Why the Lo Test Will Prevail

Here I expressed confidence that the Texas Court of Criminal Appeals will eventually straighten out the law on what makes a regulation content based, putting various speech-restricting statutes that intermediate Texas Courts have found not to be content-based regulations back on the table.

Why the confidence? Because I’m right.

Okay: Also because while the Court of Criminal Appeals can dodge the issue procedurally for a while, they cannot close every procedural door. Eventually they will have to correct an intermediate court that has called a content-based regulation content-neutral. Either that, or the Supreme Court will grant cert when Texas courts uphold some unusually preposterous content-based restriction (like a statute forbidding someone’s name without his consent online with intent to harm) as not content based.

The Texas Court of Criminal Appeals adopted a test in Ex parte Lo and Ex parte Thompson: “If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content based.” They could renounce that test, but they won’t, for three reasons.

First, it was right when they said it, and nothing has changed.

Second, the United States Supreme Court has, in Cincinnati v. Discovery Network, Inc., described a test like the Lo test as “common sense”:

Under the city’s newsrack policy, whether any particular newsrack falls within the ban is determined by the content of the publication resting inside that newsrack. Thus, by any commonsense understanding of the term, the ban in this case is “content based.”

And third, all regulations of speech are either content neutral or content based. There is no third option. And the Supreme Court in Ward v. Rock Against Racism said that content-neutral regulations must, among other things, be “justified without reference to the content of the regulated speech.” If a speech restriction is justified with reference to the content of the regulated speech, it is not content neutral and is, by simple process of elimination, content based.

The Court of Criminal Appeals will affirm that it meant what it said in Lo and Thompson. Once that dam cracks, the speech-restricting statutes I’ve killed so far are going to be a drop in a large bucket.

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