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The O'Brien test applies "when 'speech' and 'nonspeech' elements are combined in the same course of conduct . . . ." (Id. at p. 376.) In such cases,
"a government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (Id. at p. 377 (numbers added).)
The test for a valid time, place, and manner ("TPM") regulation is this:
"[R]estrictions of this kind are valid provided [1] that they are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels of communication of the information." (Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 293 (numbers added).)
Although phrased differently, the two tests are, in practice, "little, if any, different" (id. at p. 298), and the high court appears to use them interchangeably. (See, e.g., City Council of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789, 804-805 (using O'Brien test in a TPM case).) That is important, because the O'Brien wording sheds considerable light on the requirement of the TPM test that the restriction be "justified without reference to the content." (See infra at p. 20.)
While "bright-line" rules do have their virtues in appropriate situations, this is not one of them. If government is forbidden to look at the content of the regulated speech in delimiting the scope of the regulation, then it cannot "narrowly tailor" the regulation to only the category of speech affecting the "significant government interest." Plaintiffs would have the Court require the drafters to narrowly tailor and then take away their needles and thread. Cf. Exodus 6:18 (bricks without straw). Since plaintiffs are opposed to this entire species of regulation, creating an impossible task may be precisely what they have in mind.
Plaintiffs' thesis collides head-on with multiple United States Supreme Court precedents. The most obvious of these are the cases on zoning of so-called "adult" entertainment businesses, including Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 and Young v. American Mini Theatres, Inc. (1976) 427 U.S. 50. To decide whether a theater is subject to those ordinances, one would obviously have to look at the films. (See Young, at p. 53.) A city that does not want a porn shop next to a school is not required to bar a theater showing "101 Dalmatians" from the same location merely to maintain content neutrality.
Plaintiffs acknowledge that these cases are inconsistent with their proffered "general rule" but claim that they are a "de facto exception" to that rule. (Resp. Brief at p. 39.) They further claim that the exception is limited to "sexually explicit" speech. (Id. at p. 40.) There is no "exception." These cases fit within the general rule as properly understood, as the opinions themselves clearly state.
In Young, the plurality opinion of Justice Stevens expressly warns against a literal reading of broad statements, like the one engaged in by plaintiffs in the present case. (427 U.S. at p. 65.) The plurality notes many areas where speech is categorized by content for the purpose of determining whether and to what extent it is subject to regulation. (Id. at pp. 65-70.) The key is that "the regulation . . . is unaffected by whatever social, political, or philosophical message a film may be intended to communicate . . . ." (Id. at p. 70.) Justice Powell, concurring, notes the connection between neutrality in this sense and the government interests involved. (See id. at p. 82, fn. 6.) The plurality does note that "adult" films occupy a lower place in the pantheon of First Amendment values than "political debate" (id. at p. 70; cf. Burson v. Freeman (1992) 504 U.S. 191, 196 ("fullest and most urgent application" of First Amendment to political speech) (internal quotation marks omitted)), but this is a far cry from carving out a special exception making sexually explicit but nonobscene speech different from all other subjects. Such a separation would be contrary to many cases, including the recent decision in Reno v. ACLU (1997) 521 U.S. 844, 874-875.
The principles set forth in the two Young opinions were applied by a majority in Renton. The dissent protested that "[t]he ordinance discriminates on its face against certain forms of speech based on content." (Renton, supra, 475 U.S. at p. 57 (dis. opn. of Brennan, J.).) This contention was based on precisely the mode of analysis used by the plaintiffs in the present case. A theater was subject to the restrictions or not depending on the content of the films. (Compare ibid. with Resp. Brief at p. 16.)
The majority rejected this analysis. Stating the test, the majority referred to "so-called 'content neutral' time, place, and manner regulations" (Renton, supra, 475 U.S. at p. 47, italics added), reaffirming that this term is not to be taken absolutely literally. The majority emphasized that the ordinance was not aimed at the content, but rather at the "secondary effects." (Ibid., italics in original.) Thus, " 'content-neutral' speech regulations [are defined] as those that are 'justified' without reference to the content of the regulated speech." (Id. at p. 48, quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc. (1976) 425 U.S. 748, 771, italics added by the Renton Court.) Contrary to plaintiffs' contention that this is a special rule for sexually explicit speech only, Renton cites four cases for this proposition, none of which involves sexually explicit speech. (Id. at pp. 48-49, citing Virginia Pharmacy Board (prescription drugs); Clark, supra, 468 U.S. at p. 293 (protest regarding homelessness); Heffron v. International Soc. for Krishna Consciousness, Inc. (1981) 452 U.S. 640, 648 (soliciting for religious organization); Police Dept. of Chicago v. Mosley (1972) 408 U.S. 92, 95-96 (protest of racial discrimination in school).)
Regan v. Time, Inc. (1984) 468 U.S. 641 provides an example of the application of the Young/Renton principle outside the realm of "adult" businesses. Congress had forbidden photographic reproductions of currency (id. at p. 643) but had made exceptions "for philatelic, numismatic, educational, historical, or newsworthy purposes" (id. at p. 644), provided the illustrations were black and white and either oversized or undersized. (Id. at pp. 644-645.) The "purposes" limitation was content based and struck down. (Id. at p. 648.) The permissibility of the use depended on the government's assessment of the message being conveyed. (Ibid.) The color and size restrictions, however, were different.
Beyond question, the color of a graphic image is a part of its content in the simplistic sense that plaintiffs in this case assert. The Mona Lisa would be a far different painting if Lisa were blonde. Even so, the color restriction in Regan was considered content neutral.
"Compliance with the color and size requirements does not prevent Time from expressing any view on any subject or from using illustrations of currency in expressing those views." (Id. at p. 656 (plur. opn. of White, J.).)
As plaintiffs correctly note, viewpoint-based restrictions are only a subset of content-based restrictions (see Resp. Brief at p. 26), albeit a particularly pernicious subset. (See Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819, 829.) A restriction which evenhandedly bans all discussion on both sides of a particular subject matter remains content-based. (See, e.g., Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y. (1980) 447 U.S. 530, 537-538.)
The key here is that the restriction does not prevent the plaintiffs or anyone else from expressing any viewpoint or any subject. The underlying message may be "save the whales," "no nukes," or "nuke the whales." The ordinance applies equally to all. As with the color restriction in Regan, the government is completely indifferent to the message. "[T]he governmental interest is unrelated to the suppression of free expression . . . ." (O'Brien, supra, 391 U.S. at p. 377.)
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