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Non-content-based restrictions

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Overview Edit

If the government limits speech, but its purpose in doing so is not based on the content of the speech, then the limitation on speech may still violate the First Amendment, but it is less likely than a content-based restriction to do so. This is because the Supreme Court applies less than “strict scrutiny” to non-content-based restrictions (also called content-neutral restrictions). The Court requires that the governmental interest be “significant,” or “substantial,” or “important,” but not necessarily, as with content-based restrictions, “compelling.” And the Court requires that the restriction be narrowly tailored, but not, as with content-based restrictions, that it be the least restrictive means to advance the governmental interest.

Two types of speech restrictions that receive this "intermediate scrutiny" are (1) time, place, or manner restrictions, and (2) incidental restrictions, which are restrictions aimed at conduct other than speech, but that incidentally restrict speech. This report includes separate sections on these two types of restrictions. In addition, restrictions on commercial speech, though content-based, are subject to similar "intermediate scrutiny"; this report also includes a separate section on commercial speech. Finally, bans on nude dancing and zoning restrictions on pornographic theaters and bookstores, although discriminating on the basis of the content of speech, receive "intermediate scrutiny" because, according to the U.S. Supreme Court, they are aimed at combating “secondary effects,” such as crime, and not at the content of speech.

Expression versus Conduct.

In City of Erie v Pap's A.M. 529 U.S. 277 (2000) the court recognized that "nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection." Furthermore, in order to determine what level of scrutiny to apply, the court examined if the State's regulation is related to the suppression of expression, the 3rd prong established in United States v O'Brien, 391 U.S. 367 (1968). If the government interest is related to the content of the expression, then the regulation will be tested pursuant to a strict scrutiny standard of review. However, the court recognized negative secondary effects associated with nude dancing, and in this case, the court held that the ordinance proved to be content-neutral and therefore, a valid implementation of a State's regulation.

In Young v American Mini Theaters, 427 U.S. 50 (1976) the court upheld a separation approach. The court recognized that the speech itself is protected, but with secondary effects taken into consideration, the state has an interest in preserving the neighborhood. In other words, the state cannot ban it completely but can implement zoning regulations which will be permitted if 1) a clear concern of secondary effects 2) it is not a total ban in other words, there must be some place in the state for these establishments.

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