Zoning Away First Amendment Rights

Abstract

To facilitate the tapering of local government regulation, this Article proposes that, as a matter of constitutional policy, the courts' should analyze zoning as a prior restraint when the challenged regulation has the potential to impact First Amendment rights. Zoning actions invalidated by the Court as prior restraints can then be adjudicated as common law nuisance actions that address those actual harms caused by the alleged offending land use activities. Admittedly, this proposal turns current constitutional jurisprudence "on its head." However, if courts can use "secondary effects" to give less protection to "lower-level" forms of expression, such as adult uses and commercial visual blight, then why shouldn't courts use the doctrine of prior restraint to give an extra level of protection to "higher-level" First Amendment rights, such as religious exercise?

Keywords

Zoning, Prior restraint, Freedom of association, Freedom of religion

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Authors

Shelley Ross Saxer (Pepperdine University School of Law)

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