American Bar Association
Forum on Communications Law
Playboy and City of Erie: Shift Toward Balancing?
Donald B. Verrilli, Jr., and Deanne E. Maynard
Justice Brennan's description of sex as a "a great and mysterious motive force" in Roth v. United States1 many years ago pretty well captures (albeit unintentionally) the effect erotic expression seems to have on First Amendment doctrine. Consider two important cases from the just concluded Term: United States v. Playboy Entertainment Group, Inc.2 and City of Erie v. Pap's A.M., TDBA "Kandyland."3
In Playboy, the Court struck down section 505 of the Telecommunications Act of 1996.4 To shield children from exposure to sexually explicit cable programming, section 505 required cable operators providing channels principally dedicated to such programming either to ensure that it could never be received by a household that did not want it, or to limit such programming to the hours of 10 p.m. to 6 a.m.
Because most cable operators cannot fully scramble their signals, the practical effect of section 505 was to limit sexual content to the safe harbor time slots. Striking down the law, Justice Kennedy staked out the rhetorical high ground. It did not matter that "many adults themselves would find the material highly offensive" because the Court should not "be influenced . . . by the perception that . . . the speech is not very important."5 Indeed, "[t]he history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly."6 Section 505 restricted speech because of its sexually explicit content and thus had to meet the exacting requirements of strict scrutiny-requirements that could not be met because the government had not proved to the Court's satisfaction that there were in fact many instances of children inadvertently seeing such programming, or that less drastic regulatory options were inadequate to protect children from unwanted exposure.
In City of Erie, the Court upheld a city ordinance making it unlawful to appear in public "in a state of nudity." Seven of the Justices (in several opinions) declined to apply strict scrutiny to the law, even though the preamble to the ordinance stated that it was enacted "for the purpose of limiting a recent increase in nude live entertainment within the City," the same genre of erotic expression that received the full measure of First Amendment protection in the Playboy decision. City of Erie conveys none of the First Amendment solicitude evident in Playboy for expression that most citizens might consider "shabby, offensive, or even ugly." To the contrary, Justice O'Connor's plurality opinion barely concealed its disdain, grudgingly conceding that nude erotic dancing is "expressive conduct" but suggesting that "it falls only within the outer ambit of the First Amendment's protection."7 It was enough for the majority that the law on its face purported to regulate conduct (nudity), not expression (dancing), and that the city had claimed an interest in combating "secondary effects" of nude dancing, including prostitution, public intoxication, and the other usual suspects. As for proving that these problems were real and that the ordinance was a narrowly tailored means of materially alleviating them, the city got a free pass. Justice O'Connor's plurality opinion would allow the city to rely on the general experience of other jurisdictions and the collective intuition of the Erie City Council based on its experience with local conditions. Justice Scalia would not have subjected the city to any burden of proof at all. This was a far cry from the evidentiary burden to which the United States was held in Playboy. More ominously, it was a far cry even from the evidentiary burden to which governments had been held in cases applying intermediate scrutiny, as Justice Souter correctly observed in his separate opinion.
It is as if these decisions, issued a scant two months apart, occupy parallel universes that are utterly unconnected with each other. The same genre of expression was subjected to drastically different judicial treatment. Imagine if Playboy had been cablecasting the live nude dancing shows from Erie's adult establishments. The cablecast of the dancing would be protected by the Playboy decision, but City of Erie would not protect the dancing itself. Muddying matters further, Justice Kennedy wrote both the stirring opinion in Playboy and joined Justice O'Connor's opinion in City of Erie. None of the opinions in Playboy even cited the City of Erie decision, much less made any effort to explain why the Playboy case differed.
Of course, any student of constitutional law could tell you that these discrepancies are simply the result of the differing standards of review applied in each case. Section 505 of the Tele-communications Act directly regulated speech for the purpose of limiting its availability, whereas the City of Erie regulated conduct for the purpose of limiting bad consequences associated with that conduct. Thus, strict scrutiny applied in Playboy, intermediate scrutiny in City of Erie. Perhaps the City of Erie Court erred in choosing intermediate scrutiny, but that has happened before and will likely happen again. Enough said.
We think the issue is worth pushing a little further. Specifically, we believe that these decisions reflect, and are likely to produce, even more confusion on perhaps the two most important doctrinal questions in First Amendment law: (1) how does one decide what level of scrutiny to apply, and (2) what must government show to sustain a challenged law.
