Neutral No More: Secondary Effects Analysis and the Quiet Demise of the Content-Neutrality Test

Abstract

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex. Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader and more insidious than generally understood. It is true that courts usually avoid expressly invoking the doctrine in non-sexual cases, instead applying the standard content-neutrality analysis. But that “standard” neutrality analysis has actually been quietly warped over the past three decades by the influence of the secondary effects doctrine. These doctrinal distortions have occurred without anything like the outcry generated by the prospect of express use of the doctrine in political speech cases. The results of this doctrinal shift are striking, with some courts treating as “neutral” laws that deliberately discriminate among speakers and messages on public sidewalks, in parade permitting, and even in what political messages can be worn on t-shirts. This Article (1) describes the manner in which the standard neutrality analysis has been warped by the secondary effects doctrine, (2) demonstrates the dangerous First Amendment effects of those changes by examining several recent cases in which courts have allowed content-based or even viewpoint-based speech restrictions to stand, and (3) explains how the Supreme Court and lower courts can and should correct this serious First Amendment problem.