Why does SCT view content-based restrictions of high value speech with such disfavor?

1. Why does SCT view content-based restrictions of high value speech with such disfavor? • Reasons? • Distorts public debate (silences important views or topics) • Allows arbitrary regulation of topics based on officials’ views rather than citizens (anti-democratic) • Distrust government motives (dislike certain viewpoints, trying to maximize power by silencing people, etc.) • Paternalistic (distrust people’s ability to make decisions) • 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 restrictions in Brown – are they as concerning? Should they be?

2. 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) • Law allows punishment based on “communicative impact” of speech even if law seems neutral • 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

3. Turner Broad. v. FCC – speaker based restrictions • Must-carry provisions of Cable Act require cable operators to set-aside a portion of their channels for local broadcast stations. • Congressional Findings • Government interest in promoting a diversity of views through multiple technology media. • A primary objective and benefit 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. • Physical characteristics of cable systems are in danger of concentrating economic power in cable systems who have economic incentives to prefer their programming over local broadcasters • viability of broadcast and access to free programming is threatened • SCT: • Act is a speaker-based restriction • 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?

4. 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?

5. “Secondary effects” reasoning and content-neutrality – the possible import of Renton: • 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? What does it do to notions of “content-neutrality”?

6. Comparing evidentiary requirements & tailoring in Renton & Brown • How carefully does the Court examine the evidence supporting the law? Compare to Brown. • How carefully does the Renton Court scrutinize the application of the rest of intermediate scrutiny – in this case the ample alternatives prong of the test? • Compare to Brown. What did the majority say there with respect to how narrowly tailored the law needed to be in order to survive?