NEW TOPIC:
CONTENT-BASED RESTRICTIONS OF HIGH
VALUE SPEECH

Have been discussing low value categories of speech – all of
which involve laws that impose content-based restrictions
(i.e., regulate speech based on what the speaker is saying).


SCT has few problems with these restrictions if speech is truly
low value (BIG issue in some cases – e.g., Stevens, Cohen, etc. was
whether laws punishing speech met the reqm’ts established for
each category of low value speech)
But Brown SCT goes beyond asking about whether speech is
low value and judges speech based on whether it can survive
strict scrutiny.

Reflects SCT’s two-tiered approach to speech
CONTENT-BASED RESTRICTIONS: SCT’S
TWO-TIERED
APPROACH

Stevens indicated that the
methodology SCT used was “history” & “tradition”
Low



Value
Speech:
only
Threats, Fighting Words, Incitement, Libel, Obscenity, Child
Pornography, Fraud (Comm’l Speech), Speech Integral to Criminal
Conduct
High Value Speech:
Speech that is not low value speech – i.e., somehow
contributes to public discourse

Content-based restrictions are subject to strict scrutiny (law
must be necessary to meet a compelling state interest)

Content-neutral restrictions subject to intermediate scrutiny
(law must be narrowly drawn to meet important state interest
and leave open ample alternatives of communication)
BROWN V. EMA – THE STATUTE

Cal. Civ. Code § 1746.1(a): A person may not sell or rent a
video game that has been labeled as a violent video game
to a minor.

Cal. Civ. Code § 1746.1(d)(1)(A): “Violent video game”
means a video game [where the options] available to a
player includes killing, maiming, dismembering, or
sexually assaulting an image of a human being, if those
acts are depicted in the game in a manner that . . .
Comes within all of the following descriptions: (i) A
reasonable person, considering the game as a whole,
would find appeals to a deviant or morbid interest of
minors. (ii) It is patently offensive to prevailing
standards in the community as to what is suitable for
minors. (iii) It causes the game, as a whole, to lack
serious literary, artistic, political, or scientific value for
minors.
BROWN V. EMA – THE LOW VALUE SPEECH ISSUE

Note how majority first looks to see if statute regulates
low value speech:

Does it regulate speech within an existing category?

Note Court reiterates Stevens – absent some sort of “long (if
heretofore
unrecognized)
tradition
of
proscription,”
legislature cannot regulate as “low value” [p. 101].

Is there a different “tradition” that supports creation of a low
value category?


What about Justice Thomas’s dissent arguing that parents
have had control over who spoke to their children?
If there is a tradition of protecting children from certain kinds
of speech (like sexual speech), why can’t we protect them from
violence?
BROWN V. EMA – THE HIGH VALUE SPEECH ISSUE

Application of strict scrutiny

Is there a compelling state interest supporting the statute?




What kind of evidence does the state need?
Who has the better read on the state’s evidence – majority
or Justice Breyer?
Does the disagreement itself suggest something about how
the issue should be resolved?
Is the law necessary to meet that state interest? Why not?

Should the court consider the argument that this is a TP&M
regulation affecting only minors’ ability to buy certain
content without parental permission?
WHY
DOES
SCT
VIEW
CONTENT-BASED
RESTRICTIONS OF HIGH VALUE SPEECH WITH SUCH
DISFAVOR?

o
Reasons?
Are subject-matter restrictions as threatening to free
speech as viewpoint-based restrictions?
o
E.g. – law banning all discussion of abortion (vs. law
banning only pro-choice speech)?
What about the content-based TP&M restriction in Brown –
is it as concerning? Should it be?