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CONTENT AND VIEWPOINT DISCRIMINATION:…,

Comm. L. & Pol’y

Thomson Reuters. No claim to original U.S. Government Works.

13 Comm. L. & Pol’y 1

Communication Law and Policy

Spring,

200

Article

Dan V. Kozlowski

CONTENT AND VIEWPOINT DISCRIMINATION: MALLEABLE TERMS BEGET MALLEABLE DOCTRINE

Recent scholarship has demonstrated that the Supreme Court of the United States has defined poorly and inconsistently applied two core First Amendment concepts—content and viewpoint discrimination. This article systematically explores the malleability of the Court’s speech discrimination principles. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the article studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. Analysis shows that the Court’s weak definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article concludes, therefore, by suggesting a new method of analysis that would offer more consistency.

The approach to the Free Speech Clause of the First Amendment by the Supreme Court of the United States depends heavily on categorical analysis.1 In its jurisprudence, the Court has recognized three categories of regulations on expression: content neutral, content based, and viewpoint based.2 Whether a regulation will be upheld depends in large measure on the Court’s initial determination of the category to which it belongs.3 The Court has devised tests to review content-based and content-neutral regulations (strict scrutiny for content-based regulations, a more lenient intermediate scrutiny for those regulations *1

deemed content neutral),

but it has said that viewpoint-based regulations are unconstitutional.

Given that the constitutional fate of a regulation under review hinges on the category to which it has been placed, the Court’s approach would seem to depend on a clear demarcation between those respective categories.

Scholars and judges have championed the Court’s categorical jurisprudence because they say, among other things, it offers precise guidance for lower courts and provides “clean, clear-cut distinctions between laws that raise or involve First Amendment issues.”

Justice Sandra Day

O’Connor

, for example, reasoned the content-based/content-neutral distinction “is a rule, in an area where fairly precise rules are better than more discretionary and more subjective balancing tests.”

To be sure, in theory, the Court’s categorical approach might seem straightforward and obvious, a sensible framework to ensure the utmost protection for free speech. In operation, however, cases have rarely been so easy for the Court, and the content and viewpoint concepts have proven to be slippery in the Court’s hands.

Recent scholarship has demonstrated that the definitions of content and viewpoint discrimination are murky, and that the Court has been guilty of differently stating tests and of varying its methods of analysis in determining content and viewpoint neutrality.8 The Court, in other *1

words, has failed to adequately define the terms and the criteria to be used in determining whether content or viewpoint discrimination is present.

As this article will illustrate, a jurisprudence praised for its supposed rigidness, then, in actuality has fallen victim to murkiness, inconsistency and malleability.

A few scholars have worried that the Court’s ill-defined distinctions might allow for justices to manipulate the content and viewpoint concepts to reach decisions that fit their views and ideological preferences. Commentator Susan Ehrmann, for instance, warned that “content and viewpoint discrimination are fluid terms prone to manipulation.”

Such “ambiguous doctrine allows the Court a large margin of error, and the opportunity to inject its views,” she argued.

Other scholars have expressed similar concerns.

Yet that commentary has largely been conjecture cast as dicta in law review articles. This article borrows from political scientists to explore the manipulability13 of the content and viewpoint concepts more fully and systematically. Specifically, the article analyzes free speech decisions by the Court in three emotionally charged areas of law that have divided conservatives and liberals in social, cultural and political life outside the Court— *1

speech regulations of abortion protesters, regulations of adult theaters and businesses, and restrictions on religious expression. In each area, content and viewpoint discrimination have taken center stage in significant cases. Might preferences and ideological tendencies help explain why majorities and dissenters interpret the content and viewpoint neutrality of regulations so differently in these emotionally charged areas?

Indeed, the article concludes that the Court’s malleable definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article finishes, therefore, by proposing a method of analysis that would offer more consistency. The proposed method suggests that in determining neutrality the Court must examine the face of a speech regulation, its purpose or justification, and its effect or operation. As the analysis will demonstrate, the Court’s method for evaluating a regulation’s neutrality has been inconsistent and varied. An approach that requires the Court to examine all three inquiries (face, purpose, effect) will ensure the Court’s speech discrimination principles are less malleable and more predictable—and thus more protective of expression.

IDEOLOGY AND COURT DECISIONS: A PERSPECTIVE FROM POLITICAL SCIENCE

Political scientists who study the Court have long claimed the legal community underestimates the importance that justices’ views and preferences play in determining case outcomes.

Professors Jeffrey Segal and Harold Spaeth are largely credited with fortifying that position in what is known as the “attitudinal model” in contemporary scholarship. *1

Segal and Spaeth contrasted their model with the “legal model” of judicial decision making, a model they said has long triumphed in the legal community but that is ultimately misleading and deficient.

As Segal and Spaeth described it, the legal model posits that the Court decides disputes before it in light of (1) the facts of the case vis-à-vis extant precedent and/or (2) the plain meaning of the Constitution and statutes; and/or (3) the intent of the framers. In other words, the legal model views judges as “constrained decision makers” who reach decisions through a “highly structured” process.

Segal and Spaeth—and other attitudinalists—challenged that view. Both litigants in a case, Segal and Spaeth argued, generally find supporting precedents and “each side typically alleges that either the plain meaning of the legal provisions at issue and/or the intent of the lawmakers supports its position.”

If various aspects of the legal model can support either side of a given dispute before the Court, they concluded, “[T]hen the legal model hardly satisfies as an explanation of Supreme Court decisions.”

Segal and Spaeth instead put forth the attitudinal model, which holds that justices make decisions by considering the facts of the case in light of their own ideological attitudes and values. More simply put: “[Justice William]

Rehnquist

vote[d] the way he [did] because he [was] extremely conservative; [Justice Thurgood]

Marshall

voted the way he did because he was extremely liberal.”20 The attitudinal model, they said, represents a melding of key concepts from legal realism, political science, psychology, and economics. Segal and Spaeth traced the genesis of the model to the legal realists of the 1

0s, who were reacting to the conservative jurisprudence then in vogue.

According to the classical legal scholars of that time, a judge’s techniques “were socially neutral, his private views irrelevant; judging was more like finding than making, a matter of necessity rather than choice.”

Against that theory of unchanging *1

law that judges merely find rather than make, the legal realists argued that lawmaking inhered in judging.

According to legal realist Karl Llewellyn, the first principle of legal realism is the “conception of law in flux, of moving law, and of judicial creation of law.”

To the legal realists, any explanation of how judges reach decisions is not to be found in “legal rules and concepts insofar as they purport to describe what either courts or people are actually doing.”

Judicial opinions containing such rules merely rationalize decisions, legal realists contended; they are not the causes of them.

Legal realists called for an empirical, scientific study of law to explain judicial decision making—a call, Segal and Spaeth said, to which scholars were slow to respond.

Political scientists say that justices’ views and preferences on constitutional issues result from the same influences that form political attitudes generally.

Professor Lawrence Baum, for instance, argued that Justice O’Connor’s service as a state official and her family’s experiences with federal regulation of their ranch unquestionably helped “to explain her support for state powers vis-à-vis those of the federal government.”

Each justice thus brings a particular set of attitudes to the Court, shaped by the justice’s background and experience.

Segal and Spaeth maintained that justices on the Court can vote for their attitudes and ideological preferences in cases because justices lack electoral or political accountability and ambition for higher office and because they comprise a court of last resort that effectively controls its own jurisdiction.

“Although the absence of these factors may hinder the personal policy-making capabilities of lower court judges, their presence enables the justices to vote as they individually see fit,” they wrote.31

Segal and Spaeth were not the first—and are not the only—scholars to test and then champion the idea that the best explanation for decision making on the Court lies in the personal policy preferences of *1

its members.32 Yet it has been their work in the past decade that has served as the definitive presentation of the attitudinal model and has thus sparked scholarly debate. A full discussion of the operationalization of variables and the statistical methods Segal and Spaeth employed is outside the scope of this article. The aim here is not to test their model or challenge their results. Furthermore, it is important to note that Segal and Spaeth’s attitudinal model is not immune from criticism or without its detractors. Scholars have rightly charged them with oversimplifying judicial decision making—too casually dismissing the important role precedent can, and does, play33—and with ignoring institutional constraints on the Court.34 Nevertheless, although some scholars take issue with the broad charge of the model—which posits that justices’ policy preferences are essentially a complete explanation of the Court’s decisions—no political scientist appears to challenge the model’s underlying thrust: that a justice’s preferences and ideological tendencies do have a significant influence on his or her vote. That important insight informs this article’s exploration of the ideological manipulability of the viewpoint and content concepts.35 Evidence demonstrates that, on balance, determinations of content and viewpoint neutrality in the cases studied here reflect the justices’ preferences and ideological tendencies.

APPROACH AND METHOD

To examine whether the Court’s content- and viewpoint-neutrality principles have been vulnerable to ideological manipulation, this article examines Court decisions in three socially divisive areas of law—speech regulations of abortion protesters; regulations of adult theaters and businesses, particularly the Court’s “secondary effects” cases; and restrictions on religious expression. Viewpoint and content discrimination have been central issues of significant cases in each area.36 These three *1

areas of the law provide good test cases to explore the malleability of the viewpoint and content concepts. The cases involve ideologically charged issues—abortion, sex, religion—that tend to starkly divide opponents on ideological lines. If Professor Baum is correct that “even if justices consciously seek only to interpret the law properly, their ‘rooting interests’ tend to steer them toward the interpretation that is most consistent with their policy preferences,”37 the cases involving these concepts would seem to exemplify his point dramatically. The ill-defined viewpoint and content concepts likely make it even easier for a justice’s “rooting interests” to steer his or her decision in these cases involving such divisive social issues. Using The Supreme Court Compendium,38 the analysis that follows explores whether a justice’s interpretation of the neutrality of a speech regulation falls on expected ideological lines. In the cases involving regulations of adult theaters and businesses, for instance, have the constant divisions over the neutrality of the regulations pitted conservative versus more liberal voters in the First Amendment area?

To best answer that question, of course, a quantifiable measure of justices’ voting behaviors is needed.

The Compendium is a well regarded and comprehensive collection of data on the Supreme Court—the only of its kind, its authors say—put together by four political science professors.

Chapter six of the Compendium, titled “The Justices: Oral Arguments, Votes, and Opinions,” examines, among other things, the voting behavior of the justices. The voting data consist of all formally decided cases on the Court’s appellate docket from the 19

through 2004 terms.

Table 6.4 of the Compendium presents the aggregate *

139

voting behavior for each justice who served during those terms.

The table lists the percentage of cases in which each justice took the liberal position, offering a way, then, to assess the ideological voting tendency of justices.

Votes are broken down into eleven aggregate issue areas,

plus a separate civil liberties column that combines the votes from criminal procedure, civil rights, First Amendment, due process, attorneys

and privacy cases. One of the issue areas examines justices’ votes in First Amendment cases exclusively.46 A vote is counted as liberal if a justice voted “pro-individual against the government” in a First Amendment case.

Using the Compendium, the analysis that follows suggests that preferences and ideological tendencies might help explain why majorities and dissenters interpret the content- and viewpoint-neutrality of regulations so differently in these emotionally charged areas. In looking at each case, the analysis also focuses on the conceptualization of the content and viewpoint terms and the methods of analysis majorities and dissenters have used. The analysis begins with the three cases in which the Court has reviewed regulations restricting the speech of abortion protesters.

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SPEECH REGULATIONS OF ABORTION PROTESTERS

It would be no overstatement to say that abortion has been one of the, if not the, most divisive social issues over the last three decades. In the controversial 19

case Roe v. Wade, the Court extended the constitutional right of privacy “to encompass a woman’s decision whether or not to terminate her pregnancy.”

Roe has produced an uproar that, thirty-five years later, continues to splinter society and divide the Court. Abortion foes had hoped, even anticipated, that the conservative Rehnquist Court would reverse Roe.

In spite of the fact that at one point four justices on the Rehnquist Court supported Roe’s outright reversal,

that position was never able to command a majority, and Roe remains good law. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1

2 case conservatives hoped would finally slay Roe, the Court upheld a number of abortion restrictions, but in an unusual co-authored opinion by Justices O’Connor, Anthony

Kennedy

and David

Souter

, the Court reaffirmed Roe’s “essential holding.”

Abortion opponents, therefore, have argued that the areas outside abortion clinics represent one of the few places left for those opposed to the practice to have influence.

Protesters outside clinics have proven to be strident, persistent, and, in some cases, physical. Consequently, courts have issued injunctions and legislatures have passed laws intended to protect the rights of patients entering clinics. And those injunctions and statutes have reached the Court, resulting in fiery disagreements among justices as to whether they should properly be characterized as content neutral, content based or viewpoint based.

The Court has decided three cases in the past fourteen years involving restrictions on abortion protesters. In

Madsen

v. Women’s Health Center, Inc.

and

Schenck v. Pro-Choice Network of Western New York

the Court upheld injunctions issued against protesters. And in

Hill

v. *

141

Colorado,

the Court upheld a law that restricted speech outside health clinics. As will be discussed in more detail, an argument can be made that most justices on the Court appeared to see these cases as pitting two constitutional rights against each other: free speech and the right to privacy that informs the Court’s abortion jurisprudence. If preference for or against abortion drove justices’ decisions in these cases, an expectation would be that those justices who have been more supportive of abortion rights would uphold the regulations as content neutral while justices opposed to abortion rights would strike them down, instead siding with the speech rights of protesters. As Table 1 demonstrates, the lineup of justices in the three cases generally follows that expectation—though not perfectly. With few exceptions, the justices’ positions in privacy cases appeared to drive their resolution of the cases discussed here. Table 1 shows the lineup of justices and the frequency with which they have supported the liberal position in three relevant issue areas.

As indicated, the data presented in the table are taken from The Supreme Court Compendium. The figures listed indicate the percentage of cases in which the justice took the liberal position in the area during his or her duration on the Court. The authors of the Compendium defined the First Amendment area as “guarantees contained therein.”

Privacy included abortion, contraception and Freedom of Information Act cases. A vote was counted as liberal if a justice voted pro-individual against the government in First Amendment and privacy cases. The Civil Liberties area combined the votes from criminal procedure, civil rights, First Amendment, due process, attorneys, and privacy cases. Pro-defendant votes in criminal procedure cases and pro-women or pro—minorities votes in civil rights cases were considered liberal.

The table can be interpreted this way: In Madsen v. Women’s Health Center, Inc., a six-justice majority—Rehnquist, Harry

Blackmun

, Ruth Bader

Ginsburg

, O’Connor, Souter and John Paul

Stevens

—voted against the abortion protesters’ First Amendment claim. Rehnquist authored the majority opinion. Three justices—Antonin

Scalia

, Kennedy and

Thomas

—dissented in the case and voted to support the First Amendment claim of the protesters. Scalia authored the dissenting opinion. The figures indicate the percentage of cases in which the justice took the liberal position in the respective issue area. Rehnquist, for instance, voted liberally in First Amendment cases—that is, he supported the individual against the government—

24.1

% of the time during his duration on the Court. In privacy cases, he took the liberal position

17.1

% of the time.

