First Amendment Scholars’ Amicus Brief in Georgia Adult-Entertainment Case
Regular readers will remember my blogging (Parts 1 and 2) about the cert petition I filed in Georgia Ass’n of Club Executives v. Georgia, where we raised a First Amendment challenge to a state tax on adult entertainment establishments, and about the amicus brief supporting the cert petition filed by the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass’n.
Now, more amicus briefs have come in. (The state’s brief is due in a month and our reply brief soon after that, so we should find out whether cert is granted by sometime this summer.) The first brief I’ll mention is the First Amendment Scholars’ brief, filed by Chris Paolella of Reich & Paolella LLP.
Here’s the text of the (interesting parts of the) brief:
Interests of Amici Curiae
Amici are 22 legal scholars who research, teach, and publish scholarship on the First Amendment’s free speech clause. Their names, their institutional affiliations, and examples of their relevant scholarship are set forth in the Appendix to this brief. Amici have no personal interest in this case; they submit this brief to urge the Court to grant certiorari to resolve a long-standing inconsistency in its First Amendment jurisprudence.
Summary of Argument
The threshold question in deciding whether a government regulation offends the First Amendment’s guarantee of freedom of speech is whether the regulation discriminates based on the content of the speech. Laws “that target speech based on its communicative content . . . are presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). They are subject to strict scrutiny, which requires the government to show that the restriction “is ‘narrowly drawn’ to further a ‘compelling interest’ and that the restriction amounts to the ‘least restrictive means’ available to further that interest.” Ashcroft v. ACLU, 542 U.S. 656, 677 (2004) (citations omitted).
“On the other hand, so-called ‘content-neutral’ time, place, and manner regulations” aimed at combating “the undesirable secondary effects” of expression are subject to the less exacting standard of intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 49 (1986). To survive intermediate scrutiny, a restriction on speech or expression need only be “narrowly tailored to serve the government’s legitimate, content-neutral interests”; it need not “be the least restrictive or least intrusive means of doing so.” Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
In most cases, the decision whether to apply strict or intermediate scrutiny will determine whether the regulation survives. But the line dividing content-based laws and content-neutral regulations has never been entirely clear. In recent years, that line has become even blurrier.
In Reed, this Court declared that content-based regulations are subject to strict scrutiny “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 576 U.S. at 165. This holding is in obvious tension with City of Renton‘s view that, in at least some cases, a content-neutral “secondary effects” justification is enough to escape strict scrutiny—even where a law singles out a particular type of expressive content for regulation. Some lower courts have read Reed as undermining City of Renton and have revisited their prior jurisprudence in this area.
But other courts continue to apply City of Renton‘s “secondary effects” rationale to uphold laws that, on their face, discriminate between types of speech. And they apply them in contexts beyond the “time, place, and manner” restrictions at issue in City of Renton. Here, the Georgia Supreme Court upheld a tax levied on certain businesses featuring nude dancing—a type of expressive content—because the ordinance was “‘aimed not at the content‘ of adult entertainment, but ‘rather at the secondary effects‘” of the expression. Pet. App. 15a (quoting City of Renton, 475 U.S. at 47–48) (emphasis in original). Other courts have applied this rationale to uphold laws regulating not just adult entertainment but also other types of speech, including public protest.
In short, there is incoherence at the center of this Court’s First Amendment jurisprudence. Government regulators, speakers, and lower courts have no clear guidance as to whether a particular regulation will be viewed as content-based and subject to exacting strict scrutiny, or as a content-neutral regulation of secondary effects that need only satisfy intermediate scrutiny. This confusion has the potential both to confound good faith attempts at regulation and to chill speech that should be protected by the First Amendment.
Amici have differing perspectives on the continuing viability of City of Renton, as well as on the extent to which the government may constitutionally regulate specific types of speech based on that speech’s secondary effects. They therefore take no position on whether City of Renton should be overruled, limited to a particular context, or read to cover facts like those here. Nor do they take any position on how the Court should rule on the challenged Georgia law.
But they agree that the Court must provide clear guidance as to the level of scrutiny that applies to a law which singles out a particular type of expressive content but provides a content-neutral justification. Until it resolves the tension between Reed and City of Renton, lower courts will continue to be afloat.
The Court should grant certiorari to resolve this fundamental inconsistency in its free speech jurisprudence.
Argument
The Court Should Grant Certiorari to Resolve the Inconsistency between Reed and City of Renton and Its Progeny.
A. There is substantial tension between this Court’s rulings in City of Renton and its progeny, on the one hand, and Reed, on the other.
This Court has long held that regulations that discriminate based on the content of speech are subject to the most exacting scrutiny. See, e.g., Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92 (1972) (applying strict scrutiny to strike down ordinance generally prohibiting picketing near schools but permitting labor-related picketing: “Chicago may not vindicate its inte
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