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UC Law Constitutional Quarterly

Abstract

Cities are sometimes caught in a pincer movement between the First Amendment's twin requirements: if they restrict too much speech in public places, they may violate its requirement that some minimum distribution of speech be secured, but if they try to expand opportunities for speech by exempting particular speech or speakers from general laws, they may run afoul of the ban on content discrimination. The most prudent approach to speech regulation, therefore, would appear to be flat but narrow prohibitions. For example, sales of message-bearing merchandise are better regulated by a flat peddling ban in specified areas than by one that permits but regulates sales by "nonprofit" or "political or ideological" speakers. Similarly, abortion clinic access is better protected by fixed buffer zones than by delegating to persons entering or exiting the clinics the roving power to order protesters to cease and desist. While it might seem ironic that cities may fare better against First Amendment challenge by banning more speech rather than less, there is good reason to think that content-based exceptions to content-neutral laws are a cure worse than the disease.

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