constitutional.
Two of our cases concern the state's interest in preventing disturbances of the public peace that might be caused by controversial speech. In Feiner (1951), the Court upheld the conviction of a speaker who refused three requests from a police officer to stop speaking after members of a street corner audience threatened to attack the speaker. Dissenting justices saw the decision as an outrage, suggesting that the police had an obligation to protect the speaker and arrest those who might try to assault him. (In Forsyth County (1992), the Court struck down an ordinance that allowed county officials to set permit fees for rallies and parades based on how much police protection was estimated to be required. The Court noted that such a permit system disproportionately burdens unpopular speech (allowing a "heckler's veto"). One wonders, after Forsyth County, whether Feiner remains good law.)Two cases concern ordinances, justified on aesthetic and other grounds, prohibiting placement of signs--one on public utility poles and the other in private yards. By a 6 to 3 vote in Taxpayers for Vincent, the Court upholds ban on placing signs on public utility poles. But in City of Ladue v Gilleo, the Court unanimously strikes down the ban on private yard signs, concluding that the ordinance fails to provide ample alternative means of conveying messages.
Finally, McCullen v Coakley (2014) considers the constitutionality of a 35-foot buffer zone around the entrances of reproductive health centers adopted by the Massachusetts legislature. In a unanimous holding, the Supreme Court struck down the Massachusetts law finding that it was not sufficiently narrowly tailored, given the considerable obstacles it presented for anti-abortion protesters in a public forum hoping to engage patients in discussions or to present them with handbills urging that they reconsider their decisions. Writing for a majority of the Court, Chief Justice Roberts did, however, find that the legislation, despite being focused only on speech near reproductive health centers, was content neutral. Justice Scalia objected to the Court's consideration of that issue.
2. Do you agree with Justice Black in Feiner that the police should arrest those that threaten a speaker espousing an unpopular viewpoint, not the speaker--even when he rejects requests to end his speech?
3. Feiner has never been overruled, but is the case likely to be followed today if police responded in a similar fashion to a speaker espousing an unpopular viewpoint on a street corner?
4. What, if anything, does Feiner suggest about how audience heckling of a speaker should be handled? Is heckling, at least in a traditional public forum, a First Amendment right? Does it depend upon the nature of the heckling?
5. Would you classify the permit ordinance involved in Forsyth County as a content-neutral law? Why or why not?
6. Why shouldn't the government be able to recoup the costs of providing security for an event that is likely to bring out counter-demonstrators and raises the possibility of violence?
7. Would the four dissenters in Forsyth County of upheld any fee (say, $100,000), so long as it was calculated to reflect real costs of providing security?
8. If aesthetics provides a sufficient justification (see Taxpayers for Vincent) for banning all signs on public utility poles, would it also provide a sufficient justification for banning all newsracks? All outdoor advertising?
9. Why does aesthetics not provide a sufficient justification for the ban on yardsigns struck down in City of Ladue?
10. Does a homeowner have a First Amendment right to put a sign advertising Budweiser in his front yard? How about a large flashing neon sign?
11. The disagreement on the Court in Ward is over whether the government, in attempting to justify a content-neutral law restricting speech, must show it used the least restrictive means or merely used not unreasonably restrictive means. Which view do you favor?