Incidental restrictions

Some laws are not designed to limit freedom of expression, but nevertheless can have that effect. For example, when a National Park Service regulation prohibiting camping in certain parks was applied to prohibit demonstrators, who were attempting to call attention to the plight of the homeless, from sleeping in certain Washington, D.C. parks, it had the effect of limiting the demonstrators’ freedom of expression. Nevertheless, the Court found that application of the regulation did not violate the First Amendment because the regulation was content-neutral and was narrowly focused on a substantial governmental interest in maintaining parks “in an attractive and intact condition.”127

The Supreme Court has said that an incidental restriction on speech is constitutional if it is not “greater than necessary to further a substantial governmental interest.”128 However, the Court has made clear that an incidental restriction, unlike a content-based restriction, “need not be the least restrictive or least intrusive means” of furthering a governmental interest. Rather, the restriction must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the. . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.’”129

The Court has noted that the standard for determining the constitutionality of an incidental restriction “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.”130 Thus, the restriction on camping may be viewed as a restriction on conduct that only incidentally affects speech, or, if one views sleeping in connection with a demonstration as expressive conduct, then the restriction may be viewed as a time, place, and manner restriction on expressive conduct. In either case, as long as the restriction is content- neutral, the same standard for assessing its constitutionality will apply.

In 1991, the Supreme Court held that the First Amendment does not prevent the government from requiring that dancers wear “pasties” and a “G-string” when they dance (non-obscenely) in “adult” entertainment establishments. Indiana sought to enforce a state statute prohibiting public nudity against two such establishments, which asserted First Amendment protection. The Court found that the statute proscribed public nudity across the board, not nude dancing as such, and therefore imposed only an incidental restriction on expression.131 In 2000, the Supreme Court again upheld the application of a statute prohibiting public nudity to an “adult” entertainment establishment. It found that the statute was intended “to combat harmful secondary effects,” such as “prostitution and other criminal activity.”132

In a 1994 case, the Supreme Court apparently put more teeth into the test for incidental restrictions by remanding the case for further proceedings rather than deferring to Congress’s judgment as to the necessity for the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of 1992.133 To justify an incidental restriction of speech, the Court wrote, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”134 The Court added that its


 * obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress’ factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.135