| Boos v. Barry
(No. 86-803)
255 U.S.App.D.C.19, 798 F.2d 1450, affirmed in part and reversed in part. |
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| Syllabus
| Opinion
[ O'Connor ] | Concurrence
[ Brennan ] | CDInPart
[ Rehnquist ] |
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Boos v. Barry
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and concurring in the judgment.
I join all but Part II-A of JUSTICE O'CONNOR's opinion. I also join Part II-A to the extent it concludes that, even under the analysis set forth in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the display clause constitutes a content-based restriction on speech that merits strict scrutiny. Whatever "secondary effects" means, I agree that it cannot include listeners' reactions to speech. Cf. Hustler Magazine, Inc. v. Falwell, ante p. 46. I write separately, however, to register my continued disagreement with the proposition that an otherwise content-based restriction on speech can be recast as "content-neutral" if the restriction "aims" at "secondary effects" of the speech, see Renton, supra, at 56 (BRENNAN, J., joined by MARSHALL, J., dissenting), [p335] and to object to JUSTICE O'CONNOR's assumption that the Renton analysis applies not only outside the context of businesses purveying sexually explicit materials, but even to political speech.
The dangers and difficulties posed by the Renton analysis are extensive. Although in this case it is easy enough to determine that the display clause does not aim at a "secondary effect" of speech, future litigants are unlikely to be so bold or so forthright as to defend a restriction on speech with the argument that the restriction aims to protect listeners from the indignity of hearing speech that criticizes them. Rather, they are likely to defend content-based restrictions by pointing, as JUSTICE O'CONNOR suggests, to secondary effects like "congestion, . . . visual clutter, or . . . security. . . ." Ante at 485 U.S. 321"]321. But such secondary effects offer countless excuses for content-based suppression of political speech. No doubt a plausible argument could be made that the political gatherings of some parties are more likely than others to attract large crowds causing congestion, that picketing for certain causes is more likely than other picketing to cause visual clutter, or that speakers delivering a particular message are more likely than others to attract an unruly audience. Our traditional analysis rejects such a priori categorical judgments based on the content of speech, 321. But such secondary effects offer countless excuses for content-based suppression of political speech. No doubt a plausible argument could be made that the political gatherings of some parties are more likely than others to attract large crowds causing congestion, that picketing for certain causes is more likely than other picketing to cause visual clutter, or that speakers delivering a particular message are more likely than others to attract an unruly audience. Our traditional analysis rejects such a priori categorical judgments based on the content of speech, Police Department of Chicago v. Mosley, 408 U.S. 92, 100-101 (1972), requiring governments to regulate based on actual congestion, visual clutter, or violence rather than based on predictions that speech with a certain content will induce those effects. The Renton analysis, however, creates a possible avenue for governmental censorship whenever censors can concoct "secondary" rationalizations for regulating the content of political speech.
Moreover, the Renton analysis provides none of the clear lines or sanctuaries the First Amendment demands. The traditional approach sets forth a bright-line rule: any restriction on speech, the application of which turns on the content [p336] of the speech, is a content-based restriction regardless of the motivation that lies behind it. That, to my mind, has always been implicit in the fact that we term the test a "content-based" test rather than a "motivation-based" test. The traditional rule thus provides clear guidance. Governments can ascertain the scope of impermissible regulation. Individuals can ascertain the scope of their constitutional protection. The Renton analysis, in contrast, plunges courts into the morass of legislative motive, a notoriously hazardous and indeterminate inquiry, particularly where, as under the Renton approach, the posited purpose flies in the face of plain statutory language. See, e.g., United States v. O'Brien, 391 U.S. 367, 383-384 (1968). And even where the motivational inquiry can be resolved, the Renton approach saddles courts with a fuzzy distinction between the secondary and direct effects of speech, a distinction that is likely to prove just as unworkable as other direct/indirect distinctions in constitutional jurisprudence have proved. Compare, e.g., Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977) (criticizing and wisely rejecting the distinction between direct and indirect taxation of interstate commerce); L. Tribe, American Constitutional Law § 6-4, p. 408 (2d ed.1988) (noting that the Court abandoned a similar distinction between direct and indirect regulation of interstate commerce).
This indeterminacy is hardly Renton's worst flaw, for the root problem with the Renton analysis is that it relies on the dubious proposition that a statute which on its face discriminates based on the content of speech aims not at content but at some secondary effect that does not itself affect the operation of the statute. But the inherently ill-defined nature of the Renton analysis certainly exacerbates the risk that many laws designed to suppress disfavored speech will go undetected. Although an inquiry into motive is sometimes a useful supplement, the best protection against governmental attempts to squelch opposition has never lain in our ability to assess the purity of legislative motive, but rather in the requirement [p337] that the government act through content-neutral means that restrict expression the government favors as well as expression it disfavors. In Justice Jackson's felicitous words of nearly 40 years ago: "Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation." Railway Express Agency, Inc. v. New York, 336 U.S. 106, 113 (1949) (concurring opinion). Moreover, even if we could be confident about our ability to determine that a content-based law was intended to aim at the "secondary effects" of certain types of speech, such a law would still offend fundamental free speech interests by denying speakers the equal right to engage in speech and by denying listeners the right to an undistorted debate. These rights are all the more precious when the speech subject to unequal treatment is political speech and the debate being distorted is a political debate. And the dangers, the uncertainties, and the damage to free and equal debate caused by the Renton analysis are all the more regrettable given the unlikelihood of any legitimate governmental interest in a content-based restriction on speech (especially political speech) and the ample alternatives governments have for advancing content-neutral goals through content-neutral regulation. At least, in Renton, there was a plausible argument that the secondary effect sought to be regulated -- the social decay of neighborhoods -- could not be directly regulated in the way that congestion, visual clutter, or violence can be. But absent a demonstrable showing of that type of necessity, it is hard to see how a convincing argument could ever be made that a content-based regulation does not aim at content. Nor can I conceive of any situation where a plausible argument could be made that regulating the content of political speech is necessary to regulate content-neutral secondary effects.
Until today, the Renton analysis, however unwise, had at least never been applied to political speech. Renton itself seemed to confine its application to "businesses that purvey [p338] sexually explicit materials." 475 U.S. at 49, and n. 2. Indeed, the same day that we decided Renton, three of the Justices who joined it reiterated the traditional test in Pacific Electric Co. v. Public Utilities Comm'n, 475 U.S. 1, 20 (1986) (plurality opinion of Powell, J.) ("For a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech to be regulated"). See also Widmar v. Vincent, 454 U.S. 263 (1981) (evaluating a prohibition on the religious use of university buildings under the strict scrutiny applicable to content-based regulations even though the prohibition was aimed at avoiding perceived Establishment Clause problems, a secondary effect of the speech). [*] True, today's application of the Renton analysis to political speech is dictum: the challenged statute would be treated as content-based under either Renton or the traditional approach, and the opinion could easily have stated simply that we need not reach the issue whether Renton applies to political speech because, even under Renton, the law constitutes a content-based restriction. It is nonetheless ominous dictum, for it could set the Court on a road that will lead to the evisceration of First Amendment freedoms. I can only hope that, when the Court is actually presented with a case involving a content-based regulation of political speech that allegedly aims at so-called secondary effects of that speech, the Court will recognize and avoid the pitfalls of the Renton approach.
* And, as suggested above, strong arguments exist for, at a minimum, confining the Renton analysis to situations where the secondary effects sought to be regulated are not amenable to direct regulation.