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Table 1. Votes of Justices in Cases Involving Regulations of Abortion Protesters and the Aggregate Liberal Voting Records of Those Justices in Relevant Issue Areas

AGGREGATE LIBERAL VOTING RECORDS OF INDIVIDUAL JUSTICES IN RELEVANT ISSUE AREAS (IN PERCENTAGES)

FIRST AMENDMENT

CIVIL LIBERTIES

PRIVACY

CASE: MADSEN V. WOMEN’S HEALTH CENTER, INC. (19

)

Majority (Against 1st Am Claim)

Rehnquist (author)

24.1

22.6

17.1

Blackmun

56.8

50.9

Ginsburg

66.7

O’Connor

46.1

36.8

Souter

Stevens

55.1

Dissent (For 1st Am Claim)

Scalia (author)

28.4

27.6

Kennedy

54.4

37.7

27.8

Thomas

27.7

23.7

26.9

CASE: SCHENCK V. PRO-CHOICE NETWORK OF WESTERN NEW YORK (19

)

Majority (Against 1st Am Claim)
Rehnquist (author)
24.1
22.6
17.1

Breyer

61.3

47.6

Ginsburg
76.3
66.3
66.7

O’Connor
46.1
36.8
42

Souter
78.2
62.9
60.7

Stevens
69.4
65.3
55.1
Dissent (For 1st Am Claim)
Scalia (author)
28.4
27.6
25

Kennedy
54.4
37.7
27.8

Thomas
27.7
23.7
26.9

CASE: HILL V. COLORADO (2000)

Majority (Against 1st Am Claim)

Stevens (author)

69.4
65.3
55.1

Breyer
61.8
61.3
47.6

Ginsburg
76.3
66.3
66.7

O’Connor
46.1
36.8
42

Rehnquist
24.1
22.6
17.1

Souter
78.2
62.9
60.7
Dissent (For 1st Am Claim)
Scalia (author)
28.4
27.6
25

Kennedy (author)

54.4
37.7
27.8

Thomas
27.7
23.7
26.9

In each case, the table shows, three of the justices who have voted the most conservatively in privacy and civil liberties cases voted to strike down the regulations on abortion protesters. Conversely, of the six justices in the majority, four have voted the most liberally in privacy and civil liberties cases and have been the most supportive of abortion rights. Those justices— Justices Blackmun, Ginsburg, Souter and Stevens in Madsen and Justice Stephen Breyer (who replaced Blackmun on the Court in

199

4) in Schenck and Hill—have also voted more liberally than *

143

the dissenters in First Amendment cases. Yet in these three cases it was the more conservative dissenters supporting the First Amendment rights of abortion protesters, voting to strike down the regulations as content and viewpoint based.

Justice O’Connor voted with the majority in each case. She was a frequent swing voter in abortion cases, having supported the liberal position in privacy cases slightly more than 40% of the time. Unlike the other majority justices, however, O’Connor did not vote decidedly more liberally than the dissenters in the other areas. In fact, she voted more conservatively in First Amendment and civil liberties cases than did Kennedy. O’Connor thus resists easy categorization here, as she so frequently did during her duration on the Court.

Chief Justice Rehnquist, of course, stands out as a glaring exception. He was one of the Court’s most conservative members,

as evidenced by the low percentage of liberal votes cast in all three areas. He was a strong critic of Roe, and he articulated his desire to overturn that decision. Unsurprisingly, then, he also wrote and joined opinions upholding restrictions on abortion and dissented in cases in which the Court did not.

Indeed, had he joined the dissenters in these three cases, the lineup would have been a familiar one to observers of the Court’s abortion decisions. In Stenberg v. Carhart,60 for instance, decided the same year as Hill, a 5-4 majority struck down a state ban on partial birth abortions. Rehnquist, Kennedy, Scalia and Thomas dissented, with Scalia’s dissent bitingly indicating he thought the decision would someday take its “rightful place in the history of this Court’s jurisprudence” alongside the reviled Dred Scott decision.61

O’Connor, yet again, was the swing vote in Stenberg and would have been in the three speech cases discussed here as well had Rehnquist aligned with his ideological brethren.62 He did not, however, perhaps challenging the argument that preferences for or against abortion alone explained the justices’ resolution of these cases. Yet it is important to point out that, although upholding restrictions on abortion protesters *

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did not line up with his vehement opposition to constitutionally protected abortion rights, his support of the regulations did align with his generally conservative approach to the First Amendment. Upholding regulations of abortion protesters is an anti-liberal decision as The Supreme Court Compendium defined the term because the decision sides with the government and not individuals. As the table shows, Rehnquist voted the most conservatively of any justice in the First Amendment area during the time these cases were decided. In that sense at least, he stayed true to his ideological form, while the Court’s otherwise more liberal voters in the First Amendment area who joined him changed course and sided with the government.

In each case, the majority held that the regulations of abortion protesters were content neutral. The dissent, on the other hand, countered that the regulations were unconstitutionally content or viewpoint based. As will be discussed, opposing justices in these cases used differing approaches to determine the neutrality of the regulations. That is, majorities and dissents reached different results utilizing different approaches (for example, the majority defers to the government’s asserted neutral purpose, while the dissent closely scrutinizes that purpose), or they utilized the same approach yet disagreed over its application (for example, disagreeing how to evaluate the face of a regulation).

In the first case, Madsen v. Women’s Health Center, Inc.,

the Court ruled that an injunction issued against a group of abortion protesters was content neutral. Among other things, the injunction created a thirty-six-foot buffer zone around an abortion clinic entrance and driveway and to the north and west of the clinic property. The injunction applied to the protesters and to those acting “in concert” with them.

The petitioners argued that the injunction was necessarily content and viewpoint based because it only restricted the speech of abortion protesters. The Court, however, flatly rejected that argument. Rehnquist wrote that an injunction, “by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group’s past actions in the context of a specific dispute.”

Citing Ward v. Rock Against Racism,65 Rehnquist wrote that the principal inquiry in determining content neutrality is whether the government has adopted a regulation “without reference to the content of the regulated speech.”66 For the majority, then, the threshold consideration in the case was the *

145

government’s purpose, not the effect or impact of the regulation. Here, the Court ruled the injunction imposed “incidental” restrictions on the protesters’ anti-abortion message “because [the named protesters] repeatedly violated the court’s original order.”

The majority thus seemed to draw on a speech/conduct distinction to find the injunction content neutral.

The injunction was not imposed because of disagreement with the protesters’ speech, the Court determined, but because of their prior unlawful conduct. Thus, the majority said the injunction was properly characterized as content neutral, and the restrictions, in part, were upheld as constitutional.69

Scalia authored a fiery dissent. He would have agreed with the assertion that preferences for or against abortion helped explain the case’s outcome—at least as pertained to the majority. He accused the justices in the majority of letting their preference for abortion and their disfavor of abortion protesters color the case. In any other context, he argued, “[T]he entire injunction … would have been regarded as a candidate for summary reversal.”

But the context here was abortion, he wrote, where the Court had frequently put to work an “ad hoc nullification machine” to push aside whatever constitutional doctrines interfered with the practice of abortion.

Scalia made no attempt to reconcile that argument with the fact that in Madsen it was Rehnquist, long an abortion rights opponent, authoring the majority opinion.

Scalia argued that the Court was wrong to focus its determination of content neutrality exclusively on whether a regulation was motivated by an illegitimate purpose. The vice of content-based legislation, he wrote, “is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.”73 The effect *

146

or operation of a law, in other words, could render it content based, even absent an invidious purpose, he suggested. Because an injunction invariably can target one side of an ideological dispute—because, like a content-based law, it can lend itself to “thought-control purposes”—Scalia reasoned that any speech-restricting injunction warranted strict scrutiny.

He argued that such a rigorous standard was especially necessary in this case, in which the injunction, he wrote, “was content based (indeed, viewpoint based) to boot.”

He rejected the speech/conduct distinction that Rehnquist appeared to draw in the majority opinion, and he cast doubt on the purported neutral purpose that the Court found so satisfying. If it were true, he wrote, that the injunction was directed at those who violated the earlier injunction and not at those who merely spoke certain things (anti-abortion sentiments), “then the injunction’s residual coverage of ‘all persons acting in concert … would not include those who merely entertained the same beliefs and wished to express the same views as the named defendants.”’76 Yet, looking closely at the transcripts of a hearing before the judge who issued the injunction, Scalia determined that was precisely what was happening: “All those who wish to express the same views as the named defendants are deemed to be ‘acting in concert or participation.”’

To buttress his point, he quoted several exchanges between the trial judge and people who had been arrested for walking within the buffer zone but had not been named in the amended injunction.78 Looking at those exchanges led Scalia to conclude that there was “no doubt that the revised injunction here is tailored to restrain persons distinguished, not by proscribable conduct, but by proscribable views.”

The majority largely ignored Scalia’s argument and the statements from the hearing. For Scalia, however, the statements were smoking-gun evidence that in operation the injunction was viewpoint based.

147

In Hill v. Colorado,

the Court divided over the content and viewpoint neutrality of a law that prohibited anyone within

100

feet of a health care facility from knowingly approaching within eight feet of another person, without that person’s consent, in order to engage in “oral protest, education, or counseling.”

Again the majority and dissenting opinions emphasized different criteria and used differing methods of analysis. Stevens, writing for the same six-justice majority that had upheld the injunction in Schenck, was satisfied that the law was content neutral essentially for two reasons. First, on its face the law did not make any explicit textual distinctions between any subjects or viewpoints. As the majority interpreted the law, it applied “equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries.”

Under the law, the Court held, no one was allowed to educate, protest or counsel within eight feet of another person without permission on any subject with any viewpoint outside of a health clinic.

Second, as in Madsen, the Court held that the law was not motivated by an illegitimate purpose—though the majority appeared to give the issue cursory discussion. Stevens wrote that the law passed Ward’s test that demanded government not adopt a regulation of speech “because of disagreement with the message it conveys.”

Notably, the majority *

148

did not conduct its own independent examination of the Colorado legislature’s intent but instead, in two sentences, found that the “Colorado courts’ interpretation of legislative history” and the state supreme court’s holding that the law applied “equally to all demonstrators” sufficed to demonstrate a neutral purpose.

Further, the Court noted that Colorado’s interests in protecting privacy and access to health clinics, which the state said the law did, were “unrelated to the content of the demonstrators’ speech.”

The same trio dissented in Hill, although this time Kennedy authored a separate dissent. He disagreed with the majority that the law was content neutral on its face.

Moreover, looking both to the law’s purpose and effect, Kennedy argued the law was viewpoint based. Whereas the majority had deferentially evaluated the government’s purpose in finding the law content neutral, Kennedy said the “true purpose” of the law was obvious.

The law’s preamble, which recognized a person’s right to protest against medical procedures,

removed any doubt, he wrote. Further, he noted, the testimony to the Colorado legislature “consisted, almost in its entirety, of debates and controversies with respect to abortion.”

Kennedy thus concluded there was no question that the law was intended to restrict the speech of abortion protesters.

Both Kennedy’s and Scalia’s dissents also faulted the majority for ignoring what they found to be the law’s obvious effects. Satisfied that the law on its face applied equally, the majority opinion showed little concern for the law’s practical operation. Kennedy, however, wrote that under a reasonable interpretation of the law, a speaker chanting in praise of the Court and its abortion decisions outside a health clinic would not be protesting, educating or counseling and therefore would be free from the law’s demands. “If the opposite message is communicated, however, a prosecution to punish protest is warranted,” he argued.92 Scalia, in a dissent joined by Thomas, similarly focused on the law’s disproportionate effects. He repeated his line from Madsen that the vice *

149

of content-based legislation is that it “lends itself to use” for invidious, thought-control purposes, regardless of the law’s motivation. He argued: “A restriction that operates only on speech that communicates a message of protest, education, or counseling presents exactly this risk. When applied, as it is here, at the entrance to medical facilities, it is a means of impeding speech against abortion.”

It thus “blinks reality,” Scalia concluded, to interpret the law as content neutral.94

As they had in Madsen, the dissenters accused the majority of letting their preference for abortion dictate the holding. Scalia wrote that the “ad hoc nullification machine” was at work.

For his part, Kennedy thought the majority’s opinion “strikes at the heart of the reasoned, careful balance I had believed was the basis for the [joint] opinion in Casey.”

That opinion, he claimed, recognized that a woman’s decision whether to have an abortion was a “moral one.”97 But here in Hill, he concluded, the Court was “so committed … to its course” that it was willing to “[tear] away from the protesters the guarantees of the First Amendment when they most need it.”

The majority again did not respond to those accusations. As those justices saw it, the law was neutral and applied equally to any and all protesters on any subject. What is perhaps most telling about these cases is that the justices so often appeared to be talking past one another. In Hill, the majority deferred to state court opinions in finding that the law’s purpose was neutral. Kennedy, however, independently scrutinized the legislative history closely and drew attention to the law’s preamble, which he said indicated the law’s “true purpose.”99 Similarly, the majority paid little attention to the effect of the law in Hill. The dissenters, on the other hand, argued that the law’s effect should have been dispositive. In his Madsen dissent, Scalia focused his analysis on transcripts from an in-court hearing that he claimed were evidence of the injunction’s viewpoint-based operation. The majority ignored the transcripts and instead agreed with the state that the injunction had a legitimate purpose: It was a proper response to prior unlawful conduct. Because the Court has no clearly prescribed or agreed-upon *

150

way to determine content and viewpoint neutrality, it leaves itself vulnerable to charges in cases like these that justices are able to pick, choose, and ignore evidence to justify decisions that fit their preferences. An approach that requires the Court to examine the face, purpose, and effect of a regulation—and an approach that also specifies the parameters of evaluating evidence within each inquiry—would help remedy the malleability and inconsistency that presently plague the content and viewpoint concepts.

REGULATIONS OF ADULT THEATERS AND BUSINESSES

In a line of cases involving regulations of sexual expression, the Court has employed what one commentator has called “the puzzling doctrine of secondary effects” to uphold laws that are facially content based.100 In these cases, the Court has defined content-neutral regulations as those that are “justified without reference to the content of the regulated speech,”

101

permitting it, then, to look beyond the content-based face of a regulation. Because these laws are aimed at the “secondary effects” of adult theaters and business and not at the content of speech itself, the Court has said, the laws are properly reviewed under intermediate scrutiny. Since its birth, the secondary effects doctrine has badly divided the Court. If ideological tendencies are driving justices’ determinations of neutrality in these cases, an expectation would be that more conservative justices would be sympathetic to government’s attempts to curb sexual expression and, therefore, would be supportive of the doctrine, while more liberal justices would be less deferential to government and wary of labeling these regulations neutral. Table 2 shows the lineup of justices and the frequency with which they have supported the liberal position in two relevant issue areas. The majority and plurality opinions in each case upheld the regulations.