Indeed, looking at the two decisions together suggests further movement by the Court away from a First Amend-ment regime of legal rules and toward an interest-balancing regime. The Court still uses the language of rule-based decision making, but the underlying judgment about which rule will be applied is governed by inquiries-such as whether the regulation is aimed at the "communicative impact" of the speech-that involve the weighing of various interests.
Moreover, once the level of review is determined, the amount of evidentiary support required by the Court appears increasingly to depend on its views of the nature and strength of interests at stake. These latter phenomena are suggested by Justice Breyer's dissent in Playboy: he agrees with the Court that strict scrutiny is applicable but, based on his balancing of various interests, he would require very little evidentiary support to satisfy it.
City of Erie
As noted, City of Erie presented the question of the constitutionality of an ordinance that banned appearing in public "in a state of nudity." The preamble stated that the city council was adopting the regulation
for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety, and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases, and other deleterious effects.8
To comply with the ordinance, the dancers had to wear, at a minimum, pasties and a G-string.
Kandyland, an entertainment establishment in Erie featuring nude erotic dancing, challenged the ordinance. The trial court struck it down, but the intermediate state appellate court reversed. On appeal, the Pennsylvania Supreme Court held the nudity provisions unconstitutional under the First and Fourteenth Amendments. The Court concluded that, "although one of the purposes of the ordinance was to combat negative secondary effects, 'inextricably bound up with this stated purpose is an unmentioned purpose . . . to impact negatively on the erotic message of the dance.' "9 Applying strict scrutiny, the state supreme court held that imposing sanctions on those who commit sex crimes would be a more narrowly tailored way to combat the secondary effects.
The U.S. Supreme Court granted certiorari and Justice O'Connor wrote for a plurality that included Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Conceding that "nude dancing of the type at issue here is expressive conduct," Justice O'Connor concluded that which standard of review applied turned on "whether the State's regulation is related to the suppression of expression."10 The plurality found the statute facially neutral because it regulated public nudity, not merely nudity in erotic expression. It rejected arguments that the preamble to the ordinance revealed that its actual purpose was to prohibit erotic dancing. According to the plurality, the Pennsylvania Supreme Court had construed the preamble's language "to mean that one purpose of the ordinance was 'to combat negative secondary effects.' "11 Analogizing the case to United States v. O'Brien,12 Justice O'Connor concluded that this ordinance, like the one in O'Brien outlawing draft card burning, punished only the noncommunicative impact of conduct. "[T]he ordinance prohibiting public nudity is aimed at combating crime and other negative secondary effects . . . and not at suppressing the erotic message conveyed by this type of nude dancing."13
Because one purpose of the ordinance was to combat secondary effects, Justice O'Connor refused to consider Kandyland's "argument that the ordinance is 'aimed' at suppressing expression through a ban on nude dancing."14 Invoking O'Brien and City of Renton v. Playtime Theatres, Inc.,15 the plurality noted that "[a]s we have said before, . . . this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive."16 Accordingly, the plurality concluded that the ordinance was content-neutral because the city's "asserted interest" in combating secondary effects "is unrelated to the suppression of the erotic message conveyed by nude dancing."17 This was so, "[e]ven if the city thought that nude dancing at clubs like Kandy-land constituted a particularly problematic instance of public nudity."18
Applying O'Brien, the plurality found the regulation justified.19 Most of the plurality's discussion focused on whether the regulation furthers an important or substantial government interest. Justice O'Connor had no trouble concluding that the "asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important."20 Most strikingly, the plurality saw no need to require the city to make any evidentiary showing in support of its "secondary effects" justification. The city need not have conducted new studies to determine that nude dancing establishments posed a threat of negative secondary effects in Erie, and could rely on the experience of other cities and the evidentiary foundation in cases such as Renton.
The plurality went further and accorded to the city officials a type of deference usually reserved to the administrative agencies, holding that the city council members were likely to have firsthand knowledge of the effects of dancing establishments in Erie and could take "official notice" of such facts. In effect, the plurality shifted the burden to Kandyland to disprove the city's conclusions: "to this day, Kandyland has never challenged the city council's findings or cast any specific doubt on the validity of those findings."21
The plurality also rejected the notion that the regulation, by allowing erotic dancing as long as the dancers wore the requisite minimal attire, did not materially further the government's stated interests. Although conceding that the ordinance may not greatly reduce secondary effects, the plurality found it was sufficient to meet the requirement of O'Brien that it further the interest in combating such effects. Accordingly, the plurality held that all four factors of the O'Brien standard were met, and that the regulation was valid under the First Amendment.
