UNCERTAINTY IS THE ONLY CERTAINTY: A FIVE-CATEGORY TEST TO CLARIFY THE UNSURE BOUNDARIES BETWEEN CONTENT-BASED AND CONTENTNEUTRAL RESTRICTIONS ON SPEECH

• Published in: Emory law journal 2015-11, Vol.65 (2), p.455
• Main Authors: Sekulow, Jay Alan, Zimmerman, Erik M
• Format: Article
• Language: English
• Subjects: Freedom of speech; Jurisprudence; Law; Neutrality; Regulation; Restrictions; Speeches; Supreme Court decisions
• ISSN: 0094-4076; 2163-324X

A. Foundational Content-Neutrality Cases: O'Brien to Reed Although nearly half a century elapsed between the Court's decisions in United States v. O'Brien7 and Reed v. Town of Gilbert,8 some key aspects of the areas of law that they addressed remain unsettled or in dispute. Since Ward v. Rock Against Racism9 has emerged as perhaps the most important case in this area, this section will be divided into three parts: pre-Ward cases, Ward, and post-Ward cases. 1. The Court unanimously upheld the law on its face and as applied, holding that it was a content-neutral regulation of conduct that only incidentally impacted expression.11 The Court stated that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.\n Support for treating this category of laws as content- or viewpoint-based can be found in the majority and Harlan concurring opinions in O'Brien, the Marshall dissent in Clark, Minneapolis Star, Arkansas Writers' Project, the Brennan dissent in Renton, R.A.V., Eichman, the Brennan concurrence in Boos, the Scalia concurrence in Madsen, the Scalia and Kennedy dissents in Hill, Sorrell, and the Scalia and Alito concurrences in McCullen.189 As discussed previously, several of these opinions explain, in detail, why laws that disproportionately and significantly burden one discrete group of speakers are highly suspect and should be treated as such.