The table can be interpreted this way: In City of Renton v. Playtime Theatres, Inc., a six-justice majority—Rehnquist, Warren

Burger

, O’Connor,

Powell

, Stevens and

White

—voted against the adult theater owner’s First Amendment claim. Rehnquist authored the majority opinion. Blackmun wrote a separate concurring opinion in which he also voted against the theater owner’s First Amendment claim. Two justices—William

Brennan

and Thurgood Marshall— dissented and voted to support the First Amendment claim of the adult theater owner, Brennan writing the opinion. The figures indicate the percentage *

152

of cases in which each justice took the liberal position in the respective issue area. Brennan, for instance, voted liberally in First Amendment cases—that is, he supported the individual against the government—

83.5

% of the time. In civil liberties cases, he took the liberal position

79.7

% of the time.

Table 2. Votes of Justices in Cases Involving Regulations of Adult Theaters and Businesses and the Aggregate Liberal Voting Records of Those Justices in Relevant Issue Areas

AGGREGATE LIBERAL VOTING RECORDS OF JUSTICES IN RELEVANT ISSUE AREAS (IN PERCENTAGES)

FIRST AMENDMENT
CIVIL LIBERTIES

CASE: YOUNG V. AMERICAN MINI THEATRES (

197

Plurality (Against 1st Am Claim)

Stevens (author)
69.4
65.3

Burger

32.1

29.8

Rehnquist
24.1
22.6

White

38.1

42.5

Concurring (Against 1st Am Claim)

Powell

47.5

37.3

Dissent (For 1st Am Claim)

Stewart (author)

63.7

51.4

Blackmun (author)

56.8
53

Brennan
83.5
79.7

Marshall

82.5

81.4

CASE: CITY OF RENTON V. PLAYTIME THEATRES, INC. (

198

Majority (Against 1st Am Claim)
Rehnquist (author)
24.1
22.6

Burger
32.1
29.8

O’Connor
46.1
36.8

Powell
47.5
37.3

Stevens
69.4
65.3

White
38.1
42.5
Concurring (Against 1st Am Claim)
Blackmun
56.8
53
Dissent (For 1st Am Claim)

Brennan (author)

83.5
79.7

Marshall
82.5
81.4

CASE: CITY OF ERIE V. PAP’S A.M. (2000)

Plurality (Against 1st Am Claim)

O’Connor (author)

46.1
36.8

Breyer
61.8
61.3

Kennedy
54.4
37.7

Rehnquist
24.1
22.6
Concurring (Against 1st Am Claim)
Scalia (author)
28.4
27.6

Thomas
27.7
23.7

Concurring & Dissenting (Against, For 1st Am Claim)

Souter
78.2
62.9
Dissent (For 1st Am Claim)
Stevens (author)
69.4
65.3

Ginsburg
76.3
66.3

CASE: CITY OF LOS ANGELES V. ALAMEDA BOOKS, INC. (2002)

Plurality (Against 1st Am Claim)
O’Connor (author)
46.1
36.8

Rehnquist
24.1
22.6

Scalia
28.4
27.6

Thomas
27.7
23.7
Concurring (Against 1st Am Claim)
Kennedy
54.4
37.7
Dissent (For 1st Am Claim)

Souter (author)

78.2
62.9

Breyer
61.8
61.3

Ginsburg
76.3
66.3

Stevens
69.4
65.3

As Table 2 demonstrates, almost without exception the lineup of justices in the four secondary effects cases has supported the expectation. Justices who voted the most conservatively in First Amendment and civil liberties cases supported labeling the regulations content neutral. The Court’s more liberal justices in the two issue areas have consistently dissented and cast doubt on the secondary effects doctrine. “Almost,” however, is a crucial qualifier. Stevens, one of the more liberal voters in First Amendment and civil liberties cases, authored the plurality opinion in Young v. American Mini Theatres

102

and joined the majority opinion in City of Renton v. Playtime Theatres, Inc.

103

Stevens’ votes in these secondary effects cases illustrates how a justice’s position can evolve. In American Mini Theatres a plurality of the Court ruled that sexual expression was less deserving of First Amendment protection than political or other speech, and the plurality was thus deferential to the city’s efforts to zone adult theaters. In the two most recent cases in this area, however, City of Erie v. Pap’s A.M.

104

and City of Los Angeles v. Alameda Books, Inc.,

105

Stevens joined the dissenters and wished to more closely scrutinize government’s purpose. Also, Breyer, who has voted in the liberal direction in First Amendment and civil liberties cases more than sixty percent of the time, joined the plurality opinion in Pap’s A.M. By the 2002 Alameda Books, Inc. case, however, the split *

153

on the Court perfectly mirrored the ideological voting behavior of the justices: The five justices who have voted the most conservatively upheld the regulation, with the moderate Kennedy providing the crucial swing vote, while the Court’s four most liberal members dissented.

The secondary effects language and rationale first appeared in Young v. American Mini Theatres,

106

though it received only plurality support. Four justices voted to uphold a Detroit ordinance that prevented adult theaters from being located within 1,000 feet of any two other “regulated uses”

107

or within 500 feet of a residential area on the basis that adult theaters could be singled out because sexually explicit films were less worthy of First Amendment protection than other expression.

108

Stevens noted that the Detroit Common Council had determined that a concentration of adult theaters would cause an area to deteriorate and become a focus of crime. In a footnote, the plurality wrote that those “secondary effects” justified the content distinction the city had made.

109

Four of the Court’s most liberal voters in the First Amendment area dissented, with Justice Potter Stewart arguing the plurality had ridden “roughshod over cardinal principles of First Amendment law.”

110

The law was content based, the dissent concluded, and therefore should have been declared unconstitutional.

A majority has never embraced the candor of the plurality opinion in American Mini Theatres. When the secondary-effects rationale received majority approval ten years later in City of Renton v. Playtime Theatres, Inc.,

111

the Court did so on the basis that the regulation was content neutral, not on the grounds that it was a permissible content regulation of less-deserving speech. Yet, as Professor Daniel Farber has argued, the Court’s willingness to uphold the regulations in Renton and subsequent cases based on fairly thin evidentiary records suggests that the Court does—or, perhaps, more conservative justices on the Court do—in fact regard non-obscene sexual materials as enjoying a lower constitutional status than other protected speech.

112

Indeed, the disagreements among justices in the three remaining cases in this area have primarily been over their differing evaluations of *

154

those evidentiary records. Because the secondary effects approach labels regulations content neutral because they are justified without reference to the content of the regulated speech, the government’s purpose has become the controlling consideration and, thus, often the locus of debate for justices. In these three cases, as will be seen, the Court’s more conservative justices in the First Amendment area have shown a willingness to defer to government. The Court’s more liberal voters, on the other hand, have scrutinized the government’s asserted purpose more closely and suggested that government was really interested in suppressing expression itself, not secondary effects. Dissenters also have continued to argue in these cases that the content-neutral label is inappropriately applied to regulations that discriminate on their face based on content. Again, the absence of a prescribed method to determine neutrality has led to uncertainty, and it has permitted opposing justices to rely on different methods and criteria in justifying their decisions.

In Renton, the Court upheld a zoning ordinance that prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park or school. Rehnquist’s majority opinion candidly acknowledged that, on its face, the law “treats theaters that specialize in adult films differently from other kinds of theaters.”

113

Nevertheless, he wrote, the Renton ordinance was “aimed not at the content of the films shown at adult motion picture theaters, but rather at the secondary effects of such theaters on the surrounding community.”

114

The court of appeals had held that if “a motivating factor” of the city council in enacting the law was to restrict the exercise of First Amendment rights, the law would be unconstitutional.

115

Relying on language from United States v. O’Brien, in which the Court ruled it would not “strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive,”

116

Rehnquist rejected the court of appeals’ assessment.

117

The trial court’s finding of “predominate intent,” the Court held, was “more than adequate to establish that the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression.”

118

The Court thus held that, because the city’s “predominate intent” was neutral, the law itself *

155

was content neutral and subject to intermediate scrutiny, which it passed.

Justices Brennan and Marshall, the Court’s two most liberal voters in the First Amendment area at the time, dissented.

119

Brennan’s spirited opinion argued that the ordinance on its face “discriminates … against certain forms of speech based on content” and thus was wrongly labeled content neutral.

120

Further, Brennan said he was unwilling to “simply accept,” as he argued the majority did, Renton’s claim that the law was not designed to suppress the content of adult movies.

121

A closer look at the city council’s purpose, he argued, revealed its intentions were in fact to suppress expression. He wrote that the city council added the provision to the law explaining its aim to control secondary effects only after owners of adult theaters brought a lawsuit. Prior to that amendment, he wrote, there was no indication that the ordinance was designed to address any secondary effects.

122

Brennan added that the “findings” that were said to justify the law post hoc were no more than “purely speculative conclusions,” based on no expert testimony or independent study of Renton’s particular circumstances.

123

He thus accused the majority of permitting Renton “to conceal its illicit motives.”

124

Throughout his dissent, Brennan faulted the ordinance for impermissibly restricting speech based on its content or subject matter. In a footnote, however, he suggested that the ordinance could also be construed to constitute viewpoint discrimination. Brennan approvingly quoted a 1978 law review article by Professor Geoffrey Stone, who wrote that because adult films transmit an implicit view in favor of relaxed sexually mores, restrictions such as the one at issue in Renton “‘have a potent viewpoint-differential impact.”’

125

Brennan did not elaborate on the point, and the majority did not respond to it. As will be discussed, *

156

however, in a later case Souter in dissent similarly argued that a zoning restriction that singles out adult businesses can be interpreted as a viewpoint-based regulation.

In the 2000 case City of Erie v. Pap’s A.M.,

126

the Court extended the secondary effects rationale beyond zoning restrictions to include a ban on nude dancing. Erie enacted a public indecency ordinance that prohibited knowingly or intentionally appearing in public in a “state of nudity.”

127

Members of the Court disagreed on whether the law violated the First Amendment rights of a nude dancing establishment because it forced erotic dancers to wear, at a minimum, “pasties” and “G-strings”.

128

A plurality of the Court ruled the law was a content-neutral restriction on symbolic speech that passed the framework set forth in United States v. O’Brien.

129

On its face, Justice O’Connor wrote for the plurality, the law was a general prohibition on public nudity.

130

Pap’s A.M., however, argued that the law was related to the suppression of expression because language in the law’s preamble suggested that its actual purpose was to prohibit erotic dancing.

131

O’Connor relied on the Pennsylvania Supreme Court’s interpretation of the law to reject the argument.

132

In light of the Pennsylvania court’s holding that “one purpose” of the law was to combat secondary effects, O’Connor concluded, the law was properly evaluated as a content-neutral restriction because its *

157

purpose was unrelated to censoring expression.

133

Scalia and Thomas, two of the Court’s most conservative voters in the First Amendment area, concurred in the judgment only. Scalia argued that a general ban on public nudity regulates conduct rather than speech and is, therefore, outside of First Amendment scrutiny altogether.

134

In his biting dissents in which he championed the First Amendment rights of abortion protesters, Scalia focused closely on the effects of the regulations to find them content and viewpoint based.

135

Here, instead, he appeared to have little regard for nude dancing and was quite deferential to governmental attempts to curb it.

136

Stevens, joined by Ginsburg—one of the most liberal voters in the First Amendment area—rejected the Court’s application of the secondary effects rationale outside the zoning context. Stevens interpreted the law to constitute a ban on nude dancing. The law, in other words, foreclosed the message nude dancing communicated, “a message protected by the First Amendment.”

137

Moreover, he wrote, the Court was wrong to conclude that the city’s purpose in enacting the law was unrelated to suppressing speech. Looking closely at the city council’s purpose—arguably, a close look that Stevens did not support when he joined the majority opinion in Renton and wrote the Court’s opinion in Hill—he argued that it was “pellucidly clear that the city of Erie has prohibited nude dancing precisely because of its communicative attributes.”

138

Stevens focused on the law’s preamble139 and then examined the law’s legislative history in the form of comments from city council members who voted for the law.140 Four of the six council members *

158

who approved the law, Stevens wrote, “[S]tated [their] view that the ordinance was aimed specifically at nude adult entertainment.”141 Therefore, he concluded, it was “beyond a shadow of a doubt,” that the purpose of the law was to suppress the message communicated by nude dancing, not to combat secondary effects, and the law was thus unconstitutional.142

In a separate dissent, Justice Souter agreed with the plurality that the city’s stated interest in combating secondary effects was unrelated to the suppression of expression. As he saw it, however, the city had an inadequate factual basis to support the law. Souter, who has voted in the liberal direction in First Amendment cases more than 78% of the time was unwilling to grant the government discretion and instead demanded that the government demonstrate an evidentiary basis for the law.143 The proposition that nude dancing establishments increase the incidence of prostitution and violence is amenable to empirical treatment, he said, but the city had failed to make such a demonstration here. Souter wrote that he was not suggesting that the required evidentiary showing could never be made. Rather, in this case Erie had simply not made it.144

Souter’s demand for evidence and unwillingness to defer to government in its regulation of sexual speech commanded three other votes in a dissenting opinion in the Court’s most recent secondary effects case, City of Los Angeles v. Alameda Books, Inc.145 A 1977 study conducted by Los Angeles concluded that concentrations of adult businesses were associated with higher rates of prostitution, assaults, robbery and thefts in surrounding communities. The city responded by enacting a zoning ordinance that dispersed the location of adult businesses throughout the city.146 Six years after the study, the city amended the law to prohibit the establishment or maintenance of more than one adult entertainment business in the same building, even though the original study had not specifically addressed the effects of so-called multiple-use adult establishments.147 After two lower courts ruled a business operating *

159

both as an adult bookstore and an adult arcade could not be punished under the law, the Court reversed in a 5-4 decision.

Justice O’Connor’s plurality opinion, joined by the three justices who have voted the most conservatively in the First Amendment area, held that it was reasonable for Los Angeles to rely on the findings of the 1977 study as the basis for the ban on multiple-use establishments. Relying on Renton, she wrote that the evidentiary requirement for municipalities was only that they “rely upon evidence that is reasonably believed to be relevant to the secondary effects that they seek to address.”148 That was the case here, she wrote, as the city rationally assumed that reducing the concentration of adult businesses in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime.149 Kennedy provided the crucial fifth vote but concurred in the judgment only. He appeared to depart from the Renton ruling that the type of zoning ordinance at issue in Alameda Books should be labeled content neutral. “These ordinances are content based and we should call them so,” he argued.150 Nevertheless, Kennedy wrote that he supported Renton’s “central holding” that a zoning restriction that is designed to decrease secondary effects should be subjected to intermediate scrutiny.

