Incidental Restrictions of Speech and the First Amendment: Motive-Based Rationalization of the Supreme Court's Jurisprudence
Srinivasan, Srikanth, Constitutional Commentary
When does the application of a law raise a First Amendment concern? Though seemingly an elementary question, the answer often turns out to be quite ambiguous. If a law's application does implicate the First Amendment, courts employ various tests to determine whether there is a First Amendment violation. Content-based regulations usually trigger very exacting scrutiny;(1) but if the targeted speech falls within certain narrowly-defined categories, the scrutiny decreases.(2) Content-neutral provisions generally provoke a more intermediate level of review.(3)
To trigger any of these tests, however, the law's application must as a threshold implicate the First Amendment at all. Understandably, laws that aim at speech or that in most applications affect expressive activities will always raise a First Amendment issue, Coptent-based provisions fit in this category, as do content-neutral laws that directly target speech (such as laws prohibiting leafleting,(4) handbill distribution,(5) or posting of signs(6)) or that inevitably burden expression(7) (such as laws imposing a special tax on paper and ink,(8) banning honoraria for speeches,(9) or barring criminals from selling their stories(10)). The doctrinal confusion arises with respect to another type of content-neutral provision: "generally applicable" laws that primarily aim at nonexpressive activities,(11) but that in some applications "incidentally" restrict speech.(12) Free speech doctrine is unclear when such incidental restrictions raise a First Amendment concern.
Intuitively, some incidental restraints seem to implicate the First Amendment. For example, the use of a noise ordinance to halt a political rally may seem to warrant First Amendment review, even though the law applies generally to both noisy speeches and noisy jackhammers.(13) On the other hand, an increase in general corporate tax rates would impede the publishing activities of a book company, but enforcing the rate change against the publisher may seem not to raise any First Amendment issue.(14) Although intuition might suggest that the noise law but not the tax law should trigger First Amendment scrutiny, free speech doctrine is far from clear why (and whether) the laws do in fact have different constitutional implications. Specifically, in what circumstances do incidental effects like those produced by the tax and noise laws implicate the First Amendment? The answer is significant, for it determines whether government must come forward with justification sufficient to withstand First Amendment scrutiny. Yet the Supreme Court has paid the question little attention,(15) and its cases examining incidental restraints seem to point to conflicting conclusions. A closer analysis, however, reveals an explanation that reconciles these cases, and that in general rationalizes the Court's approach to incidental restrictions of speech.
The Supreme Court could of course adopt either of two blanket rules, both of which are plausible-that incidental restraints should never raise a constitutional concern, or that they should always trigger some level of First Amendment scrutiny. The Court has embraced the former view in its free exercise jurisprudence: Employment Division v. Smith holds that the incidental effect of enforcing a generally applicable law against religiously motivated action never concerns the Free Exercise Clause.(16) Justice Scalia, who wrote the Court's opinion in Smith, would also completely except incidental restrictions of speech from First Amendment coverage.(17) Adopting his position would signal that the Court's primary concern when dealing with incidental restraints is with legislative motivation: Since generally applicable laws by definition target nonexpressive activities, their legislative purpose most likely is not related to suppressing speech; thus, if legislative motivation is the central consideration, their application in a way that incidentally affects expression would never implicate the First Amendment. …