69 Pages Posted: 18 Mar 2012
Date Written: March 17, 2012
When the Supreme Court invented the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the secondary effects doctrine were used in the context of political speech. Others, like Professor Laurence Tribe, predicted the doctrine would be limited to sexually explicit speech, suggesting the doctrine would not threaten the First Amendment more broadly. The modern consensus appears to be that the doctrine has, in fact, been limited to cases about sex.
In fact, the impact of the secondary effects doctrine on the First Amendment has been far broader. It is true that most courts do not expressly use the secondary effects doctrine in non-sexual speech cases. Instead they usually apply the standard content-neutrality analysis.
But that “standard” content neutrality analysis has actually been quietly warped over the past twenty-five years by the influence of the secondary effects doctrine, even when courts never invoke the doctrine. These distortions have occurred without anything like the outcry or attention that would be generated by express use of the doctrine in political speech cases. Yet they have produced precisely the same problem for the First Amendment predicted by the early critics of the secondary effects doctrine, namely a weak and easily avoided content neutrality inquiry.
This Article (1) describes the manner in which the standard neutrality analysis has been warped by the secondary effects doctrine, (2) demonstrates the dangerous First Amendment effects of those changes by examining several recent cases in which the court have allowed content-based or even viewpoint-based speech restrictions to stand, and (3) explains how the Supreme Court and lower courts can and should correct this serious First Amendment problem.
Keywords: First Amendment, content neutrality, Free Speech, secondary effects, City of Renton, motive
Suggested Citation: Suggested Citation
Rienzi, Mark and Buck, Stuart, City of Renton at Twenty-Five: A Likely Culprit and an Unlikely Path to a Weaker First Amendment (March 17, 2012). Available at SSRN: https://ssrn.com/abstract=2025266 or http://dx.doi.org/10.2139/ssrn.2025266