The United States Supreme Court has long recognized the importance of certain types of speech, and as a result, any law regulating speech of serious societal value must survive strict scrutiny—an extremely rigorous level of constitutional review. At the same time, the Constitution affords other types of speech little to no protection. The Supreme Court’s jurisprudence regarding laws regulating socially important speech is separated into two categories, created to separate the way the law affects speech. If the reviewing court holds the law is content based, meaning the law regulates speech based on the message conveyed, then the law is subject to strict scrutiny. Alternatively, if the law is content neutral, meaning its regulation is not based on the expression itself, then the law is subject to intermediate scrutiny, a lower level of judicial review.
Part II.A of this Note will outline the basic principles of the content- neutrality doctrine and the general implications of a positive determination. Parts II.B and II.C will discuss specific aspects of the Supreme Court’s jurisprudence, namely the secondary effects doctrine and the distinction between speech on public and private property. Part II.D will describe the role of governmental motive in courts’ determinations and the conflicting approaches within court cases. Part II.E will detail the current federal circuit split and the Supreme Court’s responsibility to formulate a more effective rule or test. Finally, Part III will argue that the determination of governmental motive should not be a necessary component of the content-neutrality determination, and that the absolute approach is preferable, particularly when evaluating laws that regulate speech on private property.
Read the full Note here.