The Pornographic Secondary Effects Doctrine
John Fee, The Pornographic Secondary Effects Doctrine. 60 Ala. L. Rev. 291 (2009). Available at SSRN: http://ssrn.com/abstract=1152424
The secondary effects doctrine has made a muddle of First Amendment law. The doctrine formally holds that a speech regulation will be treated as content-neutral if its purpose is to control the secondary effects of speech, even if it facially discriminates according to speech content. It pretends to be a general First Amendment doctrine, but in practice it is all about regulating pornographic expression. This article aims to re-evaluate the secondary effects doctrine in a way that is more transparent. Appreciating the functional basis of the secondary effects doctrine is useful for understanding the doctrine’s limitations, as well as for analyzing new types of regulation that may arguably fall within its scope. It also provides important lessons for general First Amendment theory, including how cost-benefit analysis affects the constitutional rules regarding content discrimination, and how the purpose of a regulation affects the level of scrutiny that courts apply.