229
“[gjovernment regulation of speech is content based if a law applies to particular
speech because of the-topic discussed or
the idea or message expressed.” 135 S.Ct.
at 2227. A law that distinguishes between
permitted and prohibited speech based on
the subject matter, function, or purpose of
the speech is content •based on its face.
Id. Additionally, even a faeially-neutral law
will be deemed to be content, based- if it
either cannot be justified without reference to the content of the speech or discriminates based on the speaker’s point of
view. Id.
A law that is content based on its
face will be subject to strict scrutiny even
though it does not favor one viewpoint
over another and regardless of whether
the legislature acted with benign motivations when it adopted the law. See id. at
2229-30. As ■the Reed court explained,
“[i]nnocent motives do not eliminate the
danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.” Id.
at 2229; see also Turner Broad. Syst., Inc.
v. FCC, 512 U.S. 622, 642-43, 114 S.Ct.
2445, 129 L.Ed.2d 497 (1994) (“Nor will the
mere assertion of a content-neutral purpose be enough to save a law which, on its
face, discriminates based on content.”).
In Reed, the Court applied these principles to invalidate a sign code that governed the manner in which people could
display outdoor signs in Gilbert, Arizona.
Reed, 135 S.Ct. at 2226. The sign code
generally prohibited the display of outdoor
signs anywhere within the town without a
permit. It exempted twenty-three categories of signs from that requirement, but
placed various lesser requirements on each
of those twenty-three categories. For example, a political sign could be larger than
a temporary directional sign and could be
displayed for a longer amount of time.
The Court held that the sign code was
content based on its face because it treated
each sign category differently dependent
upon the type of content conveyed. Id. at
2227. Because the sign code was facially
content based, the Court subjected it to
strict scrutiny without attempting to identify the legislature’s purpose or justification!' Id.
In the present case, as in Reed, the
law under review is content based on its
face because it restricts speech on the
basis of its subject matter. The only digital or photographic images that are barred
by RSA 659:35, I are images of marked
ballots that are intended to disclose how a
voter has voted. Images of unmarked ballots and facsimile ballots may be shared
with others without restriction. In fact,
the law does not restrict any person from
sharing any other kinds of images with
anyone. In short, the law is plainly a
content-based restriction on speech because it requires regulators to examine the
content of the speech to determine whether it includes impermissible subject matter. Accordingly, like the sign code at
issue in Reed, the law under review here is
subject to strict scrutiny even though it
does not discriminate based on viewpoint
and regardless of whether the legislature
acted with good intentions when it adopted
the law.
The Secretary nevertheless contends
that the new law should be exempt from
strict scrutiny even if it is a content-based
restriction on speech because it is only a
partial ban on speech about how a voter
has voted. In other words, because the
new law leaves voters free to use other
means to inform others about how they
have voted, the Secretary argues that the
law is merely a time, place, or manner
restriction on speech that is subject only to
intermediate scrutiny. This argument is a
nonstarter. As the Supreme Court explained in United States v. Playboy Enter-
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