151

As for the present case, he, like the plurality, was willing to defer to government, concluding that the city could reasonably infer that two adult businesses under the same roof were no better than two next door.152

The Court’s four most liberal voters in the First Amendment area dissented in an opinion authored by Souter, who suggested that this type of zoning restriction bear a First Amendment label of its own. “If we called it content correlated,” he wrote, “we would not only describe it for what it is, but keep alert to a risk of content-based regulation that it poses.”153 That risk, he wrote, lies in the fact that the opportunity for government censorship is greater when a law precisely identifies particular content.154 Picking up the argument to which Brennan alluded in his Renton dissent, Souter wrote that adult speech “refers not merely to sexually explicit content, but to speech reflecting a favorable view of *

160

being explicit about sex and a favorable view of the practices it depicts; a restriction on adult content is thus also a restriction turning on a particular viewpoint, of which the government may disapprove.”155

This is a wide conceptualization of what constitutes a viewpoint.156 Sexually explicit content implicitly transmits a favorable view of being explicit about sex, the argument goes. By that reasoning, then, restricting sexually explicit content actually constitutes unconstitutional viewpoint discrimination. Echoing his dissent in Pap’s A.M., Souter, however, wrote that the risk of viewpoint discrimination these zoning ordinances pose was “subject to a relatively simple safeguard.”157 If combating secondary effects was truly the reason for the regulation, he wrote, then government should show by empirical evidence that the effects exist and that the zoning can be expected to combat them without eliminating the expression itself. “The weaker the demonstration of facts distinct from disapproval of the ‘adult’ viewpoint, the greater the likelihood that nothing more than condemnation of the viewpoint drives the regulation,” he argued.158 For Souter, then, government can permissibly suppress the “adult viewpoint,” but only if the regulation can be proven to target secondary effects and is not motivated merely by disapproval. Implicit in Souter’s argument, then, is the position that viewpoint discrimination is determined by a close evaluation of government’s purpose. Here, he said, the 1977 survey did not sufficiently support the city’s policy and, thus, “we are a very far cry from any assurance against” viewpoint-based regulation.159

To summarize, on balance it has been the more liberal justices in these secondary effects cases who have articulated a wide conceptualization of “viewpoint” and shown an unwillingness to defer to government. These justices have sought to impose a strong evidentiary burden on government to justify regulations and have closely scrutinized a government’s asserted neutral purpose. More conservative justices, on the other hand, have arguably relegated non-obscene sexual expression to a lower rung on the constitutional ladder. In ruling that facially content-based laws can be labeled content neutral if the government’s purpose is to combat secondary effects, these justices have been deferential in their evaluation of government’s purpose and in their demand for evidence to justify a law’s rationale. An approach that better conceptualizes the viewpoint and content concepts and that lays down criteria for evaluating a regulation’s *

161

purpose or intent would force justices to review a regulation on the same terms. Doing so would provide more coherence and consistency to the Court’s speech discrimination principles, which should thus lessen the disagreement among justices and the contradictions in the case law.

RESTRICTIONS ON RELIGIOUS EXPRESSION

In a controversial line of cases, the Court has had to decide how to classify exclusions of religious expression from limited public forums.160 Governmental actors, claiming that they are seeking to avoid an Establishment Clause violation, have argued that barring religious expression is permissible content discrimination, that the subject or topic of religion has legitimately been eliminated from the forum.161 The Court, however, in sometimes badly divided decisions, has found otherwise, ruling that the exclusion actually constitutes unconstitutional viewpoint discrimination.

These cases have thus involved a collision of two First Amendment clauses, the Speech Clause and the Establishment Clause.

162

Scholars almost uniformly regard the Court’s Establishment Clause jurisprudence as complex and confusing.

163

Any attempt to capture it or to provide coherence is well outside the present discussion. At the risk of *162 oversimplifying the tangle, however, it seems fair to posit that the divide on the Court in two of the three cases to be discussed here arguably at its roots reflected a disagreement among the Rehnquist Court’s conservative and liberal voters over government’s proper relationship with religion. A strong bloc of justices on the Rehnquist Court—Thomas, Scalia, Kennedy and Rehnquist, occasionally joined by O’Connor

164

—argued for a narrow, or minimalist, view of the Establishment Clause. Under that view, the government has a fairly free hand in making voluntary accommodations for religious groups.

165

Neutrality becomes the cardinal principle: Private religious groups are permitted to receive governmental aid as long as that aid is equally available to nonreligious groups.

166

The Rehnquist Court’s more liberal voters, however, rejected that view, instead arguing that the Establishment Clause demands a firmer wall of separation between church and state.

167

The division of justices in the limited public forum cases discussed here arguably supports the proposition that the justices’ preferences for how government should treat religion have colored their determination of what amounts to viewpoint discrimination in these cases. Table 3 shows the lineup of justices in the cases and the frequency with which they have supported the liberal position in the First Amendment and civil liberties areas. The First Amendment category includes justices’ votes in both speech and religion cases. In each case below, the majority ruled that excluding religious expression from a forum amounted to viewpoint discrimination.

The table can be interpreted this way: In

Rosenberger

v. Rector and Visitors of the University of Virginia

, a five-justice majority—Kennedy, O’Connor, Rehnquist, Scalia and Thomas—voted to uphold the free speech claim of a Christian student publication. Kennedy authored the majority opinion. Four justices—Souter, Breyer, Ginsburg and Stevens—dissented in the case and voted against the publication’s free speech claim. Souter authored the dissenting opinion. The figures *164 indicate the percentage of cases in which the justice took the liberal position in the respective issue area. Kennedy, for instance, has voted liberally in First Amendment cases—that is, he has supported the individual against the government—54.4% of the time during his duration on the Court. In civil liberties cases, he has taken the liberal position 37.7% of the time.

Table 3. Votes of Justices in Cases Involving Restrictions on Religious Expression and the Aggregate Liberal Voting Records of Those Justices in Relevant Issue Areas

AGGREGATE LIBERAL VOTING RECORDS OF JUSTICES IN RELEVANT ISSUE AREAS (IN PERCENTAGES)

FIRST AMENDMENT
CIVIL LIBERTIES

CASE: LAMB’S CHAPEL V. CENTER MORICHES UNION FREE SCHOOL DISTRICT (1993)

Majority (For Free Speech Claim)

White (author)

38.1
42.5

Blackmun
56.8
53

O’Connor
46.1
36.8

Rehnquist
24.1
22.6

Souter
78.2
62.9

Stevens
69.4
65.3

Concurring (For Free Speech Claim)

Kennedy (author)
54.4
37.7

Scalia (author)
28.4
27.6

Thomas
27.7
23.7

CASE: ROSENBERGER V. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA (1995)

Majority (For Free Speech Claim)
Kennedy (author)
54.4
37.7

O’Connor
46.1
36.8

Rehnquist
24.1
22.6

Scalia
28.4
27.6

Thomas
27.7
23.7

Dissent (Against Free Speech Claim)

Souter (author)
78.2
62.9

Breyer
61.8
61.3

Ginsburg
76.3
66.3

Stevens
69.4
65.3

CASE: GOOD NEWS CLUB V. MILFORD CENTRAL SCHOOL (2001)

Majority (For Free Speech Claim)

Thomas (author)

27.7
23.7

Kennedy
54.4
37.7

O’Connor
46.1
36.8

Rehnquist
24.1
22.6

Scalia
28.4
27.6
Concurring (For Free Speech Claim)
Breyer
61.8
61.3
Dissent (Against Free Speech Claim)
Stevens (author)
69.4
65.3

Souter (author)
78.2
62.9

Ginsburg
76.3
66.3

The Court has embraced a wide definition of both “viewpoint” and “discrimination” in these cases, resulting in decisions that have broadly accommodated religious expression. However, two of the cases, Rosenberger v. Rector and Visitors of the University of Virginia

168

and Good News Club v. Milford Central School,

169

have produced biting dissents, with the Court’s otherwise more liberal voters arguing that the majority was defining those terms too loosely. Again, inconsistent definitions and methods of analysis have enabled the justices’ disagreements. In Rosenberger, as will be seen, the majority emphasized the effect of the regulation to declare it viewpoint discriminatory. The dissent, on the other hand, countered that the purpose of the regulation should control the resolution of the case. A proposal that requires the Court to look at face, purpose, and effect would thus result in less malleable concepts and more consistent adjudication of cases.

As previously indicated, the lineup of justices in Rosenberger and Good News Club generally reflects the divide on the Rehnquist Court over government’s relationship with religion. And, as with the abortion protest cases, the justices’ votes in Rosenberger and Good News Club run counter to their typical voting direction: The otherwise more liberal voters in the First Amendment area sided with the government while the more conservative voters sided with the religious group claiming a First Amendment violation.

In the first of the three cases to be discussed here, though, Lamb’s Chapel v. Center Moriches Union Free School District,

170

the Court unanimously agreed that a restriction on religious expression was viewpoint discriminatory.

171

A school district permitted the use of its facilities *165 when school was not in session for “social, civic, and recreational uses” but determined that “school premises shall not be used by any group for religious purposes.”

172

Lamb’s Chapel, an evangelical church, sought permission to use school property to show a six-part film series about child rearing and family values. When the district denied its request, the church sued.

In his opinion for the Court,

173

Justice White conceded that the school district policy applied equally to all uses of school property for religious purposes: All religious groups were barred. But White wrote that the fact that all religions and all uses for religious purposes were treated alike did not answer the critical question of whether it amounted to viewpoint discrimination to exclude all discussion of family issues and child rearing from a religious standpoint.

174

The Court noted that the subject matter of child rearing and family values was “otherwise permissible.”

175

The film series was denied, in other words, not because it could not be classified as a legitimate use of property for social or civic purposes but “solely because the series dealt with the subject from a religious standpoint.”

176

Defining viewpoint, then, as a standpoint or perspective on a subject, the Court ruled barring the film amounted to viewpoint discrimination.

177

*166 A majority arguably took an even wider approach to viewpoint discrimination two years later in Rosenberger v. Rector and Visitors of the University of Virginia.

178

A University of Virginia policy authorized payment from the Student Activities Fund for the printing costs of student publications but prohibited payment for any publication that “primarily promotes or manifests a particular belief in or about a deity or an ultimate reality.”

179

Wide Awake Productions published a student newspaper titled Wide Awake: A Christian Perspective at the University of Virginia. The editors declared that the paper’s mission was “to challenge Christians to live, in word and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means.”

180

The university denied the editors’ request for funding on the grounds that the paper was a “religious activity” within the meaning of the policy.

181

The students sued, and, in a 5-4 decision, the Court ruled that the denial of funding was viewpoint discriminatory. The university candidly acknowledged that any ideologically driven attempt to suppress a particular point of view would be “presumptively unconstitutional.”

182

But that was not the case here, the university insisted, because the policy permissibly drew lines based on content and not viewpoint.

183

Writing for the Court, Justice Kennedy admitted that the distinction between content and viewpoint discrimination was “not a precise one” and that it was “something of an understatement to speak of religious thought and discussion as just a viewpoint.”

184

Nevertheless, the Court ruled, the university’s objection to Wide Awake was properly interpreted as viewpoint discrimination. Religion may be a subject, “a vast area of inquiry,” Kennedy wrote, “but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.”

185

And that perspective, not the general subject matter, resulted in the denial of funding to Wide Awake, the Court ruled, “for the subjects discussed were otherwise within the approved category of publications.”

186

Kennedy’s reference to “subjects discussed” was somewhat cryptic, and he offered no elaboration. *167 Presumably he was referring to an observation he made earlier in the opinion that Wide Awake contained articles about racism, crisis pregnancy, and stress, among other topics.

187

Kennedy responded that the dissent’s argument that the policy was viewpoint neutral because it applied evenhandedly to “agnostics and atheists as well as … deists and theists”

188

wrongly conceptualized public debate. The majority instead offered an expansive interpretation of viewpoint discrimination. All debate is not “bipolar,” Kennedy wrote, and anti-religious speech is not the only response to religious speech.

189

If racism is a topic of debate, he hypothesized, it is “as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint.”

190

The argument, it seems, is that religious and anti-religious viewpoints are not the only ones that can be had on a given issue.

191

The majority thus looked to the effect of the regulation to find it viewpoint discriminatory. Because other viewpoints would be left unfettered, the exclusion of religious and anti-religious viewpoints amounted to viewpoint discrimination.

The majority and dissenting opinions in the case suggest that one justice’s “perspective” is another justice’s religious exhortation. Souter dissented in Rosenberger, joined by Breyer, Ginsburg and Stevens, those justices on the Rehnquist Court who argued for a stricter separation between church and state. Souter chided the majority for downplaying the evangelical character of the student newspaper. A closer look at the publication, he wrote, revealed that it did not offer a mere “religious perspective” or “Christian viewpoint,” as the majority maintained.

192

Rather, it consisted of “straightforward exhortation to enter into a relationship with God as revealed in Jesus Christ.”

193

As Souter saw it, the subject of the publication was “nothing other than the preaching of the word.”

194

And using public funds to directly subsidize that preaching, he argued, would categorically violate the Establishment Clause.

195

*168 Souter’s characterization of Wide Awake as an evangelical religious activity was dispositive of his free speech analysis as well. He wrote that it was undebatable that the university could base its funding decisions on the subject matter of student speech. The relevant inquiry, then, was whether the university was “impermissibly distinguishing among competing viewpoints.”

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In answering that question, Souter employed a different method of analysis than the majority and conceptualized a narrower debate. The majority seemed unconcerned that the university lacked an illicit purpose in its denial of funding; the Court instead focused on the operation or function of the policy and determined that its effect was to bar a perspective from debate only because it was religious.197 Souter, however, implied that disproportionate impact on a viewpoint would not render a regulation viewpoint discriminatory unless the motive for the regulation was related to viewpoint.198 Determining whether a regulation is viewpoint based, he wrote, “[T]urns on whether the burden on speech is explained by reference to viewpoint …. [T]he government’s purpose is the controlling consideration.”199 The prohibition on viewpoint discrimination, he argued, thus bars government from taking sides in debate by allowing “one message while prohibiting the messages of those who can reasonably be expected to respond.”200

Under that reasoning, Souter wrote that there was clearly no viewpoint discrimination. The university had a neutral purpose in denying funding: It barred the subject of religion in its aim to comply with the Establishment Clause. Furthermore, he argued, the university’s policy applied evenhandedly.

201

The policy denies “funding for hortatory speech that ‘primarily promotes or manifests’ any view on the merits of religion,” even those put forth by atheists or agnostics, he said.

202

Souter relied on that latter point to distinguish the Court’s holding in Lamb’s Chapel. In that case, he wrote, “religious” was understood to *169 refer only to the viewpoint of a believer, and the regulation would have allowed access to anti-religious points of view.

203

The majority in Rosenberger challenged that characterization of the Lamb’s Chapel holding,

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and at least one commentator has questioned the wisdom of putting so much importance on the distinction between access for religious and anti-religious views.

