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., regulate speech based on what the speaker is saying). • SCT has few problems with these restrictions if speech is truly low value (BIG issue in some cases – e.g., Stevens, Cohen, etc. was whether laws punishing speech met the reqm’ts established for each category of low value speech) • But Brown SCT goes beyond asking about whether speech is low value and judges speech based on whether it can survive strict scrutiny. • Reflects SCT’s two-tiered approach to speech

2. Content-Based Restrictions: SCT’s two-tiered approach • Low Value Speech: Stevens indicated that the only methodology SCT used was “history” & “tradition” • Threats, Fighting Words, Incitement, Libel, Obscenity, Child Pornography, Fraud (Comm’l Speech), Speech Integral to Criminal Conduct • 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.

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 speech within an existing category? • Note Court reiterates Stevens – absent some sort of “long (if heretofore unrecognized) tradition of proscription,” legislature cannot regulate as “low value” [p. 101]. • Is there a different “tradition” that supports creation of a low value category? • What about Justice Thomas’s dissent arguing that parents have had control over who spoke to their children? • If there is a tradition of protecting children from certain kinds of speech (like sexual speech), why can’t we protect them from violence?

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 the state’s evidence – 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? • Should the court consider the argument that this is a TP&M regulation affecting only minors’ ability to buy certain content without parental permission?

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 (vs. law banning only pro-choice speech)? What about the content-based TP&M restriction in Brown – is it as concerning? Should it be?