Constitutional Tests and Doctrines

Over time, courts have developed certain tests and doctrines to determine the constitutionality of laws created by legislative and regulatory bodies. The test applied depends largely upon the law’s intended effect on speech or expression. Let’s begin by examining the influence laws can have on speech. Laws can be

• content neutral,
• content specific, or
• viewpoint based.

The best way to understand how constitutionality is determined for these types of laws is to work through some examples. For instance, a city council adopts an ordinance that says it is a violation of law to distribute handbills of any kind in the downtown historic district during the three-week Summerfest Celebration held each August. Anyone who violates the ordinance will be fined $100. In the past, city officials have found that attendees accept the handbills from people during the festival and then promptly toss them on the ground—creating an eyesore of litter and forcing the city to pay overtime to sanitation workers to clean the streets each night. Notice that the ordinance does not at all address the content of the handbills. It really doesn’t matter what the handbill says. After all, litter is litter. This is what’s referred to as a content-neutral, time, place, and manner restriction on speech.

• Time: The three weeks of the Summerfest Celebration
• Place: Downtown historic district
• Manner: Handing out literature on the street

The city council was careful not to refer to the content on the handbills for good reason. By keeping the ordinance content neutral, the council will have an easier time winning a lawsuit if someone who is fined for distributing handbills challenges the ordinance on First Amendment grounds. To be upheld in court, this type of law must meet the intermediate scrutiny test. Here’s how it works: The government (in this case, the city council) must demonstrate

• a substantial or important governmental interest,
• that the law is narrowly tailored to address that interest, and
• ample alternative avenues of communication available to the speaker.

If the government can show these metrics exist, then the court will find the law to be constitutional. In our example, the city would argue that the ordinance is needed to keep the streets free of litter and thus save the taxpayers from having to pay overtime costs to the street sweepers. The law is narrowly drawn to handle the problem that exists just in the historic district during that three-week period. Furthermore, there are plenty of other ways to get one’s message out there.  The speaker can use a bullhorn, take out an ad in the festival guide, put up a billboard or hold up a sign—just to name a few alternatives.

Now, let’s change the example.  What if the ordinance instead said it would be a violation to distribute political handbills during the festival? That’s a dramatic change—one that necessitates a much higher level of scrutiny by the courts. Why? Because now the law is singling out a particular type of content, rendering the ordinance content specific. As a democratic society, we don’t want the government to regulate the content of our expression. Consequently, when the government creates a law regulating speech based upon its content, it faces a heavier burden to show that the law is constitutional. For this type of law to be upheld in the courts, it must meet the strict scrutiny test. With this test, government has the burden to show

• a compelling governmental interest and
• that the government is using the least restrictive means to achieve that interest.

A compelling government interest means that it is an interest of the highest order; that is, it is vital to preserving the safeties, freedoms, rights, etc., of citizens. Moreover, the law must be absolutely necessary to achieve that compelling interest. If there is another way (besides this particular law) to address the situation, then the government must do it. In other words, if there is a less restrictive way to achieve the interest, the law will be declared unconstitutional. So, in our example of the handbill ordinance, the government would be hard pressed to show that restricting political literature is somehow necessary. And while keeping the streets clean during the festival might be an important interest, it most likely is not an interest of the highest order; that is, it is not vital to the city’s interests. Moreover, political literature is no more an eyesore than any other type of handbill.

Strict scrutiny is the highest level of judicial review, and laws that are subjected to it rarely survive the challenge. In fact, the Supreme Court has said that "content-based regulations are presumptively invalid."

Viewpoint-based laws will not survive a constitutional challenge. For instance, if city council had adopted an ordinance that said no anti-abortion literature shall be distributed in the downtown historic district—thereby allowing pro-choice handbills—the law would be unconstitutional. How could city council say that restricting one side of a debate reflects the city’s interest of the highest order? In short, it cannot.

As the Supreme Court has noted, with respect to governmental restriction on specific content: “Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion" (Turner, 1994).

In summary, when determining which test applies to a particular law being challenged on First Amendment grounds, we must first decide whether the law is content neutral, content based, or viewpoint based. The latter two types of restrictions will face great difficulty surviving the strict scrutiny test, while the content-neutral law may fare better when measured against the intermediate scrutiny test.

 

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References

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994).