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But for Souter that was not the only, or arguably even the most important, distinction between the two cases. The regulation here, he wrote, was not being applied to deny funding “for those who discuss issues in general from a religious viewpoint,” as was the case with the denial of access in Lamb’s Chapel, “but to those engaged in promoting or opposing religious conversion and religious observances.”

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Again, what seemed dispositive for Souter was his depiction of Wide Awake as nothing more than evangelicalism. As he saw it, the church in Lamb’s Chapel wished to address child-rearing and family values—secular topics—from a religious perspective. Here, however, the paper’s subject matter was religion itself, he maintained.

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Wide Awake was religious exhortation, the “preaching of the word,” Souter concluded.

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And because all such exhortation was barred from funding, the dissent argued the university’s policy was viewpoint neutral.

Souter’s approach, then, would seem to hinge on making a distinction between discussion of a secular topic from a religious “perspective” and religious exhortation or “preaching.” That distinction arguably divided the Court again in Good News Club v. Milford Central School.

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As in Lamb’s Chapel, a school district permitted its property be used for social, civic and recreational uses but prohibited its use for religious purposes. Two adult sponsors of the Good News Club, a private Christian organization for children ages 6 to 12, sought permission to hold the club’s weekly after-school meetings in a school’s cafeteria.

210

The club described its meetings as “a fun time of singing songs, hearing a Bible *170 lesson and memorizing scripture.”

211

The school denied the request, arguing that the activities the club engaged in “were the equivalent of religious instruction itself.”

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The club challenged the denial. In a 6-3 decision, the Court ruled the club’s exclusion amounted to viewpoint discrimination.

Justice Thomas’s majority opinion pivoted on the school’s admission that it would permit discussion of the development of character and moral development from a religious perspective. “[I]t is clear,” Thomas wrote, “that the Club teaches morals and character development to children.”

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For instance, he wrote, the club instructs children to overcome feelings of jealousy and treat others well, “even if it does so in a nonsecular way.”

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The Court found Lamb’s Chapel controlling and indistinguishable. The only “inconsequential” difference, Thomas suggested, is that Lamb’s Chapel taught lessons through films while Good News Club teaches “moral lessons from a Christian perspective through live storytelling and prayer.”

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In both instances, the excluded groups sought to address a subject otherwise permissible in the forum and “religion [wa]s the viewpoint from which ideas [we]re conveyed,” the Court concluded.

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The Court’s three most liberal voters in the First Amendment area dissented.

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As in Rosenberger, the dissenting justices disagreed with the majority’s characterization of the nature of the group’s activities. In his dissent, Stevens wrote that it would be impermissible to bar religious speech about a particular topic from a religious point of view, and he used Lamb’s Chapel as his example. But the club’s activities here, he reasoned, amounted to “proselytizing religious speech.”

218

He wrote that it was clear that the school did not intend to exclude all speech from a religious point of view. “Instead, it sought only to exclude *171 religious speech whose principal goal is to ‘promote the gospel,”’ which the club’s speech did, he argued.

219

In a separate dissent, Justice Souter, joined by Justice Ginsburg, similarly agreed that the majority had mischaracterized the nature of the club. After detailing one of the club’s sample lesson plans, Souter said it was “beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion.”

220

If the majority opinion were taken literally, he said, “any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque.”

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Souter is indeed correct in saying that would be a “remarkable proposition,”

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and, presumably, the majority would not have gone that far. Then again, as one commentator has observed, an Evangelical Christian church service on a Sunday morning certainly would provide moral and character teaching.

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Under the majority’s wide conceptualization of viewpoint discrimination in Rosenberger and Good News Club, perhaps an argument could be made that the church service, too, offers a perspective on a subject otherwise permissible in the forum. In ruling that religion constitutes a viewpoint and not a subject, the Court, in other words, has arguably blurred any distinction between the content and viewpoint concepts in these cases. The dissenters have argued that a line exists, or at least should, that distinguishes religious perspectives from religious exhortation or evangelicalism. That could be a difficult line to draw and administer, and a majority of the Court has made no attempt to try it. As Professor Wojciech Sadurski noted, proselytizing talk about religion could almost always be characterized as being about something else (be it child rearing or moral development, to name just two).

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Religion, therefore, can be cast as either a subject matter or as a viewpoint, depending on what one wishes to achieve.

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The lineup of justices in Rosenberger and Good News Club suggests that those justices who believe government should be more accommodating to religion successfully cast the religious expression as a viewpoint or perspective. Those justices who argue for a stricter separation between *172 religion and government, on the other hand, fruitlessly cast the regulations as permissible restrictions on the subject of religion. The justices’ preferences toward government’s treatment of religion, it would seem, colored their conclusions. If the Court were to follow a prescribed method in determining content and viewpoint neutrality, one that better defined the terms and specified how the respective criteria should be considered, those individual preferences might have less room to steer decisions.

A CLARION CALL FOR REFORM

Political scientists would be unsurprised that the division of justices in the socially divisive cases discussed in this article largely mirrored the justices’ ideological voting behaviors. These scholars have advanced the proposition that ideology and personal preferences have a profound influence on a justice’s vote. As has been discussed, individual justices did not always perfectly meet that expectation. Chief Justice Rehnquist, for instance, though an avid opponent of Roe v. Wade, authored two opinions and joined a third that found regulations of abortion protesters to be content neutral. Three other justices, normally more conservative voters in First Amendment cases who had typically voted with the chief justice in upholding abortion restrictions, scrutinized the operation or effect of the regulations to find them content and viewpoint based. The chief justice, on the other hand, stayed true to his conservative voting record in the First Amendment area and voted to uphold the regulations. Those otherwise liberal First Amendment voters who joined Rehnquist largely ignored the effect of the regulations and instead deferred to government’s asserted purpose.

Ostensibly, the cases involving regulations of abortion protesters were free speech and not abortion cases. Yet the justices’ votes in the three cases strongly suggest that much of the Court, in fact, saw the cases presenting a collision of two constitutional rights, and those rights at issue demanded contrary liberal and conservative voting positions. Framed as a conflict between two rights, those who voted to uphold the regulations as content neutral took a liberal position on abortion rights (the votes can be seen as championing the rights of women seeking abortions) and a conservative position on the free speech rights of the protesters. The opposite is true for those who argued the regulations were content and viewpoint based: a liberal position on speech rights and arguably a conservative position on abortion rights. The cases were, at their core, about free speech; it seems plausible to argue, then, that Rehnquist was perhaps the only justice who did not allow his or her position on the abortion issue to drive the resolution of the cases.

*173 The cases involving restrictions on religious expression similarly presented contrasting liberal and conservative positions. Those who struck down the restrictions took a liberal position on free speech rights but arguably what is traditionally considered a more conservative approach to the Establishment Clause, supporting a broad accommodation of government support for religion. Those justices who voted to uphold the restrictions in Rosenberger and Good News Club, on the other hand, took the conservative position on the free speech issue but a generally liberal approach to the Establishment Clause, demanding a firmer wall of separation between church and state. Again, arguably justices allowed preferences for the non-speech issue to drive their resolution of the cases. And, as in the abortion protesters cases, the typical liberal First Amendment voters took the anti-free speech, pro-government position. Although, as will be discussed below, the dissenters had the more persuasive argument in Rosenberger and Good News Club, the two categories of cases at least raises the question whether normally liberal First Amendment voters place other liberal values (abortion rights and separation of church and state) ahead of free speech.

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The third category of cases discussed in this article—the secondary effects cases—in no way involved competing constitutional rights, and the lineup of justices generally matched the expected voting pattern. Aside from Stevens’ evolution, it has generally been the Court’s more conservative voters in the First Amendment area who have supported the secondary effects rationale and deferred to government’s asserted neutral purpose. More liberal First Amendment voters, however, have cast suspicion on the rationale in their dissents and shown an unwillingness to defer to government.

Significantly, the article shows that in reaching differing decisions ideologically divided justices have used different methods of analysis, offered different conceptualizations of key terms, and, in the secondary effects cases, demanded different evidentiary burdens. How a justice determines what counts as neutrality, the analysis suggests, can depend on the views and preferences of the decision-maker. On balance, then, the cases discussed here perhaps lend credence to an argument that content and viewpoint neutrality are not tools of analysis but often conclusions that justify decisions reached on other, ideological grounds. At the least, the lineups of justices in these cases, with some notable exceptions, allow observers to ascribe ideological preference as the primary explanation for decisions. The analysis here thus calls into question the utility of the Court’s current approach to determining content and viewpoint neutrality.

*174 A NEW WAY FORWARD

Though perhaps they overstate their case (that ideology is essentially a complete explanation of decisions), Segal and Spaeth and like-minded political scientists offer important insights about judicial decisionmaking. Justices are human beings, and accordingly there is no way to absolutely remove values and preferences from the decision making process. That said, as this article has shown, the Court’s speech discrimination principles are plagued by inconsistency and confusion. The Court’s current malleable approach thus leaves the content and viewpoint concepts especially ripe for manipulation. Because the Court does not have a uniform or agreed-upon way to determine content and viewpoint neutrality, it is arguably easier for justices to emphasize criteria and use methods to justify decisions that fit their preferences.

This article concludes, therefore, by briefly offering a suggested fix, a new method of analysis that provides more consistency. Under this approach, a court would utilize the three inquires—looking to face, purpose, and effect—that justices have only variably employed. The difference here, however, is that a court would be required to use all three, not to focus singularly on one or another. In determining neutrality, then, a court would look to the face of a regulation, its purpose or justification, and its effect or operation. Any of the three can reveal that a regulation is discriminatory.

Face

When a court examines the face of a regulation, it focuses on whether the terms of the law or regulation on their face draw distinctions based on content. In Police Department of Chicago v. Mosley,

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for example—the seminal case in which the Court articulated its concern with content-discriminatory speech regulations—the law at issue exempted “the peaceful picketing of any school involved in a labor dispute.”

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As Justice Marshall observed, the law described “permissible picketing in terms of its subject matter:”

229

All picketing was prohibited except that involving the subject of a labor dispute. When, as in Mosley, the application of a regulation turns on the content of speech, the regulation should be considered content based, regardless of the government’s purpose.

230

*175 The dissenters, then, had the upper hand in Hill v. Colorado.

231

In that case, the law prohibited anyone within 100 feet of a heath care facility from knowingly approaching within eight feet of another person, without consent, in order to engage in “oral protest, education, or counseling.”

232

As Scalia argued in dissent, “Whether a speaker must obtain permission before approaching within eight feet—and whether he will be sent to prison for failing to do so—depends entirely on what he intends to say when he gets there.”

233

Properly examining the face of the regulation in line with the proposed method here reveals the regulation is discriminatory—the application of the law turns on the content of speech.

Using this approach, the Court’s secondary effects doctrine should be overturned. As the Court has had to acknowledge, the regulations of adult theaters and businesses it has labeled content neutral using the secondary effects rationale are content based on their face.

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The Court, however, has sanitized the regulations—and contradicted language in its case law

235

—by looking past their face to emphasize the government’s asserted neutral interest in combating secondary effects. Since its birth, the doctrine has generated stinging criticism from dissenting justices and commentators. Professor Geoffrey Stone was correct when he argued that the doctrine “is … disturbing, incoherent, and unsettling.”

236

The doctrine invites litigants and lower courts to extend its rationale beyond the realm of sexual speech,

237

where it was created, and it produces confusion and uncertainty about what counts as a secondary effect and what type of secondary effect is required to excuse a facially content-based regulation.

238

This is not to suggest that municipalities are helpless in the face of whatever effects might be associated with adult theaters and businesses. As Souter argued in his dissent in City of Los Angeles v. Alameda Books, Inc., secondary effects are amenable *176 to empirical treatment.

239

Documented empirical evidence of such effects might demonstrate a compelling interest, and, combined with a regulation that is narrowly tailored, the law could be justifiable under strict scrutiny. These laws are content based on their face, however, and strict scrutiny should be the standard of review.

Purpose

Because a shrewd governmental body might successfully dress up a regulation that is intended to discriminate in neutral language, a court determining the neutrality of a regulation must also look at the regulation’s purpose or justification. The Court, in fact, has already used this method, though its overstated language has led to confusion in its jurisprudence. In Hill v. Colorado, for instance, the Court was satisfied (erroneously) that the law was neutral on its face—but the inquiry did not end there.

240

The Court evaluated the Colorado legislature’s purpose as well in determining the law was content neutral. The Court was wise to scrutinize the state’s purpose, but the method proposed here suggests the Court is wrong when it has said that the “government’s purpose [i]s the threshold consideration”

241

in determining content neutrality and that a regulation is neutral as long as it is “justified without reference to the content of the regulated speech.”

242

Government’s purpose should be one consideration in determining neutrality, not the controlling consideration. A content-neutral justification should not save a law that discriminates on its face based on content.

It should be emphasized that requiring judges to evaluate purpose is not suggesting they partake in subjective mind-reading or base holdings on mere allegations. In United States v. O’Brien, Chief Justice Earl Warren astutely warned against “hazardous” inquiries into alleged intent of legislative members.

243

The suggestion here is that judges focus on manifest purpose, which could include use of legislative history when the evidence of discriminatory purpose is overwhelming. Justice Kennedy’s documentation of legislative history in Hill v. Colorado, for *177 instance, combined with the law’s preamble and its obvious effect persuasively made the case that the law there was not neutral.

244

Similarly, Justice Stevens was convincing in arguing in his City of Erie v. Pap’s A.M. dissent that the Court is not unwisely relying on allegations or suspicions when the testimony of virtually every member of a small governing body reveals a discriminatory purpose.

245

And Justice Brennan properly scrutinized the city’s intent in City of Renton v. Playtime Theatres, Inc. when he focused in dissent on the city’s “purely speculative conclusions” to justify the law and then noted that the city added a provision to the law explaining its aim to control secondary effects only after adult theater owners brought a lawsuit.

246

The method proposed here requires courts to evaluate the manifest purpose of a regulation closely instead of deferring to a government’s asserted neutral purpose. Evidence of discrimination should preclude a finding of neutrality, even if the face of the regulation is neutral.

Effect

Finally, a court should examine the reasonable effects of a regulation. Despite facially neutral language and purported justifications, a regulation should not be considered neutral if it has a clear discriminatory impact or effect. As other scholars have argued, discriminatory effects are as offensive to First Amendment values as are discriminatory governmental purposes.

247

Scalia’s perceptive observation that legislation can “lend[] itself to use” for “invidious, thought-control purposes”

248

should inform the Court’s speech discrimination principles. The dissenters in Hill, for instance, were correct that a reasonable assessment of the law’s effects there indicated it would disproportionately restrict one type of speech: anti-abortion speech. Scalia argued that a regulation, applied at the entrance to medical facilities, “that operates only on speech that communicates a message of protest, education, or counseling … is a means of impeding speech against abortion.”

