Content-Based Application of Content-Neutral Speech Restrictions

by Michael Dorf

In my latest Verdict column, I discuss a recent ruling by a federal district court striking down an Idaho "Ag-Gag" law--i.e., a law forbidding, among other things, gaining access to an agricultural facility under false pretenses as well as recording what happens there without government authorization or permission of the facility's owner. As I explain in the column, although the immediate context of the case is a victory for animal welfare* investigators, it has potentially far-reaching consequences for investigative journalists and activists much more broadly. In this post, I'll address an ambiguity in free speech doctrine concerning the implications of the ruling.

As I note in the column, the main thrust of the opinion is that Idaho's law is content-based and therefore must be subject to strict scrutiny, which it fails: Idaho lacks a compelling reason for singling out investigators of farms for restrictions on speech. But in this as in other contexts, there is a seeming paradox: If the problem with the Idaho law is that it singles out some speech but not other speech for censorship, does that imply that an Idaho law that censored more speech would be permissible?

Perhaps that seeming paradox is the implication of some free speech doctrine. For example, a law banning anti-government demonstrations in a municipal park would be an invalid restriction on speech in a public forum, but the government could simply sell the property on which the park sits to a private developer, whereupon the private owners could exclude all demonstrators without running afoul of the First Amendment, which does not limit private actors.

Even absent the extreme example of privatization, does the substitution of a broad content-neutral restriction of speech for a narrow content-based restriction make it more likely that the courts will uphold the restriction? Suppose Idaho were to rewrite its Ag-Gag law as a general purpose gag law that forbids people from gaining access to all private property in Idaho under false pretenses and forbids recording all activity without either government authorization or consent of the people being recorded. Would that be permissible as content-neutral?

As a formal matter, even content-neutral restrictions on speech are subject to heightened scrutiny, albeit not strict scrutiny. The test is given by the time, place, and manner cases in language that closely tracks the SCOTUS cases describing intermediate scrutiny in equal protection. Content-neutral restrictions on speech must serve "important" government interests (which is a less demanding test than the "compelling" interests required under strict scrutiny) and must leave open ample alternative channels of communication (as opposed to being the least restrictive means, the more demanding test under strict scrutiny). Because of the mushiness of the intermediate scrutiny formula, a law deemed content-neutral is more likely to be upheld than one deemed content-based.

Nonetheless, I say in the column that the Idaho case has implications for undercover journalists and activists threatened with prosecution even under general statutes. I give the example of a potential prosecution of the pro-life activists who surreptitiously recorded Planned Parenthood officials in apparent violation of a general California law forbidding unconsented recording of conversations. But wouldn't that be prosecution under a content-neutral law? Isn't there an "important" government interest in protecting privacy in conversations? And doesn't the California law leave open ample opportunities for people to make their points, so long as they don't surreptitiously record others?

I think these are hard questions, which is why my column hedges about the implications of the Idaho case for content-neutral laws. But it also can be argued that the application of a general law like California's restriction on unconsented recording could be deemed content-based even though the law on its face is content-neutral.

Consider the 2010 SCOTUS decision in Holder v. Humanitarian Law Project (HLP). Because that ruling ultimately upheld the application of a federal law forbidding material support for terrorism to organizations that sought to provide groups deemed terrorists with training in how to advance their causes peacefully, it has generally been criticized by civil libertarians as insufficiently protective of speech. Yet en route to that conclusion, the majority opinion of CJ Roberts included a move that has potentially far-reaching speech-protective implications in distinguishing between content-based and content-neutral laws. Here I'll quote the key language:
The Government argues that [the material aid statute should] receive intermediate scrutiny because it generally functions as a regulation of conduct. That argument runs headlong into a number of our precedents, most prominently Cohen v. California (1971). Cohen also involved a generally applicable regulation of conduct, barring breaches of the peace. But when Cohen was convicted for wearing a jacket bearing [the words "fuck the draft"], we did not apply [the intermediate scrutiny test of] United States v. O'Brien (1968). Instead, we recognized that the generally applicable law was directed at Cohen because of what his speech communicated—he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied more rigorous scrutiny and reversed his conviction.
Notably, no one on the Supreme Court dissented from this view in Holder v. HLP. The dissenters also thought the law content-based as applied, but they thought that it failed strict scrutiny. So the Justices unanimously adopted this as-applied approach to defining content-based regulations. And yet, as I explained when the case was decided in 2010, their analysis cannot be taken seriously, absent further clarification. Here's the example I gave at the time:
Suppose a statute that makes someone guilty of murder if he "intentionally causes the death of another human being without justification or excuse." Now suppose that a mob boss is accused of murdering a rival by instructing one of his henchman as follows: "Make sure that Don Tattaglia sleeps with the fishes."  Following the communication of this message from boss to henchman, henchman kills Tattaglia and dumps his body in the river. We could say, using the HLP formulation that the murder law may be described as directed at the conduct of murder, but as applied to the mob boss, the conduct triggering coverage under the statute consists of communicating a message.  It seems plainly crazy to subject the murder law to strict scrutiny; yet that seems to follow from the opinion of CJ Roberts in HLP.
In my 2010 blog post on Holder v. HLP, I offered a couple of ways around this implication, neither of which I found fully satisfying, and so what the courts will do with it remains to be seen. If I were writing on a clean slate, I'd reject the approach of Holder v. HLP, at least absent some evidence that the government was targeting material support accomplished by speech because of hostility to the message. In other words, I would certainly leave open the possibility of an as-applied challenge where the enforcement of a content-neutral law was plainly content-based. That seems to me a sufficient explanation of the result in Cohen: We have very good reason to think that the California officials who prosecuted Cohen were not concerned about violence breaking out but were offended by his message. A case like Holder v. HLP would properly fall on the content-neutral side, but as the dissenters explain there, the application of the material support to the plaintiffs should have failed even intermediate scrutiny.

Finally, in the hypothetical case in which California--in response to political pressure from pro-choice members of Congress--prosecutes the pro-life activists who surreptitiously recorded Planned Parenthood officials, it strikes me that there would be a strong prima facie indication that the application of the no-recording-without-consent law would be content-based.

*Postscript: I refer in the column and this post to the investigators for Mercy for Animals (MFA) as promoting "animal welfare" rather than as working for an "animal rights" organization because many of MFA's activities--including its undercover investigations of farms--aim to expose sadistic cruelty on farms. They target particular farming practices in order to "reduc[e] the suffering of animals" on these farms. The notion that animals can be used and killed for human pleasures so long as the use and killing are accomplished by relatively less cruel methods seems to me inconsistent with a conception of animals as rights-bearers. To be sure, MFA also urges people to reduce or eliminate their consumption of animal products, and elimination is consistent with animal rights. Further, in recent years, some proponents of animal welfare measures have suggested that campaigns to end the cruelest animal farming practices raise awareness about animal exploitation more generally, thus cutting a gradual path towards animal rights. That claim is hotly contested--as in this debate between Rutgers Law Professor Gary Francione and attorney Bruce Friedrich at the 2013 Animal Rights Conference--and Professor Colb and I have a chapter that discusses the controversy in our forthcoming book, Beating Hearts: Abortion and Animal Rights. Without getting too deep into the substance of our analysis, I'll just say here that I refer to MFA as an animal welfare organization because, bracketing the uncertain long-term effects of its animal-welfare activities, exposing particular farming practices as sadistic is most straightforwardly described as promoting animal welfare.