60 Ala. L. Rev. 291 (2008-2009)
The Pornographic Secondary Effects Doctrine

handle is hein.journals/bamalr60 and id is 295 raw text is: 






    THE PORNOGRAPHIC SECONDARY EFFECTS DOCTRINE


                               John Fee*

                               ABSTRACT

    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. Appre-
ciating 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 dis-
crimination and how the purpose of a regulation affects the level of scruti-
ny that courts apply.


INTRODUCTION    ................................................................... 292
I. A PRODUCT OF EXPANDING SPEECH PROTECTION ....................... 295
    A. The Narrowing of Obscenity Law ..................................... 295
    B. A New Emphasis on Content Neutrality .............................. 297
    C. The Secondary Effects Doctrine of Young v. American Mini
        T heatres .................................................................. 299
    D. The Split Remains: Renton and Alameda Books .................... 303
II. THE DESCRIPTIVE PROBLEM ................................................ 306
    A. Remote Causation ....................................................... 306
    B. Mere Correlation ......................................................... 308
    C. Non-Communicative Causation ........................................ 310
    D. Causation Independent of Viewpoint ................................. 313

    * Professor of Law, Brigham Young University Law School. My thanks to Elizabeth Fee,
Cheryl Preston, Fred Gedicks, Margaret Tarkington, Jim Gordon, John Borrows, Jim Rasband, Gor-
don Smith, and David Thomas for comments on earlier drafts. I would also like to thank Jessame
Petersen and Kyle Witherspoon for valuable research assistance.

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