A city ordinance prohibits picketing in residential neighborhoods unless the picketing relates to neighborhood zoning. A group wishes to picket in front of a business owner’s home about the owner’s employment practices and challenges the ordinance as unconstitutional. Will the group prevail?

• A. No, because the ordinance is content-neutral regulation of speech.
• B. No, because the ordinance regulates conduct rather than speech.
• C. Yes, because the ordinance irrationally discriminates between different types of protesters.
• D. Yes, because the ordinance is a content-based regulation of speech.

Answer: (D)

The main idea here is that restrictions on speech that depend on the message being communicated are treated as especially strong limitations. This ordinance draws a line based on what the speaker is saying: picketing about zoning is allowed, but any other topic, such as employment practices, is banned in residential areas. That makes it a content-based regulation of speech.

Under First Amendment doctrine, content-based restrictions face strict scrutiny. The government must show a compelling interest and that the regulation is narrowly tailored to achieve that interest. A blanket ban on non-zoning picketing in front of homes, with an exception only for zoning-related messages, targets the content of the speech and is unlikely to satisfy strict scrutiny. The regulation suppresses a substantial amount of political and social expression in a way that isn’t necessary to protect residents’ interests, and a time/place/manner approach that regulates how the speech is communicated would be a far more appropriate, content-neutral method if the aim is to protect residential peace.

So the group would prevail because the ordinance is a content-based restriction on speech, which is unconstitutional absent the kind of narrowly tailored, compelling-interest justification that most such ordinances lack.