Laws of General Applicability, Content-Based as Applied and Content-Neutral as Applied:

Consider a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. Sometimes, as in United States v. O’Brien, the law may be triggered by the “noncommunicative impact of [the speech], and [by] nothing else.” A law barring noise louder than ninety decibels, for instance, might apply to the use of bullhorns in a demonstration. We might call such a generally applicable law “content-neutral as applied,” because it applies to speech without regard to its content.

But sometimes the law is triggered by what the speech communicates. The law may, for instance, prohibit any conduct that is likely to have a certain effect, and the effect may sometimes be caused by the content of speech. A person may violate a law prohibiting aiding and abetting crime, for example, by publishing a book that describes how a crime can be easily committed.

We might call such a law “content-based as applied,” because the content of the speech triggers its application. The law doesn’t merely have the effect of restricting some speech more than other speech -- most content-neutral laws do that. Rather, the law applies to speech precisely because of the harms that supposedly flow from the content of the speech: Publishing and distributing the book violates the aiding and abetting law because of what the book says.

In this post and coming posts, I’ll argue that laws that are content-based as applied should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Both presumptions may sometimes be rebutted, for instance if the speech falls within an exception to protection or if the speech restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.

This analysis also cuts against some commentators’ arguments that First Amendment doctrine should focus primarily on smoking out the legislature’s impermissible speech-restrictive motivations. (See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996); Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767 (2001).) When a law generally applies to a wide range of conduct, and sweeps in speech together with such conduct, there is little reason to think that lawmakers had any motivation with regard to speech, much less an impermissible one. Nonetheless, such a law should still be unconstitutional when applied to speech based on its content—even though the legislature’s motivations may have been quite benign.

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The Court has confronted many cases where a law was content-based as applied. In all those cases, either the Court held that the speech was constitutionally protected, or -- if it held otherwise -- the decision is now viewed as obsolete.

Consider, for instance, the World War I-era cases Debs v. United States, Frohwerk v. United States, and Schenck v. United States. These cases, which upheld the criminal punishment of antiwar speech, are now generally seen as wrongly decided. But the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct -- speech or not -- that “willfully obstruct[ed] the recruiting or enlistment service of the United States, to the injury of the service or the United States.”