Final Tomorrow: Last Minute Con Law II question Forum

[firebreathingliberal]

For unprotected speech, what level of scrutiny is applied to content-neutral restrictions or restrictions that fall into the R.A.V. exceptions? I have in my notes that generally content-neutral restrictions are subject to intermediate scrutiny, but I can't seem to find whether this is across the board or only for protected speech. Would rational basis apply to content-neutral restrictions of unprotected speech?

Thanks for your answers.

[firebreathingliberal]

Hey... thanks for the help...

[Always Credited]

sorry man, I've only touched con law 1

[Cupidity]

If I'm not misunderstanding the material, "low level" speech under the two tiered system may always be proscribed on a rational basis level; ie: obscenity, profanity, fighting words. We wouldn't even care if it were content-neutral. However, in the gray area of exams, your argument would go like this.

Govt would contend this speech is low level and may therefore be proscribed on rational basis.
Individual counters that it isn't low level and therefore requires strict scrutiny
Govt argues that even if it isn't low level, the statute is content-neutral and therefore we need only apply intermediate scrutiny if it has a negative impact...blah blah blah.

Hope that helps some, I skipped a few steps.

[firebreathingliberal]

The exam is over so it doesn't much matter now, but you characterization of "low level" speech is incorrect. These are categories of unprotected speech, except profanity which is protected except in certain cases (captive audiences, context of fighting words). In RAV v. City of St Paul, Scalia laid down a rule that whether the speech is protected or not, if the restriction is content-based, as in not viewpoint or subject matter neutral, then it is subject to strict scrutiny with two exceptions, if the the restriction is advancing the very reason the speech is proscribable. He gives an example that you can ban fighting words because they provoke violence but you cannot ban fighting words against minorities. The other exception is where you are not restricting the speech for the speech itself but because of the secondary effects of the speech. Think adult theaters and the shady people those theaters bring with them, so you are banning adult theaters not because the material is obscene but because it brings a bad element to town.

So Scalia cares a lot if the restriction is content-based except in those two scenarios. I think you are right though that it is only rational basis if the restriction is content neutral.