Justice Souter's concurring opinion provided a fifth vote for the proposition that intermediate scrutiny applied. He concluded that "Erie's stated interest in combating the secondary effects associated with nude dancing establishments is an interest unrelated to the suppression of expression under United States v. O'Brien."22 Justice Souter departed from the plurality with respect to the evidentiary showing required to satisfy that standard. Referring to a string of recent decisions, Justice Souter stated that "[t]he upshot of these cases is that intermediate scrutiny requires a regulating government to make some demonstration of an evidentiary basis for the harm it claims to flow from the expressive activity, and for the alleviation expected from the restriction imposed."23 He found the record in this case "deficient in its failure to reveal any evidence on which Erie may have relied, either for the seriousness of the threatened harm or for the efficacy of its chosen remedy."24 In an unusual judicial mea culpa, Justice Souter acknowledged that he was now making a demand for "an evidentiary basis that I failed to make when I concurred in Barnes," but "after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than
I first insisted."25 Justice Souter would have remanded to give the city an opportunity to satisfy that evidentiary obligation.
Justice Scalia, joined by Justice Thomas, concurred in the judgment. Justice Scalia did not believe that the First Amendment applied to this case at all because he construed the statute as a general one regulating only conduct. Moreover, he reasoned that, even if he were to conclude that the ordinance targeted nude dancing, he nevertheless would uphold it because "[w]hen conduct other than speech itself is regulated, it is my view that the First Amendment is violated only '[w]here the government prohibits conduct precisely because of its communicative attributes.' "26 He believed that, even if one established that the city's intent was to ban nude dancing, "that would not establish an intent to suppress what (if anything) nude dancing communicates."27
Justice Stevens, joined by Justice Ginsburg, dissented. Justice Stevens criticized the Court's use of the secondary effects doctrine to justify a total ban on speech as having "grave implications for basic free speech principles."28 According to Justice Stevens, the Court previously had limited the secondary effects rationale to zoning cases because a "dispersal that simply limits the places where speech may occur is a minimal imposition whereas a total ban is the most exacting of restrictions."29 Justice Stevens also objected to the plurality's conflating of the "secondary effects" analysis with that of "incidental burdens," particularly its use of incidental burdens cases to support its conclusion that the regulation was unrelated to speech. "The Court cannot have its cake and eat it too-either Erie's ordinance was not aimed at speech and the Court may attempt to justify the regulation under the incidental burdens test, or Erie has aimed its law at the secondary effects of speech, and the Court can try to justify the law under that doctrine."30 To Justice Stevens, the proper analysis was clear: both the ordinance and statement's of the city council members revealed that the ordinance was prohibiting nude dancing " 'precisely because of its communicative attributes.' "31 As such, at least to Justices Stevens and Ginsburg, it was "patently invalid."32
Playboy involved a congressional statute regulating the problem of "signal bleed" from sexually oriented cable channels. Like other premium cable channels, sexually oriented channels are scrambled by cable operators so that only viewers who purchase the channels can view them. Signal bleed
occurs when discernible images appear from time to time on the scrambled screen. To address the problem of signal bleed of sexually explicit programming, Congress added a specific provision to the Telecommunications Act of 1996.33 Section 505 of the Act "requires cable television operators who provide channels 'primarily dedicated to sexually oriented programming' either to 'fully scramble or otherwise fully block' those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as the time between 10 p.m. and 6 a.m."34
Playboy challenged the regulation pursuant to a jurisdictional provision in the Act establishing three-judge district courts. After a full trial, the court concluded that the statute violated the First Amendment. The court found that most cable operators had " 'no practical choice but to curtail [the targeted] programming during the [regulated] sixteen hours or risk the penalties imposed . . . if any audio or video signal bleed occur[red] during [those] times.' "35 Given its finding that " '30 to 50% of all adult programming is viewed by households prior to 10 p.m.,' the result was a significant restriction of communication."36 The court concluded that the statute was content-based and that the government had not chosen the least restrictive means to further its interests. Specifically, another provision of the same statute provided a plausible, less restrictive alternative: section 504 requires a cable operator, "upon request by a cable service subscriber . . . without charge, [to] fully scramble or otherwise fully block any channel the subscriber does not wish to receive."37 The district court concluded that as long as cable subscribers were given adequate notice of this opportunity, section 504 would be an effective, less restrictive alternative.
