Some Issues re Intermediate Scrutiny of Content-Neutral Regulations

Intermediate scrutiny - Law must be narrowly drawn to meet important state interest and leave open ample alternatives of communication)

Applying this test consistently can be hard to do: Often very good arguments on both sides as to whether the law is narrowly drawn, the law substantially furthers its goals or whether speaker’s alternatives are sufficient. And SCT rhetoric doesn’t help.

Ward v RAR - “Narrowly tailored” prong does not require gov’t to look for least restrictive alternative. Law is narrowly tailored as long as gov’t can show its interest would be achieved less effectively w/out law. But the law cannot regulate speech in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.

Taxpayers for Vincent

What is the city’s asserted interest in regulating these signs?

Is the ban on signs on public property narrowly drawn to meet that interest?

Are there less restrictive alternatives (compare Schneider)? What is the import of the Court’s statement that “visual

blight” is the substantive evil?

Does the law advance the state’s interest?

Does the ordinance leave open ample alternatives of communication for the speaker?

Ladue v. Gilleo

Ladue ordinance prohibited all signs except those that fell w/in 10 exemptions. The ordinance prohibited Gilleo from having political signs on her property. City’s reasons – aesthetics.

Is the ordinance really content-neutral? Why doesn’t the SCT just strike it down as content-based?

Why does the Court strike the ordinance down?

Why can’t the government just argue that the homeowner can express herself via other adequate alternatives? Isn’t this just a minor TMP regulation?

Frisby v. Schultz

• Brookfield ordinance bans “picketing before or about” a single residence – i.e. picketing aimed at single residence (“targeted picketing”)

• State’s interest in regulating targeted picketing was protection of residential privacy.

• What does SCT mean when it says that home occupants aren’t required to welcome unwanted speech into the home? Does it equate privacy with freedom from loud noises or unwanted interruptions?

• How is the protestors’ speech unwanted in the home?

Frisby v. Schultz

Why does the majority think the law is narrowly tailored? Why does the dissent think it isn’t?

What other means do picketers have to communicate their message? Are they satisfactory?

A Frisby hypo:

Homeowner puts up a large sign on their property that faced the adjacent property. The sign read “The mayor is incompetent and works for the forces of evil?” The sign was unavoidably visible from every window of the neighbor’s property since it was as large as a billboard.

Could the neighbor argue that the sign should be removed because the city had law regulating “targeted protests” like Frisby? What if the neighbor WAS the mayor? What if the sign said simply “you suck” and the

neighbor was a private citizen?