Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 7 of 21
For the reasons set out more fully below, the Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the merits of their First Amendment claims, but not on their preemption claim.
- A. Plaintiffs’ As-Applied First Amendment Challenge
- i. The Legal Framework for the First Amendment
- A. Plaintiffs’ As-Applied First Amendment Challenge
“The First Amendment generally prevents government from proscribing speech…or even expressive conduct…because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (internal citations and quotations omitted). “The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). Thus, as is relevant to the current facts, “[a]s a Nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” Id. at 461. This protection extends to speech which the government may seek to limit because it is offensive or insulting. See R.A.V, 505 U.S. at 391 (“The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.”) Even regulations that seek to regulate speech “that insult[s], or provoke[s] violence, on the basis of race, color, creed, religion, or gender” have been found to run afoul of the First Amendment because they constitute content and viewpoint-based regulation of protected speech. Id. at 391–92.
In evaluating whether a regulation violates the First Amendment, courts “distinguish between content-based and content-neutral regulations of speech.” Id. “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).
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