On direct appeal, the U.S. Supreme Court affirmed in a five-to-four decision written by Justice Kennedy. The Court first concluded that the statute was content-based because it applied only to cable channels primarily dedicated to " 'sexually explicit adult programming or other programming that is indecent.' "38 The Court also looked to the statute's purpose: "[t]he overriding justification for the regulation is concern for the effect of the subject matter on young viewers."39 According to the Court, such a justification, which referred to the content of the speech and its effect on listeners, was "the essence of content-based regulation."40
The Court specifically rejected the dissent's reliance on Renton and other zoning cases, stating that because the statute "burdens speech because of its content, it must receive strict scrutiny."41
In applying that standard, the Court stated that no one disputed the district court's conclusion that section 504 was a less restrictive alternative, the question was whether it was effective. The Court also questioned whether the harm the government sought to alleviate was a real one. The Court placed the burden of proving that it was ineffective on the government: "[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions."42
The Court concluded that the government's evidence was insufficient in two respects.43 First, there was "little hard evidence of how widespread or how serious the problem of signal bleed is."44 The government had introduced anecdotal evidence of individual instances of exposure to signal bleed and expert evidence as to the total number of homes with the potential to be exposed. But the Court faulted the government for failing to produce any survey-type evidence of how likely a child is to view a discernible explicit image or any proof of the duration or quality of the pictures and sound. In essence, the Court concluded the government had failed to prove the existence of any real problem, especially one sufficient to justify a nationwide daytime ban on speech.
Second, the Court held that the government had failed to produce evidence that section 504 with adequate notice would not be an effective alternative. The Court noted the lack of any evidence that "a well-promoted voluntary blocking provision would not be capable at least of informing parents about signal bleed . . . and about their rights to have the bleed blocked."45 The Court rejected arguments that section 504 would require consumers to overcome, may be more inconvenient, or may not be perfect. It also rejected the government's argument that such a widespread restriction could be justified by society's independent interest in protecting children who would be unprotected if parents fail to act. Having found that the government failed in its evidentiary proof, the Court held the statute unconstitutional.
Justice Breyer dissented and was joined by Chief Justice Rehnquist and Justices O'Connor and Scalia. Conceding that strict scrutiny applied, the dissent concluded that the government had satisfied its evidentiary burden. Justice Breyer was satisfied that the government's anecdotal and expert evidence established a compelling interest in addressing the signal bleed problem. Justice Breyer then urged a more flexible "least restrictive means" analysis than the majority had applied. In Justice Breyer's view, the less restrictive alternative inquiry requires "a judge not to apply First Amendment rules mechanically, but to decide whether, in light of the benefits and potential alternatives, the statute works speech-related harm (here, to adult speech) out of proportion to the benefits that the statute seeks to provide (here, child protection)."46 Given the "empirical leeway" allowed the government by this balancing test, Justice Breyer concluded that the record established that section 504 was not a "similarly effective alternative" to meet the government's asserted objectives.47 Justice Breyer found persuasive the government's arguments regarding its independent interest in helping parents protect children and found sufficient the evidence of the difficulties and inconvenience of the section 504 option.48
Intermediate versus Strict Scrutiny
The opinions in City of Erie and Playboy raise interesting questions about when the Court will apply strict scrutiny. Given the old, but accurate, axiom that strict scrutiny is often fatal in fact, concluding that strict scrutiny applies is usually outcome-determinative in First Amendment cases. The inquiry into the appropriate standard of review is therefore critical.
In Playboy, the Court spent little time or analysis in concluding that the law was content-based: "The speech in question is defined by its content, and the statute which seeks to restrict it is content based."49 This conclusion seems plainly correct. The restrictions of the statute only apply to channels that are primarily dedicated to "sexually explicit adult programming or other programming that is indecent."50 The Court also looked to the purposes behind the statute, noting that the statute's "overriding justification" was to limit the effect of unscrambled material on young viewers.51 This, according to the Playboy Court, "is the essence of content-based regulation."52
The Court's reasoning here was truly categorical. Finding that both the statute on its face, as well as its purported justification, turned on the content of the speech at issue, the Court applied strict scrutiny. It did not balance competing interests. Indeed, the Court found strict scrutiny despite the possibility that the speech at issue was "not very important" and despite the competing (and admittedly constitutionally valid) interest, as highlighted by Justice Breyer's dissent, in protecting children from indecent speech.
The mode of analysis in City of Erie was quite different. To be sure, Justice O'Connor did look to the language of the statute. But that language cuts both ways. On the one hand, the statute (at least by its terms) applies broadly to all instances of appearing "in a state of nudity," irrespective of whether there was any expression involved. On the other hand, the preamble squarely states that its purpose is to limit "nude live entertainment," activity that the plurality conceded was "expressive."53 Under the rationale employed in Playboy, this justification would seem to render the ordinance "the essence of content-based regulation."54 Just as in Playboy, its intended purpose-expressed right in the ordinance itself-was to suppress speech.
