New Topic: content-based restrictions of high value speech

1. New Topic: content-based restrictions of high value speech • Have been discussing low value categories of speech – all of which involve laws that impose content-based restrictions (i.e., they regulate speech based on what the speaker is saying). • SCT has few problems with these restrictions if speech is truly low value (although the laws must meet the reqm’ts established for each category of low value speech) • But in Brown/Turner, SCT clearly views content-based restrictions of speech with suspicion. • So what’s going on? • Brown and Turner involved “high value” speech

2. Content-Based Restrictions: the court’s two-tiered approach • Low Value Speech: (per Chaplinsky) • Speech that is no essential part of the exposition of ideas and is of such slight social value as a step to the truth that any benefit is outweighed by the social interest in order and morality • Threats, Fighting Words, Incitement, Libel, Obscenity, Child Pornography, Commercial Speech(?), Solicitation (outside 1A?) • High Value Speech: • Speech that is not low value speech – i.e., somehow contributes to public discourse • Content-based restrictionsare subject to strict scrutiny (law must be necessary to meet a compelling state interest) • Content-neutral restrictionssubject to intermediate scrutiny (law must be narrowly drawn to meet important state interest and leave open ample alternatives of communication)

3. Brown v. EMA – the statute • Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor. • Cal. Civ. Code § 1746.1(d)(1)(A):“Violent video game” means a video game [where the options] available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that . . . Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. • Does the act regulate speech based upon its content?

4. Brown v. EMA – the low value speech issue • Note how majority first looks to see if statute regulates low value speech: • Does it regulate an speech within an existing category? • Why is the Court unwilling to recognize that this statute regulates a “new” category of low value speech? • What does it take to create such a category under the majority’s approach and why doesn’t the statute fit? • Is there a different “tradition” to look to in order to support creation of a low value category? • Is that what Justice Thomas is arguing? • Does Justice Alito’s approach suggest a possible route or is his argument different?

5. Brown v. EMA – the high value speech issue • Application of strict scrutiny • Is there a compelling state interest supporting the statute? • What kind of evidence does the state need? • Who has the better read on it – the majority or Justice Breyer? Does the disagreement itself suggest something about how the issue should be resolved? • Is the law necessary to meet that state interest? Why not? • To what extent should the court consider the argument that this is barely an infringement – i.e., it’s a TP&M regulation that effects only minors’ ability to buy certain content?

6. 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?

7. 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?

8. Turner Broadcasting 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 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?