Young v. American Mini Theatres, Inc. (1976) is not a new decision, but it is worth revisiting for its discussion of the First Amendment. In this case, the US Supreme Court affirmed Detroit’s right to zone adult theaters. The Court recognizes the value of the First Amendment, but understands that it is not absolute, particularly with respect to commercial speech. Other values are also important.
Justice Stevens, Opinion of the Court
…A remark attributed to Voltaire characterizes our zealous adherence to the principle that the government may not tell the citizen what he may or may not say. Referring to a suggestion that the violent overthrow of tyranny might be legitimate, he said: “I disapprove of what you say, but I will defend to the death your right to say it.” [n19] The essence of that comment has been repeated time after time in our decisions invalidating attempts by the government to impose selective controls upon the dissemination of ideas.
Thus, the use of streets and parks for the free expression of views on national affairs may not be conditioned upon the sovereign’s agreement with what a speaker may intend to say. [n20] Nor may speech be curtailed because it [p64] invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger. [n21] The sovereign’s agreement or disagreement with the content of what a speaker has to say may not affect the regulation of the time, place, or manner of presenting the speech.
If picketing in the vicinity of a school is to be allowed to express the point of view of labor, that means of expression in that place must be allowed for other points of view as well. As we said in Mosley:
The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Cohen v. California, 403 U.S. 15, 24 (1971); Street v. New York, 394 U.S. 576 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270 (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370 U.S. 375, 388-389 (1962); Terminiello v. Chicago, 337 U.S. 1, 4 (1949); De Jonge v. Oregon, 299 U.S. 353, 365 (1937). To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content [p65] would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, supra at 270.
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an “equality of status in the field of ideas,” and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.
408 U.S. at 95-96. (Footnote omitted.)
This statement, and others to the same effect, read literally and without regard for the facts of the case in which it was made, would absolutely preclude any regulation of expressive activity predicated in whole or in part on the content of the communication. But we learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached. [n22] When we review this Court’s actual adjudications in the First Amendment area, we find this to have been the case [p66] with the stated principle that there may be no restriction whatever on expressive activity because of its content.
The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say. [n23] Similarly, it is the content of the utterance that determines whether it is a protected epithet or an unprotected “fighting comment.” [n24] And, in time of war, “the publication of the sailing dates of transports or the number and location of troops” may unquestionably be restrained, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, although publication of news stories with a different content would be protected.
Even within the area of protected speech, a difference in content may require a different governmental response. In New York Times Co. v. Sullivan, 376 U.S. 254, we recognized that the First Amendment places limitations on the States’ power to enforce their libel laws. We held that a public official may not recover damages from a critic of his official conduct without proof of “malice” as specially defined in that opinion. [n25] Implicit in the opinion is the assumption that, if the content of the newspaper article had been different — that is, if its subject matter had not been a public official — a lesser standard of proof would have been adequate. [p67]
In a series of later cases, in which separate individual views were frequently stated, the Court addressed the broad problem of when the New York Times standard of malice was required by the First Amendment. Despite a diversity of opinion on whether it was required only in cases involving public figures, or also in cases involving public issues, and on whether the character of the damages claim mattered, a common thread which ran through all the opinions was the assumption that the rule to be applied depended on the content of the communication. [n26] But that assumption did not contradict the underlying reason for the rule, which is generally described as a prohibition of regulation based on the content of protected communication. The essence of that rule is the need for absolute neutrality by the government; its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator. [n27] Thus, although [p68] the content of a story must be examined to decide whether it involves a public figure or a public issue, the Court’s application of the relevant rule may not depend on its favorable or unfavorable appraisal of that figure or that issue.
