Brown v. EMA – a primer on content-based restrictions

1. Brown v. EMA – a primer on content-based restrictions • Violent video games regulate based on content • Ask does law regulate speech falling into an existing category of low value speech? • No – obscenity (on which statute tries to piggy back) only applies to explicit sexual depictions – not violence • Can we say that the statute regulates speech that is nonetheless “low value”? Here – the answer is no • US v. Stevens – SCT is unwilling to create new low value categories based on cost-benefit analysis of harm vs. value of speech • Brown majority indicates there must be a “long tradition of proscription” to find speech low value • We don’t know what that means yet though • If law regulates “high value” speech, apply strict scrutiny. • What kind of interest does that state have – is it compelling? • Is the law necessary?

2. Why does SCT view content-based restrictions of high value speech with such disfavor? • Reasons? • Are subject-matter restrictions as threatening to free speech as viewpoint-based restrictions? • E.g. – law banning all discussion of abortion (versus law banning pro-choice speech)? What about those content-based TP&M restrictions we just discussed in Brown?

3. When is a law content-based versus content-neutral? SCT doctrine (Turner) • Laws are content-based if they are: • Facially content-based – SM or VP-based • e.g., Brown, Mosley • Facially content-neutral but have a content-based justification • e.g., breach of peace statutes when used to punish speaker due to audience response to ideas (Cantwell) • Laws are content-neutral if they are: • Facially content-neutral, AND • Have a justification unrelated to the speaker’s message • e.g., law regulating signs on public property in order to preserve aesthetic interests or traffic safety • Where does that leave us w/ a case like Turner?

4. Turner Broad. v. FCC – speaker based restrictions • Must-carry provisions of Cable Act require cable providers to set-aside a portion of their channels for local broadcast providers. • Act is a speaker-based restriction • Section 2 of Cable Act – Findings • Government has an interest in promoting a diversity of views provided through multiple technology media. • A primary objective and benefit of our Nation’s system of regulation of television broadcasting is the local origination of programming. • Broadcast television stations continue to be an important source of local news and public affairs programming. • SCT: Speaker-based restrictions are not inherently content-based – must judge such restrictions individually as to whether they unreasonably restrict content • How do the Turner opinions resolve the issue of whether the Act is CB or CN? Who has the better argument – majority or dissent?

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

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