Yet the City of Erie plurality determined that the ordinance was content-neutral. To reach this result, Justice O'Connor focused on the other justifications offered by the city, ones purportedly unrelated to the "communicative impact" of the speech. These included that the regulation regulated the conduct of nudity, regardless of whether it contained expressive elements, and that the ordinance was aimed at combating "secondary effects, such as the impacts on public health, safety, and welfare."55 Based on that conclusion, the plurality determined that intermediate scrutiny was all that was required.
Are the rationales in Playboy and City of Erie reconcilable? Perhaps. Playboy does provide one possible clue: in quoting language from Justice O'Connor's opinion in Boos v. Barry,56 Playboy emphasizes the "only" in the following quote relating to the statute's justification: "It 'focuses only on the content of the speech and the direct im-pact that speech has on its listeners.' "57 Thus, in Playboy, the only justification apparently offered by the government in support of its regulation was one related to the impact of the speech on viewers. In City of Erie, the city offered other nonspeech-related justifications, such as preventing violence, sexual harassment, public intoxication, and prostitution. It is conceivable that, at least for Justice Kennedy, the determinative question is whether the only justification is one related to the communicative impact of the speech at issue, or whether any plausible justification unrelated to communicative impact is offered.
Whatever the explanation for the apparently disparate results in these two cases, and there may not be a satisfactory one, City of Erie threatens First Amendment values. As Justice Stevens noted in his dissent, Justice O'Connor melded together two distinct "noncommunicative" analyses: "secondary effects" and "incidental burdens." The "secondary effects" analysis traditionally has been used to apply intermediate scrutiny to a law that directly regulates speech because of the harms associated with the noncommunicative impact of that speech.58 Prior to this case, however, the "secondary effects" rationale had been used only to uphold "time, place, and manner restrictions," not to uphold a complete ban on speech.59 In contrast, the "incidental burdens" analysis traditionally has been used to apply intermediate scrutiny to statutes that were not directly regulating speech but, in the process of regulating noncommunicative conduct, had the effect of burdening speech.60 By melding these two analyses together, the City of Erie plurality was able to conclude that intermediate scrutiny should apply to a complete ban on speech whose purpose (or at least one purpose) was to prohibit such speech, rather than merely to channel it to different places or times.
This mode of analysis could be used to pernicious effect. The Court seemingly had moved away from "secondary effects" analysis. In recent years, it has refused to apply it to regulations restricting things ranging from the Internet61 to commercial newsracks62 and burning a cross in someone's yard.63 But City of Erie in many ways appears to revive that doctrine, albeit in a different form. The "noncommunicative" impact analysis as applied in City of Erie has the same practical result as the "secondary effects" analysis and, indeed, might even have worse consequences for the values underlying the First Amendment. The City of Erie plurality upheld a complete ban on speech. Moreover, and potentially even more troublesome, the "noncommunicative impact" analysis allowed the plurality to recast an ordinance that was content-based as content-neutral. This was a result that had been feared by dissenters to the "secondary effects" analysis, but that had never come to pass.64
"Secondary effects" arguments are inherently destabilizing. At some level, almost all regulation of expression could be justified as an effort to prohibit its "secondary effects." For example, suppression of cable programs such as those at issue in Playboy might be justified as an effort to prevent the "secondary effects" of sex crimes perpetrated by those who watch such programs. Indeed, such a rationale might apply to any justification that did not seek to ban speech on the basis of its potential to change the attitudes or beliefs of the listener. Of course, current doctrine seeks to guard against this possibility by examining whether the purported "secondary effects" are caused by the communicative impact of the expression (which triggers strict scrutiny) or are instead related in some other way to the expression (which justifies intermediate scrutiny). The existence of a "secondary effects" analysis thus puts significant pressure on the "communicative impact" inquiry.
Looking at whether a statute is supported by a justification unrelated to the communicative impact of speech, or whether it regulates the noncommunicative aspect of conduct, does have a place in First Amendment analysis. It is fine to look to noncommunicative justifications when there is no evidence in the record that what the legislature really was trying to do, at least in part, was censor speech. This was the case with the restrictions on camping in Clark v. Community for Creative Non-Violence65 and the must-carry provisions reviewed in the Turner cases.66 But City of Erie provides reason to question carefully in which situations noncommunicative justifications should be accepted. Intermediate scrutiny should not be applied to a total ban just because the government's litigators can concoct at least one after-the-fact justification that is not related to communicative impact.
