The plaintiff disputes this characterization of the law, arguing that the nature of the matter regulated, (
e.g., whether “conduct” or “pure speech”), as opposed to the rationale for the regulation, actually dictates the level of scrutiny to be applied. The plaintiff submits that the
O'Brien criteria are inapplicable because they apply only to the regulation of “conduct”, and that the Karn diskette is “pure speech”, the regulation of which should require strict scrutiny review. The Court disagrees, as the plaintiff's argument places form over substance. Pursuant to extensive First Amendment jurisprudence, the government's rationale for the regulation controls, regardless of the form of the speech or expression regulated.
See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989) (“Time, place, and manner” restriction on music permitted where, among other things, regulation was content-neutral);
Clark v. Community of Creative Non–Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 3071, 82 L.Ed.2d 221 (1984) (Standard for evaluating expressive conduct, including requirement that regulation be content-neutral, “is little, if any, different from standard applied to time, place, or manner restrictions”);
O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679 (Government prohibition against burning of draft cards sufficiently justified if, among other things, “the governmental interest is unrelated to the suppression of free expression”). Accordingly, it is unnecessary for the Court to make any finding regarding the nature of the matter contained on the Karn diskette.