Constitutional Law II

Content-Neutral Regulation

If a regulation on speech is neutral as to its content, it is allowed as long as it falls within one of three categories:

  1. Regulating the time, place, and manner of speech
    • Although it must comport with the forum analysis
  2. Expressive Conduct

    The government can regulate expressive conduct for its non-communicative impact. According to O'Brien, to do this, the regulation must:

    1. Be within the government's enumerated powers
    2. Further a substantial government interest
    3. Not be a pretext for regulating conduct
    4. Be a less restrictive means

    The expressive conduct doctrine only applies to non-serious criminal conduct.

    This conflicts with the free exercise doctrine.

  3. Secondary Effects

    If the government pretends to target the secondary effects of speech, but is really discriminating based on the content of speech, it will receive intermediate scrutiny.

    This usually comes up with regulations of adult businesses.