Playboy and City of Erie also send confusing signals about the showing that the government must make to sustain a law against First Amendment challenge. In the context of strict scrutiny, the Playboy Court held true to the axiom that such scrutiny is strict in theory and fatal in fact. The Court would accept that a compelling governmental interest had been established only if the existence of "an actual problem," widespread exposure of minors to sexually explicit cable programming, "has been proven." Section 505 failed this test because "the government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban."67 The government likewise failed to prove that section 505 was the most narrowly tailored means of achieving its regulatory interests. Specifically, the Court held that the government did not disprove that its interests could be achieved equally effectively by the less restrictive option of giving the public greater notice of the option provided by section 504 of the Act to request that sexually explicit programming be fully blocked. The Court's analysis was extremely rigorous. As Justice Breyer pointed out in his dissent, this was not a case in which the government had failed to assemble a substantial record in support of the law under attack. That the Court would invalidate a law regulating sexually explicit cable programming despite such a record suggests that the First Amendment evidentiary hurdles are high indeed.
The contrast with City of Erie could not be more stark. There, the plurality was content to affirm the ban on public nudity without any evidentiary record whatsoever showing the existence of "an actual problem" or supporting the argument that the law was narrowly tailored to achieve the government's goals without unduly restricting expression. The city was not required to "conduct new studies or produce evidence independent of that already generated by other cities," so long as the city "reasonably believed that evidence to be relevant to the problem that the city addresses."68 Remarkably, the city was entitled to rely on the "particularized expert judgments" of city council members, who are "familiar with commercial downtown Erie" and thus had "first-hand knowledge of what took place at and around nude dancing establishments."69 The plurality deemed it irrelevant that the requirement of pasties and a G-string would not likely do anything to alleviate these purported harms-in vivid contrast to the draconian zoning restrictions that had previously been upheld as measures to combat secondary effects in Renton and Young v. American Mini-Theaters.70 Moreover, the City of Erie Court effectively shifted the burden of proof to Kandyland to disprove the efficacy of the ordinance.
The different standards of review applicable in the two cases cannot satisfactorily explain the chasm. Although it makes abundant sense to require more proof and to afford less deference in cases applying strict scrutiny than in cases applying intermediate scrutiny, the essential requirement that government actually prove the existence of a concrete problem is a well-established feature of intermediate scrutiny review, as Justice Souter's dissent correctly points out. In Edenfield v. Fane,71 the Court applied intermediate commercial speech scrutiny to strike down a Florida law banning in-person solicitation by certified public accountants, on the ground that Florida had no evidence proving that such solicitation posed any risk of harm to consumers. In Greater New Orleans Broadcasters,72 the Court applied intermediate commercial speech scrutiny to strike down a restriction on broadcast advertising of casino gambling, again on the ground that government had not proved the existence of an actual problem that would be alleviated by the restriction. In Turner I,73 after establishing that intermediate scrutiny applied, the Court remanded the case to the trial court for litigation of whether the government could demonstrate with evidence that requiring cable programmers to carry broadcasters was necessary to preserve the vitality and diversity of free over-the-air television. Indeed, in Playboy the Court cited each of these intermediate scrutiny cases as support for the proposition that government cannot rely on mere conjecture, but must prove that a real problem exists in order to sustain laws that restrict expression.
Perhaps the most ominous feature of City of Erie was the means by which the plurality responded to Justice Souter's charge that it had ignored these well-established proof requirements in intermediate scrutiny cases. As the plurality would have it, the decision establishing the very concept of intermediate scrutiny, United States v. O'Brien, refuted any need for the government actually to prove the existence of the supposedly content-neutral problem it seeks to alleviate. In this respect, City of Erie was a leap backwards over two decades of precedent. It is true, as the plurality noted, that "[t]here was no study documenting instances of draft card mutilation or the actual effect of such mutilation on the Government's asserted efficiency interests," and that " O'Brien . . . required no evidentiary showing at all that the threatened harm was real."74 But these features of O'Brien had been eclipsed by Edenfield, Turner, and many other intermediate scrutiny cases.
Playboy and City of Erie are difficult to reconcile because they afford virtually identical speech dramatically different First Amendment treatment.
