Content Based and Content Neutral Regulation of Speech
In Sebago, Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372 [259 Cal. Rptr. 918] we considered whether an ordinance that restricted the sites of vending machines selling adult newspapers and periodicals was content-based or content-neutral.
We did so by examining its stated aims of restricting the access of minors to adult newspapers and prevention of urban blight. (Id. at pp 1383-1384.)
We concluded the restriction-to-minors aim was content-based because it concerned direct listener reaction to speech. (Id. at p. 1384.)
Given the absence of demonstrable data that the vending machines downgraded neighborhoods, we concluded the urban blight aim did not make the ordinance content-neutral because, "unlike in Renton, Alameda's concern as to purported secondary effects of [the vending machines] was truly 'conclusory and speculative." (Id. at p. 1385, quoting Renton, supra, 475 U.S. at p. 50 [106 S. Ct. at p. 930].)
United States v. Playboy Entertainment Group, Inc. (2000) 529 U.S. 803 [120 S. Ct. 1878, 146 L. Ed. 2d 865] (Playboy) applied the same analytical standard in deciding whether section 505 of the Communications Decency Act of 1996 (47 U.S.C. 561) (CDA), requiring cable operators to scramble or block sexually oriented programming, is content-based or content-neutral.
The court reasoned that "the overriding justification for the regulation is concern for the effect of the subject matter on young viewers.
Section 505 is not ' "justified without reference to the content of the regulated speech."It 'focuses only on the content of the speech and the direct impact that speech has on its listeners." (529 U.S. at p. 811 [120 S. Ct. at p. 1885].)