249

If the inevitable effect of a regulation—described by one commentator suitably as not just any effect “but only one which seems to be a necessary and obvious consequence of the” regulation

250

—is that it has a one-way effect of closing *178 off one side of a debate

251

or singling out a particular message, the regulation cannot be labeled neutral.

Distinguishing

Content

from Viewpoint

If evaluation of the three inquiries precludes a neutral label, a court must then clarify—again, looking to face, purpose and effect—whether the regulation is content or viewpoint based. As the Court has recognized, not all content-based restrictions are viewpoint based.

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In limited public forums and nonpublic forums, for instance, content discrimination is permissible, even expected;

253

viewpoint discrimination, however, is not.

Arguably two understandings of viewpoint discrimination can be distilled from the Court’s numerous speech discrimination cases, and those two understandings should serve as the Court’s definitions of the concept. Viewpoint discrimination exists (1) when the government discriminates against offensive, unpopular or disfavored views

254

or (2) when a competing perspective has been removed from a forum or debate.

255

Content-based restrictions that are not viewpoint based would be those that do not meet one of those two definitions. Restrictions on whole subject matters, topics or categories of speech constitute content-based but viewpoint-neutral regulations. City of Renton v. Playtime Theatres, Inc.

256

serves as an example. The law at issue applied to all theaters displaying adult content; the viewpoint of particular films did not matter.

257

This type of content-based but viewpoint-neutral regulation can be upheld.

258

On the other hand, the Court has suggested that viewpoint *179 discrimination is invalid on its face.

259

As Brennan argued in Perry Education Association v. Perry Local Educators’ Association, “Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of free speech.”

260

A viewpoint restriction negatively impacts all of the values that underlie and inform the First Amendment.

261

A finding of viewpoint discrimination, therefore, should result in per se unconstitutionality.

Drawing the line between content and viewpoint no doubt presents difficult cases. The dissenters in Rosenberger v. Rector and Visitors of the University of Virginia

262

were correct, however, that the Court muddied the water in that case. The university policy, on its face, barred funding for student publications of all religious faiths as well as agnostic or atheist perspectives. The university also had a neutral purpose. It denied funding not because it disagreed with the speech but because it sought to avoid an Establishment Clause violation.

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If such a regulation is viewpoint based, as the Court concluded, then the Court has all but obliterated the distinction between content and viewpoint. Although the Court’s wide interpretation in Rosenberger of what counts as an opposing viewpoint—a wide conceptualization of the effect the regulation would have on debate—might have superficial appeal, the ramifications of the decision are dramatic. The Court, for instance, has not extended Rosenberger’s rationale beyond religious speech. In cases decided prior to Rosenberger, the Court upheld exclusions of political speech from nonpublic forums as viewpoint neutral.

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Extending Rosenberger’s rationale would seem to imply that those cases were wrongly decided, that any restriction on political speech in a forum would be viewpoint discriminatory because apolitical viewpoints or perspectives would be left unfettered. If those decisions are correct, on the other hand, the consequence would seem to be that religious speech has more protection *180 than political speech, an odd understanding of the First Amendment in a democracy, to be sure. Moreover, if regulation of any broad subject—be it religion, politics or economics—constitutes a viewpoint regulation, the practical implication would thus seem to be that government has little control in defining the boundaries of the forums it voluntarily creates, a drastic reversal of Court precedent.

265

A more fruitful approach distinguishing content from viewpoint examines the case facts in context. If an examination of the application of the regulation in Rosenberger, for instance, revealed that Christian publications—but no other faiths—would be barred from funding, the policy would have been viewpoint discriminatory. One competing perspective, one viewpoint would have been silenced. Evidence in front of the Court actually cast doubt on the policy’s neutral effect. The Muslim Students Association (MSA) received funding because the university classified it as a cultural, as opposed to a religious, organization.

266

The MSA then used funds to publish “Al-Salam,” a publication intended to “promote a better understanding of Islam to the University Community.”

267

As Professor Nicole Casarez argued, a finding of viewpoint discrimination would have rested on a more defensible foundation had the Court emphasized the policy’s arguably discriminatory application.

268

The key when making the distinction between content and viewpoint, then, is to limit analysis of effect to actual application, if available, and, if not, reasonably predictable or inevitable effects, as described above.

CONCLUSION

A faithful application of the method proposed here would have resolved cases differently in each of the areas discussed herein. In the abortion protesters cases, a closer look at the regulations’ purpose and a careful consideration of their effects reveal their discriminatory nature. According to the method, moreover, the regulation in Hill is content based on its face. Likewise, examining a regulation’s face necessitates overturning the Court’s secondary effects doctrine. Even putting that facial discussion aside, though, the dissenting justices in the secondary effects cases properly scrutinized— rather than deferred to—the government’s asserted purposes. Finally, the method’s proposed conceptualization *181 of discriminatory effect would help resolve the Court’s debate in Rosenberger regarding the neutrality of a regulation that barred funding for any religious activity.

The proposed method would thus offer the Court more coherence and consistency, an approach that would hamper the ability of justices to emphasize criteria and use methods to justify decisions that fit their preferences. The new approach, however, obviously cannot eliminate values and preferences from the decision-making process absolutely. What it does, though, is force justices to examine closely all three inquiries (face, purpose, effect) rather than focus singularly or selectively on one or another (as so frequently happened in the cases discussed here). Ultimately, then, the new method ensures these core First Amendment concepts are better defined and less vulnerable.

But the proposed method makes no claim of infallibility. In truth, broader critiques can be directed at the Court’s development of its speech discrimination principles. Simply put, the confusion the Court has made for itself was perhaps inevitable. Language, as we know, is imprecise and complex. It is hard to define terms like “viewpoint,” “content” and “perspective” with the sort of brutal simplicity that would anticipate and resolve all of the issues that will come before the Court. Some of the contradictions of social life—that views and preferences color decision making, that we thus will have conflicting assumptions about how to conceptualize debate, that language is imprecise—inevitably have caught up with and complicated the Court’s technical legal arguments about free expression.

Footnotes

Assistant Professor, Department of Communication, Saint Louis University.

See Wilson Huhn,

Assessing the Constitutionality of Laws that are Both

Content-Based and Content-Neutral: The Emerging Constitutional Calculus, 79 IND. L.J. 801, 803 (2004).

See Clay Calvert,

Free Speech and

Content-Neutrality: Inconsistent Applications of an Increasingly Malleable Doctrine, 29 MCGEORGE L. REV. 69, 70 (1997).

See CASS SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 12 (1993).

Under strict scrutiny, a regulation must be justified by a compelling governmental interest, and it must limit expression using the least restrictive means possible. See

Sable Communications v. FCC, 492 U.S. 115, 126 (1989)

. A content-neutral restriction receives intermediate scrutiny, which requires that a restriction be unrelated to content, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication. See

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

. As will be explained, the Court’s skepticism of content-based regulations applies to regulations of private speech and of speech in public forums. In other speech contexts, the Court is more tolerant of content-based regulations.

In fact, even when the government administers a nonpublic forum, a situation in which the government has substantial control over speech, regulations on speech still must be reasonable and viewpoint neutral. See

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)

Calvert, supra note 2, at 70.

City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994)

(O’Connor, J., concurring). In cases involving free expression, law professor Daniel Farber has argued, “[W]e have particular reason to want to avoid having the judges’ ideological biases enter into the decision, lest those biases then have a distorting effect on public discourse.” DANIEL FARBER, THE FIRST AMENDMENT 37 (2003).

See generally Calvert, supra note 2; Edward Carter & Brad Clark,

Death of Procedural Safeguards: Prior Restraint, Due Process and the Elusive

First Amendment Value of Content Neutrality, 11 COMM. L. & POL’Y 225, 234 (2006); Nicole Casarez,

Public Forums, Selective Subsidies, and Shifting Standards of Viewpoint

Discrimination, 64 ALB. L. REV. 501 (2000); Leslie Gielow Jacobs,

Clarifying the

Content-Based/Content Neutral and Content/Viewpoint Determinations, 34 MCGEORGE L. REV. 595 (2003); Barry McDonald,

Speech and Distrust: Rethinking the

Content Approach to Protecting the Freedom of Expression, 81 NOTRE DAME L. REV. 1347 (2006); Dan Kozlowski, The Malleable Viewpoint/Content Distinction and its Consequences for Free Expression (Sept. 27, 2006) (unpublished Ph.D. dissertation, University of North Carolina-Chapel Hill).

See

Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 831 (1995)

(“The distinction [between content and viewpoint discrimination] is not a precise one.”);

Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994)

(“Deciding whether a particular regulation is content-based or content-neutral is not always a simple task.”).

Susan Ehrmann, Note,

Lamb’s Chapel v. Center Moriches Union Free School District:

Creating Greater Protection for Religious Speech Through the Illusion of Public Forum Analysis, 1994 WIS. L. REV. 965, 994.

See, e.g, Huhn, supra note 1, at 853-54; Jamin Raskin & Clark LeBlanc,

Disfavored Speech About Favored Rights:

Hill v. Colorado, the Vanishing Public Forum and the Need for an Objective Speech Discrimination Test, 51 AM. U.L. REV. 179, 220-26 (2001).

The meaning of “manipulation” as used in this article is that the ill-defined and inconsistent applications of the content and viewpoint terms leave them susceptible for use in what scholars have called “outcome-driven decisions.” Jacobs, supra note 8, at 598. At the least, the Court’s jurisprudence in the areas studied here leaves itself open to the perception that justices in these cases are able to pick and choose evidence and to emphasize criteria—to manipulate, as in move or arrange—in order to justify decisions they prefer. For example, a justice who generally favors abortion rights defers to government’s asserted neutral purpose in a decision that upholds a regulation of abortion protesters. But a justice who opposes abortion champions the speech rights of protesters by looking to that same regulation’s effect to make the case the regulation is unconstitutionally discriminatory. The same law is under review, and the justices evaluate the law applying the same constitutional concepts—yet the justices are able to use different approaches to justify different decisions. This manipulation need not be perceived as cynical. Our values and views undoubtedly color our decision making. This article explores whether one viable explanation for the splintered Court in these cases is that the fluid and malleable terms leave the cases especially vulnerable to manipulation.

This is not to suggest that all legal scholars categorically ignore the role of ideology and personal preferences in judicial decision making. See, e.g., Cass Sunstein et al.,

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

, 90 VA. L. REV. 301 (2004). Political scientists, however, contend the legal community too often mistakenly depicts justices as neutral, principled decision makers. Ideology is the driving force of decision making, these political scientists say. See Lee Epstein & Jeffrey Segal, The Rehnquist Court and the First Amendment:

Trumping the

First Amendment?, 21 WASH. U. J.L. & POL’Y 81, 86 (2006). Noted appellate Judge Richard Posner recently buttressed the point political scientists make: “The literature on the personal factor in judging still has not been integrated into the dominant [legal] academic commentary on the Supreme Court. That commentary continues to pretend that the Justices are engaged in a primarily analytical exercise that seeks ‘correct’ answers to technical legal questions.” Richard Posner, The Supreme Court, 2004 Term:

Foreword: A Political Court

, 119 HARV. L. REV. 31, 49 (2005). It should be noted that critical legal scholars similarly contend that law is best explained in terms of the political preferences of justices. See MATTHEW BUNKER, CRITIQUING FREE SPEECH 19 (2001).

JEFFREY SEGAL & HAROLD SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED (2002) [hereinafter SEGAL & SPAETH, REVISITED]; JEFFREY SEGAL & HAROLD SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993) [hereinafter SEGAL & SPAETH, ATTITUDINAL MODEL].

SEGAL & SPAETH, REVISITED, supra note 15, at 48-85.

Tracey George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323, 324 (1992). A 1999 San Francisco Chronicle article quoted Justice Clarence Thomas telling a delegation of writers, “I just follow the law, so it doesn’t make any difference what my opinions are.” Leah Garchik, Freedom of Conversation, SAN FRANCISCO CHRON., Oct. 25, 1999, at E11.

SEGAL & SPAETH, REVISITED, supra note 15, at 86.

Id.

Id. at 87.

Id. (citing PAUL EDWARDS, THE ENCYCLOPEDIA OF PHILOSOPHY 420 (1972)).

Id.

Id. (citing Karl Llewellyn, Some Realism About Realism— Responding to Dean Pound, 44 HARV. L. REV. 1237 (1931)).

Id. at 88.

Political scientist Lawrence Baum explained: “The legal ambiguity of cases allows … justices to provide legal justification for the decisions they prefer. Even if justices consciously seek only to interpret the law properly, their ‘rooting interests’ tend to steer them toward the interpretation that is most consistent with their policy preferences.” LAWRENCE BAUM, THE SUPREME COURT 119 (6th ed. 1998).

See id. at 125.

Id.

SEGAL & SPAETH, ATTITUDINAL MODEL, supra note 15, at 69.

Id.

See also C. HERMAN PRITCHETT, THE ROOSEVELT COURT (1948); DAVID ROHDE & HAROLD SPAETH, SUPREME COURT DECISION MAKING (1976); GLENDON SCHUBERT, THE JUDICIAL MIND (1965).

See, e.g., Donald Songer & Stefanie Lindquist, Not the Whole Story: The Impact of Justices’ Values on Supreme Court Decision Making, 40 AM. J. POL. SCI. 1049 (1996).

See, e.g., CORNELL CLAYTON & HOWARD GILLMAN (eds.), SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES (1999).

An important caveat: This article does not mean to imply that ideology is the only factor that determines Court decisions. Rather, the suggestion here is that insights from political science research might offer one viable explanation for the badly divided Court so often seen in these socially divisive cases involving content and/or viewpoint discrimination.

These cases were identified using Westlaw and Lexis-Nexis Academic searches and an examination of the scholarly literature.

BAUM, supra note 26, at 119.

LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS (4th ed. 2007).

It is true that aggregating a justice’s voting record elides the subtleties of legal issues and the nuances of particular factual situations (a justice may champion commercial speech but disdain cross burning, for instance). As an example, Justice Anthony Kennedy wrote the majority opinion, joined by Justice Thomas, in United States v. Playboy Entertainment Group, a case in which the Court struck down a law that required cable operators who provided channels “primarily dedicated to sexually-oriented programming” either to “fully scramble or otherwise fully block” those channels or to time-channel them.

529 U.S. 803, 806 (2000)

. As will be discussed, Kennedy and Thomas have voted to uphold restrictions on sexually oriented businesses under the Court’s controversial secondary effects doctrine. A justice’s aggregated voting record, then, might not usefully predict a justice’s vote in every case involving every factual situation. Aggregating votes does, however, usefully provide an indication of a justice’s overall voting tendency. And, as Baum argued, “there is considerable ideological consistency in [justices’] positions across issues.” BAUM, supra note 26, at 127.

Jeffrey Segal and Harold Spaeth are two of the four professors.

EPSTEIN ET AL., supra note 38, at 518.