We have recently held that the First Amendment affords some protection to commercial speech. [n28] We have also made it clear, however, that the content of a particular advertisement may determine the extent of its protection. A public rapid transit system may accept some advertisements and reject others. [n29] A state statute may permit highway billboards to advertise businesses located in the neighborhood but not elsewhere, [n30] and regulatory commissions may prohibit businessmen from making statements which, though literally true, are potentially deceptive. [n31] The measure of constitutional protection [p69] to be afforded commercial speech will surely be governed largely by the content of the communication. [n32]
More directly in point are opinions dealing with the question whether the First Amendment prohibits the State and Federal Governments from wholly suppressing sexually oriented material on the basis of their “obscene character.” In Ginsberg v. New York, 390 U.S. 629, the Court upheld a conviction for selling to a minor magazines which were concededly not “obscene” if shown to adults. Indeed, the Members of the Court who would accord the greatest protection to such materials have repeatedly indicated that the State could prohibit the distribution or exhibition of such materials to juveniles and unconsenting adults. [n33] Surely the First Amendment does [p70] not foreclose such a prohibition; yet it is equally clear that any such prohibition must rest squarely on an appraisal of the content of material otherwise within a constitutionally protected area.
Such a line may be drawn on the basis of content without violating the government’s paramount obligation of neutrality in its regulation of protected communication. For the regulation of the places where sexually explicit films may be exhibited is unaffected by whatever social, political, or philosophical message a film may be intended to communicate; whether a motion picture ridicules or characterizes one point of view or another, the effect of the ordinances is exactly the same.
Moreover, even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire’s immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen’s right to see “Specified Sexual Activities” exhibited in the theaters of our choice. Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis [p71] for placing them in a different classification from other motion pictures.
The remaining question is whether the line drawn by these ordinances is justified by the city’s interest in preserving the character of its neighborhoods. On this question, we agree with the views expressed by District Judges Kennedy and Gubow. The record discloses a factual basis for the Common Council’s conclusion that this kind of restriction will have the desired effect. [n34] It is not our function to appraise the wisdom of its decision to require adult theaters to be separated, rather than concentrated in the same areas. In either event, the city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.
Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, [n35] even though the determination of whether a [p72] particular film fits that characterization turns on the nature of its content, we conclude that the city’s interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures. We hold that the zoning ordinances requiring that adult [p73] motion picture theaters not be located within 1,000 feet of two other regulated uses does not violate the Equal Protection Clause of the Fourteenth Amendment…
Harvard Law Professor Frederick Schauer’s “The Boundaries of the First Amendment”; Government Regulates Many Kinds of Speech
Although the First Amendment refers to freedom of “speech,” much speech remains totally untouched by it. Antitrust law, securities regulation, the law of criminal solicitation, and most of the law of evidence, for example, involve legal control of speech lying well beyond the boundaries of the First Amendment’s concern. It is not that such regulation satisfies a higher burden of justification imposed by the First Amendment. Rather, the First Amendment does not even show up in the analysis. The explanation for lack of First Amendment coverage lies not in a theory of free speech or in legal doctrine, but instead in an often serendipitous array of political, cultural, and economic factors determining what makes the First Amendment salient in some instances of speech regulation but not in others. Because the First Amendment’s cultural magnetism attracts a wide variety of claims, nonlegal factors, far more than legal ones, determine which opportunistic claims to First Amendment attention will succeed and which will not. Legal doctrine and free speech theory may explain what is protected within the First Amendment’s boundaries, but the location of the boundaries themselves–the threshold determination of what is a First Amendment case and what is not–is less a doctrinal matter than a political, economic, social, and cultural one.
US Supreme Court Sets Reasonable Guidelines for Adult-Use Zoning in City of Los Angeles v. Alameda Books (2002)
Renton requires that municipal ordinances receive only intermediate scrutiny if they are content neutral. There is less reason to be concerned that municipalities will use these ordinances to discriminate against unpopular speech.
Ulysses S. Grant: Matching the Constitution to Present Realities
We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.
WMass Librarians: No Sign of Censorship Following Adult-Use Zoning
We believe that these libraries’ experience strengthens our case that local citizens can be trusted to implement modest regulations on adult businesses, without harming the cultural vibrancy of Northampton.