Non-content-based restrictions

If the government limits speech, but its purpose in doing so is not based on the content of the speech, then the limitation on speech may still violate the First Amendment, but it is less likely than a content-based restriction to do so. This is because the Supreme Court applies less than “strict scrutiny” to non-content-based restrictions. The Court requires that the governmental interest be “significant,” or “substantial,” or “important,” but not necessarily, as with content-based restrictions, “compelling.” And the Court requires that the restriction be narrowly tailored, but not, as with content-based restrictions, that it be the least restrictive means to advance the governmental interest.

Two types of speech restrictions that receive this intermediate scrutiny are (1) time, place, or manner restrictions, and (2) incidental restrictions, which are restrictions aimed at conduct other than speech, but that incidentally restrict speech. This report includes separate sections on these two types of restrictions. In addition, restrictions on commercial speech, though content-based, are subject to similar intermediate scrutiny; this report also includes a separate section on commercial speech. Finally, bans on nude dancing and zoning restrictions on pornographic theaters and bookstores, although discriminating on the basis of the content of speech, receive intermediate scrutiny because, according to the Supreme Court, they are aimed at combating “secondary effects,” such as crime, and not at the content of speech.