The source for the voting behavior data is the Original U.S. Supreme Court Judicial Database, available at http:// www.as.uky.edu/polisci/ulmerproject/sctdata.htm.

EPSTEIN ET AL., supra note 38, at 537.

As one political scientist has explained, “The preference of justices, as reflected in their votes and opinions, may be understood in ideological terms…. [M]ost issues that the Court decides do have clearly defined conservative and liberal sides.” BAUM, supra note 26, at 151-52. Not all issues do, of course. A boundary dispute between two states, for instance, does not have an obvious liberal and conservative side. It is also true that not all free speech decisions neatly split the justices on a liberal/conservative divide. The author therefore fully recognizes the pitfalls of such labeling. To speak colloquially, using the liberal and conservative terms paints in black and white instead of a nuanced shade of gray. Remember, though, that the table presents a justice’s overall voting tendency. Dozens of First Amendment decisions reveal, for instance, that Justice John Paul Stevens has supported the First Amendment claimant overwhelmingly more frequently than Justice Thomas. Moreover, the analysis that follows is grounded in an important body of political science research that utilizes the liberal and conservative terms to assess a justice’s voting behavior. The article borrows insights from an existing model—the attitudinal model—to apply to the three areas of law under study here. The database the Compendium uses as the source of its tables is a widely used resource in political science scholarship. See supra note 42 and accompanying text.

Those areas are criminal procedure, civil rights, First Amendment, due process, privacy, attorneys, unions, economics, federal taxation, federalism and judicial power.

The attorneys issue area includes cases involving attorneys’ fees, admission to and removal from the bar, and disciplinary matters.

The authors defined the First Amendment issue area as “guarantees contained therein.” EPSTEIN ET AL., supra note 38, at 537.

Id.

410 U.S. 113, 153 (1973)

During the Reagan administration, opposition to abortion became, in effect, a litmus test in selecting men and women for the federal bench. MELVIN UROFSKY & PAUL FINKELMAN, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES 965 (2d ed. 2002).

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 944 (1992)

(Rehnquist, C.J., concurring and dissenting).

Id. at 846. In Casey, four justices—William Rehnquist, Antonin Scalia, Thomas and Byron White—argued that Roe should be abandoned.

See generally William Lee, The

Unwilling Listener:

Hill v. Colorado’s Chilling Effect on Unorthodox Speech, 35 U.C. DAVIS L. REV. 387 (2002).

512 U.S. 753 (1994)

519 U.S. 357 (1997)

530 U.S. 703 (2000)

EPSTEIN ET AL., supra note 38, at 537.

See, e.g., TINSLEY YARBROUGH, THE REHNQUIST COURT AND THE CONSTITUTION 267 (2000) (arguing that Justice O’Connor proved to be much less predictable than her appointing president “no doubt would have preferred”).

As discussed, characterizations of the justices’ voting records as liberal or conservative are based on the voting data presented in The Supreme Court Compendium. See supra notes 39-47 and accompanying text.

See

Stenberg v. Carhart,

530 U.S. 914 (2000)

(Rehnquist, C.J., dissenting);

Webster v. Reprod. Health Serv., 492 U.S. 490 (1989)

;

Harris v. McRae, 448 U.S. 297 (1980)

530 U.S. 914 (2000).

Id. at 953 (Scalia, J., dissenting).

Although Kennedy co-authored the decision in Casey that reaffirmed Roe’s “essential holding,” as the table demonstrates he has otherwise generally voted conservatively in privacy cases.

512 U.S. 753 (1994).

Id. at 762.

491 U.S. 781 (1989)

512 U.S. at 763

(internal quotations omitted).

Id.

See Calvert, supra note 2, at 96.

The Court held that there were “obvious differences” between an injunction and a generally applicable ordinance, and the traditional test of intermediate scrutiny therefore was not “sufficiently rigorous.”

512 U.S. at 764-65.

Because injunctions carry greater risks of censorship and discriminatory application, the Court found that the standard when evaluating a content-neutral injunction should be whether the injunction “burden[s] no more speech than necessary to serve a significant government interest.” Id. at 765. Rehnquist said that test was more rigorous than intermediate scrutiny but less demanding than strict scrutiny. Using the new standard, the Court upheld the limited noise restrictions and the thirty-six-foot buffer zone around the clinic entrance and driveway but struck down the remaining provisions of the injunction.

512 U.S. at 785

(Scalia, J., concurring in the judgment in part and dissenting in part).

Id. (Scalia, J., concurring in the judgment in part and dissenting in part).

Rehnquist’s opinion did not address Scalia’s accusation that a preference for abortion colored the majority’s decision.

512 U.S. at 794

(Scalia, J., concurring in the judgment in part and dissenting in part) (emphasis in original).

Id. at 792-93 (Scalia, J., concurring in the judgment in part and dissenting in part).

Id. at 795 (Scalia, J., concurring in the judgment in part and dissenting in part).

Id. (Scalia, J., concurring in the judgment in part and dissenting in part).

In addition, he appended several more pages of the transcripts to his opinion. Id. at 815-20 (Scalia, J., concurring in the judgment in part and dissenting in part).

Id. at 796-97 (Scalia, J., concurring in the judgment in part and dissenting in part) (emphasis in original). In one of the exchanges, for example, a defendant asked the trial judge, “When you issued the Injunction did you determine that it would only apply to—that it would apply only to people that were demonstrating that were pro-life?” The judge responded, “In effect, yes.” Id. at 796 (Scalia, J., concurring in the judgment in part and dissenting in part).

The Court reviewed another injunction-imposed buffer zone three years later in Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997). In that case, the Court simply relied on Madsen to find, by a 6-3 vote, the injunction content neutral. The injunction at issue in Schenck included a provision that permitted two abortion protesters inside a buffer zone to have non-threatening conversations with individuals entering or leaving the clinic provided the protesters would “cease and desist” if a person with whom they wished to speak indicated a desire to end the conversation. Id at 384. The protesters argued the provision was content-based. The Court, however, again drew on the speech/conduct distinction it had articulated in Madsen to reject their argument. Their prior conduct justified any restriction on speech, the Court reasoned. Scalia dissented, again joined by Kennedy and Thomas. Scalia did not argue, as he had in Madsen, that the injunction was viewpoint based. Instead, he chided the majority for, as he saw it, exceeding its authority by elevating interests not put before it to justify the injunction. Scalia argued it was patently obvious that the “cease and desist” provision was issued to protect patients from unwanted conversations. The majority had questioned whether that interest was valid but nevertheless upheld the injunction. Scalia said the majority’s opinion was alarming and that the injunction should have been declared unconstitutional. Id. at 391 (Scalia, J., dissenting).

530 U.S. 703 (2000).

Id. at 708.

Id. at 723.

By comparison, the Court has generally treated restrictions on activities such as picketing and soliciting to be content neutral, reasoning that the restrictions do not turn on the viewpoint or subject matter of speech. See, e.g.,

United States v. Kokinda, 497 U.S. 720 (1990)

;

Frisby v. Schultz, 487 U.S. 474 (1988)

;

United States v. Grace, 461 U.S. 171 (1983)

. The majority appeared to take that approach in Hill. Although acknowledging that what it saw as a facially content-neutral law might sometimes require a court to “review the content of the statements made by a person” to determine if they constituted oral protest, education, or counseling, the majority concluded the “kind of cursory examination that might be required” did not render the law content based.

530 U.S. at 721-22

Id. at 719 (internal quotations and citation omitted).

Id.

Id. at 720.

“The law imposes content-based restrictions on speech by reason of the terms it uses, the categories it employs, and the conditions for its enforcement.” Id. at 766 (Kennedy, J., dissenting).

“The legislature’s purpose to restrict unpopular speech should be beyond dispute.”

Id. at 768 (Kennedy, J., dissenting).

The preamble stated that “the exercise of a person’s right to protest or counsel against certain medical procedures must be balanced against another person’s right to obtain medical counseling and treatment in an unobstructed manner.” Id. (Kennedy, J., dissenting) (emphasis added).

530 U.S. at 768

(Kennedy, J., dissenting).

Id. at 769 (Kennedy, J., dissenting). The majority responded that the law would also apply to the Court-praising speaker.

Id. at 744 (Scalia, J., dissenting).

Id. at 748 (Scalia, J., dissenting). Scalia also wrote that the law was content based on its face even though facially it did not distinguish between subjects or viewpoints. “Whether a speaker must obtain permission before approaching within eight feet—and whether he will be sent to prison for failing to do so—depends entirely on what he intends to say when he gets there,” he argued. Id. at 742 (Scalia, J., dissenting).

Id. at 741 (Scalia, J., dissenting).

Id. at 791 (Kennedy, J., dissenting).

Id. (Kennedy, J., dissenting).

Id. at 792 (Kennedy, J., dissenting).

Id. at 768 (Kennedy, J., dissenting).

100

Seana Valentine Shiffrin,

Speech, Death and Double Effect

, 78 N.Y.U. L. REV. 1135, 1148 (2003).

101

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)

(quoting

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976)

102

427 U.S. 50 (1976)

103

475 U.S. 41 (1986)

104

529 U.S. 277 (2000)

105

535 U.S. 425 (2002)

106

427 U.S. 50 (1976).

107

Other regulated uses included adult bookstores, cabarets, hotels or motels, pawnshops, pool or billiard halls, public lodging houses, and shoeshine parlors. Id. at 52 n.3.

108

Stevens wrote, “[F]ew of us would march our sons and daughters off to war to preserve the citizen’s right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice.” Id. at 70.

109

Id. at 71 n.34.

110

Id. at 85-86 (Stewart, J., dissenting).

111

475 U.S. 41 (1986).

112

FARBER, supra note 7, at 140.

113

475 U.S. at 47

114

Id. (emphasis in original). The Court found that the law was designed to prevent crime, protect the city’s retail trade, maintain property values, and generally “protect and preserve” the quality of life. Id. at 48.

115

Id. at 47.

116

391 U.S. 367, 383 (1968)

117

But see

Cornelius v. NAACP Legal Defense and Educational Fund, Inc

., 473 U.S. 788 (1985), a nonpublic forum case decided just one year before Renton, in which a plurality of the Court remanded a case to determine “whether the exclusion of respondents was impermissibly motivated by a desire to suppress a particular point of view.” Id. at 812-13.

118

475 U.S. at 48

119

Blackmun, who had dissented in American Mini Theatres, concurred in the result in Renton but without authoring an opinion. It, therefore, is unclear why he changed his position. Stewart, who had written a dissenting opinion in American Mini Theatres, had been replaced on the Court by O’Connor in 1981. O’Connor proved to be more conservative than Stewart in the First Amendment area, and she joined the majority opinion here in Renton.

120

Id. at 57 (Brennan, J., dissenting).

121

Id. (Brennan, J., dissenting).

122

In fact, “[Both] the magistrate and the district court recognized that many of the stated reasons for the ordinance were no more than expressions of dislike for the subject matter,” he wrote. Id. at 59 (Brennan, J., dissenting) (internal quotation and citation omitted).

123

Id. at 60 (Brennan, J., dissenting).

124

Id. at 62 (Brennan, J., dissenting) (“[T]he circumstances here strongly suggest that the ordinance was designed to suppress expression.”).

125

Id. at 56 n.1 (quoting Geoffrey Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-matter Restrictions, 46 U. CHI. L. REV. 81, 111-12 (1978)) (Brennan, J., dissenting).

126

529 U.S. 277 (2000).

127

Id. at 283.

128

Id. at 284.

129

391 U.S. 367 (1968)

. In O’Brien, the Court found government regulation of symbolic speech to be permissible if the regulation is within the constitutional power of government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction is no greater than is essential to the furtherance of that interest. Id. at 377. In subsequent cases the Court held the O’Brien standard is essentially synonymous with the intermediate scrutiny standard applied to content-neutral regulations. See

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 299 (1984)

130

529 U.S. at 290

(“It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity.”).

131

In the preamble, the city council stated that it was adopting the law:

[F]or the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.

Id.

132

The state supreme court had ruled that the preamble’s language meant that “one purpose of the ordinance was to combat negative secondary effects” associated with nude dancing. Id. (quoting

Pap’s A.M. v. City of Erie, 553 Pa. 348, 359 (1998)

133

529 U.S. at 292

134

Id. at 309 (Scalia, J., concurring in the judgment). Even if Erie had singled out nude dancing for regulation, he would have found the law constitutional unless evidence clearly demonstrated that the law targeted the “communicative character of nude dancing.” Id. at 310.

135

See, e.g.,

Hill v. Colorado, 530 U.S. 703, 744 (2000)

(Scalia, J., dissenting).

136

He wrote that there was no need to identify any “‘secondary effects’ associated with nude dancing that the city could properly seek to eliminate …. The traditional power of government to foster good morals, and the acceptability of the traditional judgment that nude public dancing itself is immoral, have not been repealed by the First Amendment.”

529 U.S. at 310

(Scalia, J., concurring in the judgment).

137

Id. at 319 (Stevens, J., dissenting).

138

Id. at 326 (Stevens, J., dissenting) (internal quotations and citation omitted).

139

“As its preamble forthrightly admits, the ordinance’s ‘purpose’ is to ‘limit’ a protected form of speech.” Id. at 327 (Stevens, J., dissenting).

140

The plurality dismissed the evidence from the council members on the ground that it “will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Id. at 330 n. 16 (citing

United States v. O’Brien, 391 U.S. 367, 383 (1968)

) (Stevens, J., dissenting). Stevens countered that in O’Brien the Court warned against relying on the assumption that illicit motive was behind the regulation and the uncertainty of deciphering the intent of a body as large as Congress. Neither consideration was present in Pap’s A.M.: “We need not base our inquiry on an ‘assumption,’ nor must we infer the collective intent of a large body based on the statements of a few, for we have in the record the actual statements of all the city council members who voted in favor of the ordinance.” Id.

141

Id. at 329 (Stevens, J., dissenting).

142

Id. at 331 (Stevens, J., dissenting).

143

A government needs to show “demonstrated fact, not speculative supposition,” which is all the city had done here, he argued.

529 U.S. at 314

(Souter, J., concurring in part and dissenting in part). The plurality responded that O’Brien did not demand such an evidentiary showing. Id. at 299.

144

Id. at 317 (Souter, J., concurring in part and dissenting in part).

145

535 U.S. 425 (2002).

146

The law prohibited the location of adult businesses within 1,000 feet of each other or within 500 feet of any religious institution, school or public park.

147

In such establishments, a single proprietor “combines an adult bookstore, selling books, magazines, and videos, with an adult arcade, consisting of open viewing booths, where potential purchasers of videos can view them for a fee.”

535 U.S. at 454

(Souter, J., dissenting).

148

535 U.S. at 442

149

Id. at 436.

150

Id. at 448 (Kennedy, J., concurring in the judgment).

151

Id. (Kennedy, J., concurring in the judgment). “As a matter of common experience, these sorts of ordinances are more like a zoning restriction on slaughterhouses and less like a tax on unpopular newspapers.” Id. at 449 (Kennedy, J., concurring in the judgment).

