448
Kennedy, J., concurring in judgment
II
In Renton, the Court began by noting that a zoning ordinance is a time, place, or manner restriction. The Court then proceeded to consider the question whether the ordinance was "content based." The ordinance "by its terms [was] designed to prevent crime, protect the city's retail trade, maintain property values, and generally protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life, not to suppress the expression of unpopular views." 475 U. S., at 48 (internal quotation marks omitted). On this premise, the Court designated the restriction "content neutral." Ibid.
The Court appeared to recognize, however, that the designation was something of a fiction, which, perhaps, is why it kept the phrase in quotes. After all, whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based. And the ordinance in Renton "treat[ed] theaters that specialize in adult films differently from other kinds of theaters." Id., at 47. The fiction that this sort of ordinance is content neutral—or "content neutral"—is perhaps more confusing than helpful, as Justice Souter demonstrates, see post, at 457 (dissenting opinion). It is also not a fiction that has commanded our consistent adherence. See Thomas v. Chicago Park Dist., 534 U. S. 316, 322, and n. 2 (2002) (suggesting that a licensing scheme targeting only those businesses purveying sexually explicit speech is not content neutral). These ordinances are content based, and we should call them so.
Nevertheless, for the reasons discussed above, the central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny. Generally, the government has no power to restrict speech based on content, but there are exceptions to the rule. See Simon & Schuster, Inc. v. Members of N. Y. State Crime
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007