What Did an Ex-Girlfriend, a School District Resident, and a Company Share in Common? A Round-Up of First Amendment Cases Distinguishing “Content-Based” from “Content-Neutral” Speech Restrictions

Constitution & GavelIt’s not every day that a boyfriend-girlfriend spat results in a First Amendment challenge.

The Fourth District Court of Appeals in Florida recently reviewed an appeal from an ex-girlfriend who was prevented from telling all by her ex-boyfriend’s temporary restraining order (TRO). Vrasic v. Leibel (2013 WL 85412). After they broke up, the ex-girlfriend created a website to pre-sell a book about their relationship. She also posted an excerpt containing defamatory statements about him. A lower court granted the ex-boyfriend’s demand for a TRO. The Court of Appeals reversed to the extent that the TRO prevented even defamatory speech on the theories that it was a content-based prior restraint on speech and that the proper remedy is an action for damages.

When analyzing First Amendment free speech challenges, courts first decide if the speech restriction is “content-neutral” or “content-based.” This threshold distinction drives whether a government restriction of speech deserves more exacting scrutiny by courts. The government is unlikely to prevail where the restriction is content-based. But content-neutral restrictions are less problematic and are often permissible.

Deciding if a restriction is content-based or content-neutral is a tricky matter. A content-based restriction will usually target speech directly, while a content-neutral one will affect speech only incidentally. Because the assessment is fact-specific, a review of recent cases making this determination may be the best way to shine a light on the distinction.

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Time to Finally Pass the Equal Rights Amendment?

Equal-Rights-Amendment-imageIn 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted).

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women.

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id.

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Ban on Women in Combat: A Response

I recently had the opportunity to read Professor Mazzie’s post on the lifting of the ban on women serving in combat.  As a military officer with over 20 years of service to include a recent overseas deployment to a combat zone, I thought that I would offer my personal observations and opinions related to this matter.

First, while I personally have not served on the “front lines,” I generally agree with the lifting of the ban.  Since September 11, 2001, women have served alongside men in Iraq, Afghanistan, and many other places around the world.  The majority of women have served with great distinction and all of them who have served have made great sacrifices (let us also not forget about the sacrifices that their families have made).  As Professor Mazzie notes, since September 11, 2001, 152 women have made the ultimate sacrifice for the greater good of this country. 

As a person who enlisted as a Private in 1992, I have seen how the military has grown, matured, and become more professional over the years, especially since the rapid deployment of service members over the last 11 years.  Professor Mazzie entitles her post “Ban on Women in Combat Lifted: Is the Military Ready?”  For the reasons cited above, I do believe that the military is ready.  If the military is not ready at this point in time, after 11 plus years of overseas operations in which women have played a key role in the success of these operations, I personally do not believe that the military will ever be ready.  To put it simply, I believe that the timing is right and the lifting of the ban is the right thing to do. 

All that being said, I do believe that some of the arguments made by opponents of the lifting of the ban have some validity. 

Continue ReadingBan on Women in Combat: A Response