61 Pages Posted: 24 Nov 2003 Last revised: 7 Nov 2010
Date Written: November 5, 2010
This article proposes that the Supreme Court is moving towards the adoption of a balancing test in place of a categorical approach to solving freedom of expression problems. This balancing test - a constitutional calculus - is described by the following formula:
EXPRESSIVE VALUE (content, character, context, nature, and scope)
COMPARED TO PROOF OF HARM (scienter, causation, nature and degree of harm)
Standard First Amendment doctrine follows a categorical approach that requires the courts to determine whether the law is content based or content neutral. Because content based laws are analyzed one way and content neutral laws are analyzed another way, under current doctrine it is crucial to be able to tell the difference between them. However, it is not always possible to classify a law as purely content based or purely content neutral. Many laws regulating expression are both content based and content neutral. For example, zoning laws that disperse sexually-oriented businesses, campaign finance reform laws that limit the amount of money a person or a political party may contribute to a candidate, policies and regulations restricting access of religious groups to public schools and universities, laws prohibiting electioneering at polling places on the day of an election, laws requiring specific media to give equal time or a right of reply to those officials or candidates who are attacked, and laws that regulate indecent or pornographic speech over specific media are both content based and content neutral on their face. In addition, there are many laws which are content neutral on their face, but which are content based in fact. These include laws and injunctions limiting protests at health care facilities, public nudity laws as applied to nude dancing establishments, laws prohibiting draft card burning, flag burning and cross burning, laws requiring cable television operators to carry broadcast stations, and laws governing the publication or broadcast of stolen or intercepted communications.
The Supreme Court is in the process of replacing the categorical approach that relies upon an absolute distinction between content based and content neutral laws with a constitutional calculus under which a number of factors which Justice Stevens calls content, character, context, scope, and nature are used to adjust the government's burden of proof up or down, affecting the quantum of evidence that the government must adduce to establish the constitutionality of the regulation of speech.
In easy cases the distinction between content based and content neutral laws will continue to be essentially outcome-determinative. But in difficult cases the categories that are drawn in First Amendment cases will become elements to be balanced rather than determinants of a specific standard of review. Under this balancing test, the higher the total value of the ideas and opportunities for expression that are restricted by a law, the more evidence of harm that the government must offer to prove that the law is justified.
Keywords: freedom of speech, freedom of expression, categorical approach, balancing approach
Suggested Citation: Suggested Citation
Huhn, Wilson Ray, Assessing the Constitutionality of Laws that are Both Content Based and Content Neutral: The Emerging Constitutional Calculus (November 5, 2010). Indiana Law Journal, Vol. 79, p. 801, 2004; U of Akron Legal Studies Research Paper No. 03-12. Available at SSRN: https://ssrn.com/abstract=466642