Making Sense of Secondary Effects Analysis after Reed v. Town of Gilbert
Pacific McGeorge School of Law Research Paper
75 Pages Posted: 4 May 2017 Last revised: 13 Aug 2017
Date Written: February 15, 2017
Forty years ago, the Supreme Court created Secondary Effects Analysis, a deferential review of sexually-oriented business regulations so long as the regulators’ purpose is to reduce the “secondary effects” of selling speech rather than the speech itself. Secondary Effects Analysis has always been an odd fit in Free Speech Clause doctrine, since the Court has never explained what distinction of constitutional significance allows regulators that target businesses because of the content of the speech they sell to escape strict scrutiny review. Now, however, the need for a principled explanation for the continued existence of Secondary Effects Analysis has become urgent, in the wake of the Court’s recent, and seemingly absolute statement in Reed v. Town of Gilbert, Arizona, that laws that are content based on their face must be reviewed under strict scrutiny. This Article is the first to reevaluate the potential grounding and principled justification for this entrenched doctrinal anomaly in light of the Court’s opinion in Reed. Although the Court has never undertaken the task, it is possible to tighten and focus the prerequisites for entry into the analysis by identifying the attributes of the effects that it has accepted as “secondary” and understanding why those attributes may support a principled departure from strict review. A principled distinction explains that secondary effects are caused, in part, by positive, rather than negative, listener reactions to speech content; they are the foreseeable, likely, and imminent results of business operations; and they are caused, in part, by the time, place or manner variable adjusted by the regulation, and this cause must appear to be the exclusive target of the regulation. Regulators and courts urgently need this understanding to explain their continuing embrace and guide their applications of Secondary Effects Analysis after the Court’s decision in Reed.
Keywords: Secondary Effects, Free Speech, First Amendment, Constitution, Sexually Oriented Businesses
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