Attributing these differences purely to the operation of doctrinal standards of review is unsatisfactory. Live nude dancing was afforded the most minimal, least solicitous First Amend-ment scrutiny, whereas cablecasting of substantially identical visual images received the full measure of First Amendment protection. The outcome is in one sense ironic. The Court afforded erotic expression the least protection in the setting in which the expression was least likely to be available to minors or to large audiences, live entertainment in adults-only establishments, whereas the Court aggressively protected such expression when transmitted over mass media. It seems likely that the differences in the medium of expression had an influence. Perhaps something about the absence of any intermediation between the audience and the performers leads the Court to devalue live erotic expression. Alternatively, the Court's reluctance to authorize significant regulation of erotic expression on cable might have been premised on the fear of setting insufficiently protective rules for all types of expression in new media such as cable (or more likely the Internet). Justice Kennedy's opinion suggests as much. At one point, he noted that "[t]echnology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us."75
Our principal concern, though, is with what these decisions say or perhaps portend about the current state of First Amendment doctrine. There seems to be a subterranean migration away from rules-based decision making to one in which balancing plays an increasingly important role.
Intermediate scrutiny has come to be a catch-all category for at least four different types of First Amendment problems: (1) commercial speech cases, which typically involve content-based restrictions on speech the Court has deemed to be of less than full First Amendment value;76 (2) time, place, and manner cases, in which the Court evaluates direct regulations on where, when, and how speech can occur, which are purportedly imposed for purposes unrelated to the suppression of expression;77 (3) incidental burden cases, which involve regulations of conduct that do not usually apply to expression at all;78 and (4) other direct regulation of expression imposed for policy goals unrelated to the communicative impact of expression.79 Because some of these situations involve content-neutral laws and others are content-based, these situations present analytically distinct First Amendment problems and, accordingly, require different inquiries. For example, time, place, and manner restrictions involve regulations that directly impact expression, and the Court traditionally has required that alternative avenues of communication remain open. In contrast, incidental burdens cases generally involve content-neutral regulations and, as long as they are not a subterfuge for content-based regulation, the principal inquiry is whether the regulation is nevertheless too costly for speech interests.
But City of Erie blends these different types of inquiries, looking at the interests that tend to justify upholding regulations without looking at the countervailing interests, to apply intermediate scrutiny to a law whose purpose was to ban speech. This type of blending, if followed in other cases, will make it increasingly difficult to predict which standard of review will apply. Of course, in a balancing regime, it may turn out to be less important which standard of review is applied, as the ground of debate may shift to the evidence.
Indeed, it appears now that the important substantive analytical differences among these types of First Amendment problems have been hidden beneath discussions about the evidence. Evidentiary issues have the attraction of appearing to be about hard facts, not value judgments. But City of Erie shows just how malleable, and subject to manipulation, evidentiary analysis can be. First Amendment doctrine will lose whatever predictability it now has, and cease to be an effective guide to speakers and regulators alike, if all First Amendment issues end up as discussions about the sufficiency of the government's evidentiary burden.
1. 354 U.S. 476, 488 (1957).
2. 120 S. Ct. 1878 (2000).
3. 120 S. Ct. 1381 (2000).
4. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 136 (1996).
5. Playboy, 120 S. Ct. at 1885, 1893.
7. City of Erie, 120 S. Ct. at 1391.
8. Id. at 1391-92 (quoting Pap's A.M. t/d/b/a Kandyland v. City of Erie, 719 A.2d 273, 279 (Pa. 1998)) (emphasis added).
9. Id. at 1389 (quoting City of Erie, 719 A.2d at 279).
10. Id. at 1391 (quotation and citation omitted).
11. Id. at 1392 (quoting City of Erie, 719 A.2d at 279).
12. 391 U.S. 367 (1968).
13. City of Erie v. Pap's A.M., TDBA "Kandyland," 120 S. Ct. 1381, 1392 (2000).
14. City of Erie, 120 S. Ct. at 1392.
15. 475 U.S. 41 (1986).
16. City of Erie, 120 S. Ct. at 1392-93.
17. Id. at 1394.
19. Under O'Brien, "a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377.
20. City of Erie, 120 S. Ct. at 1395.
21. Id. at 1396.
22. Id. at 1402 (Souter, J., concurring in part and dissenting in part).
23. Id. at 1404 (Souter, J., concurring in part and dissenting in part) (emphasis added).
24. Id. at 1404 (Souter, J., concurring in part and dissenting in part).
25. Id. at 1405-06 (Souter, J., concurring in part and dissenting in part).
26. Id. at 1402 (Scalia, J., concurring in judgment) (quoting Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 577 (1991) (Scalia, J., concurring in judgment)).
