Overview Edit

Some laws are not designed to limit freedom of expression, but nevertheless can have that effect. For example, when a National Park Service regulation prohibiting camping in certain parks was applied to prohibit demonstrators, who were attempting to call attention to the plight of the homeless, from sleeping in certain Washington, D.C. parks, it had the effect of limiting the demonstrators’ freedom of expression. Nevertheless, the U.S. Supreme Court found that application of the regulation did not violate the First Amendment because the regulation was content-neutral and was narrowly focused on a substantial governmental interest in maintaining parks “in an attractive and intact condition.”[1]

The Supreme Court has said that an incidental restriction on speech is constitutional if it is not “greater than necessary to further a substantial governmental interest.”[2] This is known as the “O’Brien test,” which was first formulated in United States v. O’Brien.[3]

In O'Brien, the Court established a test in order to determine if the legislation is regulating conduct or expression. The regulation (1) must be within the constitutional powers of the government, (2) it must further an important or substantial governmental interest, (3) the government interest must be unrelated to the suppression of free expression, and (4) if the regulation incidentally regulates free expression, then it must not be greater then necessary to further the governmental interest. In other words, it is will not be permitted if it captures otherwise protected speech and or expression. However, the Court has made clear that an incidental restriction, unlike a content-based restriction, “need not be the least restrictive or least intrusive means” of furthering a governmental interest. Rather, the restriction must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.’”[4]

The Court has noted that the standard for determining the constitutionality of an incidental restriction “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.”[5] In FCC v Pacifica Foundation, 438 U.S. (1978) the court held that a regulation may be permitted if it is aimed at ensuring a reasonable time, place and manner restriction, but it cannot silence entirely. If the regulation contains a reasonable time, place and manner restriction, it must be 1) narrow and not restrain otherwise protected speech 2) it must not constitute a total ban. In other words, the speaker must have the opportunity to express themselves somewhere. For example, a restriction on camping may be viewed as a restriction on conduct that only incidentally affects speech, or, if one views sleeping in connection with a demonstration as expressive conduct, then the restriction may be viewed as a time, place and manner restriction on expressive conduct. In either case, as long as the restriction is content-neutral, the same standard for assessing its constitutionality will apply.

In a 1994 case, the Supreme Court apparently put more teeth into the test for incidental restrictions by remanding the case for further proceedings rather than deferring to Congress’s judgment as to the necessity for the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of 1992.[6] To justify an incidental restriction of speech, the Court wrote, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”[7] The Court added that its

In City of Erie v Pap's A.M. 529 U.S. 277 (2000) Justice O'Connor speaking for the court articulated that the a state is permitted to implement a regulation that requires dancers to wear “pasties” and a “G-string” when they dance (non-obscenely) in “adult” entertainment establishments. "Being in a state of nudity is not an inherently expressive condition. However, nude dancing of the type at issue here is expressive conduct." The court stated that if the regulation on its face is regulating conduct alone, then a less stringent test will be applied. The recognition that nude dancing can be interpreted as expression, is important to keep in mind. If the court construed nude dancing as "conduct" then the court will be more likely to permit such a regulation. However, if a plaintiff seeks to challenge a statute on constitutional grounds and has developed a case which explains that the regulation is regulating expression then the government must prove that the ordinance at issue is not motivated not to regulate the primary effects of the expression (otherwise protected speech and or expression). The secondary effects are considered and the court has held that those are permitted such as: impacts on public health, safety and welfare which was recognized and embraced in Renton v Playtime Theatres, Inc. (1986)

obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress’ factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.[8]

References Edit

  1. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296 (1984) (full-text).
  2. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 537 (1987) (full-text).
  3. 391 U.S. 367, 382 (1968) (full-text).
  4. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). This case makes clear that, although both “strict scrutiny” and the "O’Brien test" for incidental restrictions require “narrow tailoring,” “the same degree of tailoring is not required” under the two; under the "O’Brien test," “least-restrictive-alternative analysis is wholly out of place.” Id. at 798-99 n.6. It is also out of place in applying the Central Hudson commercial speech test.
  5. Clark, 468 U.S. at 298. And, “the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.” United States v. Edge Broadcast. Co., 509 U.S. 418, 430 (1993).
  6. Turner Broadcast. Sys., Inc. v. Federal Communications Comm'n, 512 U.S. 622 (1994). David Cole describes Turner as “effectively giving bite to the O’Brien standard.” He writes that, “if the Court had applied the O’Brien standard the way it applied that standard in O’Brien, it should have upheld the ‘must carry’ rule. The O’Brien standard is extremely deferential.” The Perils of Pragmatism, Legal Times, July 25, 1994, at S27, S30.
  7. Id. at 664.
  8. Id. at 666.

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