152

Id. at 453 (Kennedy, J., concurring in the judgment).

153

Id. at 457 (Souter, J., dissenting).

154

Id. (Souter, J., dissenting).

155

Id. (Souter, J., dissenting).

156

Indeed, this wide conceptualization could arguably justify the position that regulations of obscenity are viewpoint based, although Souter did not make that suggestion in his dissent.

157

535 U.S. at 547 (Souter, J., dissenting).

158

Id. at 458 (Souter, J., dissenting).

159

Id. at 466 (Souter, J., dissenting).

160

The Court has identified three kinds of forums: traditional, limited and nonpublic. Traditional public forums are government-owned properties that the government constitutionally must make available for speech. Examples include streets or parks. See

Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939)

. In these forums, content-based restrictions must pass strict scrutiny; content-neutral restrictions must pass intermediate scrutiny. The government has more flexibility in regulating speech when it creates a forum for expression. A limited public forum is property that the government intentionally opens up for speech. A state university, for instance, creates this type of forum when it permits student groups to meet in campus facilities. Government is responsible for defining the scope of a limited public forum; a content distinction is permissible, then, when the government defines the forum’s boundaries. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983). A nonpublic forum is property that is not by tradition or designation a forum for expression.

460 U.S. at 46.

The government has the most control over speech in these forums; any speech restrictions merely must be reasonable and viewpoint neutral. See KENT MIDDLETON ET AL., THE LAW OF PUBLIC COMMUNICATION 55-57 (6th ed. 2003).

161

Government can bar a class of speakers or speech based on its subject or topic (if the government deems the subject or topic outside the purposes of the forum) in a limited public forum as long as the exclusion, as in nonpublic forums, is reasonable and viewpoint neutral. See Casarez, supra note 8, at 523.

162

The First Amendment to the Constitution reads: “Congress shall make no law respecting an establishment of religion … or abridging the freedom of speech, or of the press…”

U.S. CONST

. amend. I.

163

As one scholar put it, “From a lawyer’s point of view, the Establishment Clause may be the most frustrating part of First Amendment law. The cases are a tangle of divergent doctrines and seemingly conflicting results. The Court seems unable to settle on a governing test, and what efforts it has made in that direction often turn out to be maddeningly vague and unhelpful.” FARBER, supra note 7, at 275.

164

O’Connor championed her endorsement test in Establishment Clause cases, which “focuses on whether government action would be perceived by a reasonable observer as endorsing religion or a particular religion.” Abner Greene, The

Apparent Consistency of Religion Clause Doctrine

, 21 WASH. U. J.L. & POL’Y 225, 226 (2006).

165

See FARBER, supra note 7, at 295.

166

See Jason Manning, Comment,

Good News Club v. Milford Central School:

Viewpoint Discrimination or Endorsement of Religion?, 78 NOTRE DAME L. REV. 833, 877 (2003).

167

This divide on the Court was evident in

Agostini v. Felton

, 521 U.S. 203 (1997), in which the five justices mentioned herein held that it was permissible to send public teachers into parochial schools to offer special educational programs for low-income students. Breyer, Ginsburg, Souter and Stevens dissented, the same lineup of justices who dissented in Rosenberger v. Rector and Visitors of the University of Virginia,

515 U.S. 819 (1995)

. See infra notes 178-208 and accompanying text.

168

515 U.S. 819 (1995).

169

533 U.S. 98 (2001)

170

508 U.S. 384 (1993)

171

Widmar v. Vincent

, 454 U.S. 263 (1981), decided twelve years before Lamb’s Chapel, the Court ruled that a university policy that barred religious groups from conducting meetings in school facilities constituted unconstitutional content discrimination. The Court held that by allowing other student groups to meet on campus the university had created a “forum generally open to student groups” and thus was obligated to justify any exclusions. Id. at 275. Writing for the Court, Justice Lewis Powell said the ban on religious discussion and worship was a content-based restriction that would have to pass strict scrutiny, which it failed. Id. at 271. In a concurring opinion, Justice Stevens worried that the Court’s reliance on content discrimination could “undermine the academic freedom of public universities.” Id. at 278 (Stevens, J., concurring in judgment). Although Stevens argued a university could legitimately regard some subjects or activities as more relevant to its educational mission, a university could not, he wrote, discriminate based on viewpoint in granting access to a forum. And in operation, he concluded, the policy barring religious groups here amounted to viewpoint discrimination. “It seems apparent,” he wrote, that under the policy the university would have allowed atheists to meet on campus. Id. at 281 (Stevens, J., concurring in judgment). “If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted,” he reasoned. Id. (Stevens, J., concurring in judgment). In the three cases discussed in detail in this section, the Court adopted Stevens’ position that an exclusion of religious expression can constitute not just content but viewpoint discrimination. It has been that determination of viewpoint discrimination that has divided the justices.

172

508 U.S. at 387

173

The church argued that the district had created a limited public forum. White wrote that argument had “considerable force” but nevertheless ruled that the Court did not need to reach the issue. Id. at 391. Although the Court, then, did not explicitly rule that a limited public forum was created in Lamb’s Chapel, the Rosenberger Court referred to Lamb’s Chapel as a limited public forum case, as have commentators. See Casarez, supra note 8, at 581 n.170.

174

508 U.S. at 393

175

Id. at 394.

176

Id.

177

Noting that the film series would have been after school hours, open to the public, and not sponsored by the school, White wrote that the district’s fears of an Establishment Clause violation were unfounded. Id. at 395. All nine justices agreed the district’s policy was viewpoint discriminatory. Kennedy, Scalia and Thomas, who concurred in the judgment, were bothered by the Court’s reference in its Establishment Clause discussion to the three-part test from

Lemon v. Kurtzman

, 403 U.S. 602 (1971), which those three justices wished to abandon. See

508 U.S. at 397

(Kennedy, J., concurring in part and concurring in the judgment); Id. at 398 (Scalia, J., concurring in the judgment).

178

515 U.S. 819 (1995).

179

Id. at 823.

180

Id. at 826.

181

Id. at 827.

182

Id. at 830.

183

Id.

184

Id. at 831.

185

Id.

186

Id.

187

Id. at 826.

188

Id. at 895 (Souter, J., dissenting).

189

Id. at 831.

190

Id.

191

See Wojciech Sadurski,

Does the Subject Matter? Viewpoint Neutrality and Freedom of Speech

, 15 CARDOZO ARTS & ENT. L.J. 315, 322 (1997).

192

515 U.S. at 876

(Souter, J., dissenting).

193

Id. (Souter, J., dissenting). “Even featured essays on facially secular topics become platforms from which to call readers to fulfill the tenets of Christianity in their lives,” he argued. Id. at 866 (Souter, J., dissenting).

194

Id. at 868 (Souter, J., dissenting).

195

The majority relied on the principle of neutrality, discussed in this section’s introduction, to resolve the Establishment Clause issue. Because the forum was open to various student groups, the groups had equal access to funding, and the university disassociated itself from endorsement of the views of any of the groups, the Court ruled there was no Establishment Clause violation.

196

515 U.S. at 893

(Souter, J., dissenting).

197

Three of the justices in the majority here—Kennedy, Scalia and Thomas—were the dissenters in Hill v. Colorado who focused their dissent in that case on what they argued was the regulation’s discriminatory effect. O’Connor and Rehnquist joined the majority opinion in Hill, which largely ignored the regulation’s effect.

198

See Sadurski, supra note 191, at 328.

199

515 U.S. at 893-94

(internal quotations and citation omitted) (Souter, J., dissenting). Souter’s focus on purpose here mirrors his position in his dissents in the secondary effects cases.

200

Id. at 894 (Souter, J., dissenting).

201

Id. at 895 (Souter, J., dissenting) (“If the Guidelines were written or applied so as to limit only … Christian advocacy and no other evangelical efforts that might compete with it, the discrimination would be based on viewpoint.”).

202

Id. at 896 (Souter, J., dissenting).

203

Id. at 897 (Souter, J., dissenting). Souter cited excerpts from the transcript of the oral argument in Lamb’s Chapel as evidence that atheists would have been permitted to use school property in that case. Id. at 897 n.13 (Souter, J., dissenting).

204

The majority in Rosenberger responded, “There is no indication in the opinion of the Court (which, unlike an advocate’s statements at oral argument, is the law) that exclusion or inclusion of other religious or antireligious voices from that forum had any bearing on its decision.” Id. at 832.

205

See Sadurski, supra note 191, at 334.

206

515 U.S. at 898

(Souter, J., dissenting).

207

Id. at 899 (Souter, J., dissenting) (“[A] university’s decision to fund a magazine about racism, and not to fund publications aimed at urging repentance before God does not skew the debate either about racism or the desirability of religious conversion.”).

208

Id. at 868 (Souter, J., dissenting).

209

533 U.S. 98 (2001).

210

Id. at 103.

211

Id.

212

Id. at 104.

213

Id. at 108.

214

Id.

215

Id. at 110.

216

Id. at 112 n.4. The court of appeals held that because the club focused “on teaching children how to cultivate their relationship with God through Jesus Christ,” its activities were “quintessentially religious,” not simply a perspective on a subject. Id. at 111 (quoting

Good News Club v. Milford Cent. Sch., 202 F.3d 502, 510 (2d Cir. 2000)

). The Court rejected that view and instead said that there was no reason why something cannot be “quintessentially religious” and characterized as the teaching of morals and character development from a particular viewpoint. Id.

217

Justice Breyer, who had joined Souter’s Rosenberger dissent, concurred in part in Good News Club. His brief concurring opinion addressed quibbles he had with the majority’s Establishment Clause discussion but did not comment on the majority and dissent’s differing positions on the free speech issue. It, therefore, is unclear why he elected to join the majority.

218

Id. at 134 (Stevens, J., dissenting).

219

Id. at 133 (Stevens, J., dissenting).

220

Id. at 138 (Souter, J., dissenting). Souter wrote that children are instructed that “the Bible tells us how we can have our sins forgiven by receiving the Lord Jesus Christ…. If you have received the Lord Jesus as your Saviour from sin, you belong to God’s special group—His family.” Id. at 137 (Souter, J., dissenting).

221

Id. at 139 (Souter, J., dissenting).

222

Id. (Souter, J., dissenting).

223

See Manning, supra note 166, at 869.

224

Sadurski, supra note 191, at 326-27.

225

Id. at 326.

226

For additional empirical support of this point see Epstein & Segal, supra note 14, at 109.

227

408 U.S. 92 (1972)

228

Id. at 93 (quoting CHICAGO, ILL., MUNICIPAL CODE, CH. 193-1 (i) (1968)).

229

Id. at 95.

230

See, e.g.,

Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991)

(“Simon & Schuster need adduce no evidence of an improper censorial motive…. [I]llicit legislative intent is not the sine qua non of a violation of the First Amendment.”).

231

530 U.S. 703 (2000).

232

Id. at 708.

233

Id. at 742 (Scalia, J., dissenting).

234

See

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986)

(“To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters.”).

235

See

Turner Broad. Sys. v. FCC, 512 U.S. 622, 642-43 (1994)

(“[A] content-neutral purpose [would not] be enough to save a law which, on its face, discriminates based on content.”).

236

Geoffrey Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 115 (1987).

237

See, e.g.,

McGuire v. Reilly, 260 F.3d 36, 44 (1st Cir. 2001)

(holding that the legislature was aiming at “the deleterious secondary effects of anti-abortion protests”).

238

See Jacobs, supra note 8, at 621-22.

239

535 U.S. 425, 457 (2002)

(Souter, J., dissenting). Souter was arguably incorrect, however, to suggest that a restriction on adult businesses is a viewpoint-based restriction. The municipalities are not concerned with the underlying view adult content transmits. The regulation in Renton, for instance, applied to all theaters that broadcast adult content. The viewpoint of a particular film did not matter. Holding that a restriction on a subject is actually viewpoint based because the subject implicitly transmits a view represents a wide conceptualization of viewpoint, one that would be unwieldy in practice.

240

530 U.S. 703, 719 (2000)

241

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 (1994)

242

Hill, 530 U.S. at 720.

243

391 U.S. 367, 383 (1968).

244

530 U.S. at 768-69

(Kennedy, J., dissenting).

245

529 U.S. 277, 330 (2000)

(Stevens, J., dissenting).

246

475 U.S. 41, 60 (1986)

(Brennan, J., dissenting).

247

See Susan Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615 (1991).

248

Madsen, 512 U.S. 753, 794 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part).

249

Hill, 530 U.S. 703, 744 (2000) (Scalia, J., dissenting).

250

Williams, supra note 247, at 730 n. 312.

251

See Casarez, supra note 8, at 581 n. 497.

252

“The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.”

Consol. Edison v. Pub. Serv. Comm’n, 447 U.S. 530, 537 (1980)

253

The government, the Court has ruled, can create a limited public forum “for certain groups or for the discussion of certain topics.”

Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)

. Because the government has the discretion to restrict the boundaries of forums it creates, it may not be immediately apparent from the face of a regulation whether that regulation is viewpoint discriminatory. A court’s evaluation of purpose and effect is thus especially important in limited public forum and nonpublic forum cases.

254

For a detailed explanation of the Court’s development of this principle, see Casarez, supra note 8, at 509; Kozlowski, supra note 8, at 57-94.

255

See, e.g.,

Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993)

. A regulation with a one-way effect that closed off one side of a debate or singled out a particular message would thus constitute viewpoint discrimination.

256

475 U.S. 41 (1986).

257

The fact that adult films may implicitly transmit favorable views about sex should not render a regulation viewpoint based. See supra note 239 and accompanying text.

258

The regulation would have to pass strict scrutiny because it is a regulation of private speech. See, e.g.,

Burson v. Freeman, 504 U.S. 191 (1992)

(upholding a content-based but viewpoint-neutral restriction on the solicitation of votes within 100 feet of the entrance to a polling place). As has been discussed, content-based but viewpoint-neutral regulations in limited public forums and nonpublic forums are permissible. See supra note 253 and accompanying text.

259

See, e.g.,

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001)

(“When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech …. The State’s power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint.”) (emphasis added).

260

460 U.S. 37, 62 (1983)

(Brennan, J., dissenting). One scholar has labeled viewpoint discrimination “the primary free speech clause danger.” Jacobs, supra note 8, at 600.

261

See Jacobs, supra note 8, at 599-600.

262

515 U.S. 819 (1995).

263

Id. at 895-96 (Souter, J., dissenting).

264

See, e.g.,

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)

265

See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001) (“When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified in reserving its forum for certain groups or for the discussion of certain topics.”) (internal citation omitted).

266

See Casarez, supra note 8, at 528.

267

Rosenberger, 515 U.S. at 850 (O’Connor, J., concurring).

268

Casarez, supra note 8, at 529.

13 COMMLPOLY 131

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