27. Id. at 1402 (Scalia, J., concurring in judgment).
28. Id. at 1409 (Stevens, J., dissenting).
29. Id. at 1408 (Stevens, J., dissenting).
30. Id. at 1410 (Stevens, J., dissenting).
31. Id. at 1411 (Stevens, J., dissenting) (quoting Barnes, 501 U.S. at 577) (Scalia, J., concurring in judgment)).
32. Id. at 1414 (Stevens, J., dissenting).
33. Pub. L. No. 104-104, 110 Stat. 136, 47 U.S.C. § 561 (1996) (1994 ed., Supp. III).
34. United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1882-83 (2000) (citing 47 U.S.C. § 561(a) (1994 ed., Supp. III); 47 C.F.R. § 76.227 (1999)).
35. Playboy, 120 S. Ct. at 1884 (alteration in original) (quoting Playboy Entertainment Group, Inc. v. United States , 30 F. Supp. 2d 702, 711 (D. Del. 1998)).
36. Id. at 1884 (quoting Playboy, 30 F. Supp. 2d at 711).
37. 47 U.S.C. § 560 (1994).
38. Playboy, 120 S. Ct. at 1885 (quoting 47 U.S.C. § 560 (1994)).
41. Id. at 1887.
42. Id. at 1888.
43. Id. at 1889-93.
44. Id. at 1889.
45. Id. at 1891.
46. Id. at 1901 (Breyer, J., dissenting).
48. Relying on Ginzburg v. United States, 383 U.S. 463 (1966), Justice Scalia filed a separate dissent in which he articulated his view that section 505 could be upheld on the ground that "it regulates the business of obscenity" that can be regulated or even banned. Playboy, 120 S. Ct. at 1895 (Scalia, J., dissenting). Justice Stevens responded to this dissent, arguing in a separate concurrence that Justice Scalia's argument was "anachronistic" as Ginzburg predated the Court's commercial speech jurisprudence. Id. at 1894 (Stevens, J., concurring). Justice Thomas also filed a separate concurrence noting that, although he thought that some of the programming covered by section 505 could be prohibited entirely as obscene materials, this case had been litigated on the assumption by all parties that the materials were not obscene, but merely indecent. Id. at 1895 (Thomas, J., concurring).
49. Playboy, 120 S. Ct. at 1885.
50. 47 U.S.C. § 561(a).
51. Playboy, 120 S. Ct. at 1885.
52. Id. at 1885.
53. City of Erie v. Pap's A.M., TDBA "Kandyland," 120 S. Ct. 1381, 1391-92 (2000).
54. United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1885 (2000).
55. City of Erie, 120 S. Ct. at 1391-92.
56. 485 U.S. 312 (1988).
57. Playboy, 120 S. Ct. at 1885 (quoting Boos, 485 U.S. at 321) (opinion of O'Connor, J.) (emphasis in original).
58. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-48 (1986).
59. City of Erie, 120 S. Ct. at 1406, 1408 & n.3 (Stevens, J., dissenting).
60. United States v. O'Brien, 391 U.S. 367, 376 (1968).
61. Reno v. ACLU, 521 U.S. 844, 867-68 (1997).
62. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430 (1993).
63. R.A.V. v. City of St. Paul, 505 U.S. 377, 394 (1992).
64. See Boos v. Barry, 485 U.S. 312, 334-35 (1988) (Brennan, J., concurring).
65. 468 U.S. 288 (1984).
66. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ( Turner I); Turner Broadcasting System, Inc. v. FCC , 520 U.S. 180 (1997) ( Turner II).
67. United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1882 (2000).
68. City of Erie v. Pap's A.M., TDBA "Kandyland," 120 S. Ct. 1381, 1396 (2000).
69. City of Erie, 120 S. Ct. at 1395.
70. 427 U.S. 50 (1976).
71. 507 U.S. 761 (1993).
72. Greater New Orleans Broadcasting Ass'n, Inc. v. United States, 527 U.S. 173 (1999).
73. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).
74. City of Erie, 120 S. Ct. at 1396.
75. Playboy, 120 S. Ct. at 1889.
76. See, e.g., Greater New Orleans Broadcasting, 527 U.S. at 173; Rubin v. Coors Brewing Co ., 514 U.S. 476 (1995).
77. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989).
78. See, e.g., O'Brien, 391 U.S. at 367.
79. See, e.g., Turner I, 512 U.S. at 622; Turner II, 520 U.S. at 180.
Donald B. Verrilli, Jr. ( email@example.com) and Deanne E. Maynard ( firstname.lastname@example.org) are partners in the Washington, D.C., office of Jenner & Block. The views expressed in this article are those of the authors and do not necessarily represent the views of their firm or its clients.