Even if IPACT did not regulate commercial speech, IPACT is subject to lower scrutiny
because it does not regulate the content of speech. Instead, as outlined above, this law would
establish a procedure that provides a reasonable regulation of the time, place, and manner of the
ads posted. Under IPACT procedures, where E-Verify or an alternative system is utilized to
ensure the age and identity of participants, the speech itself is not regulated or restricted; the
content of the ad may remain the same as it was previously. The regulation merely ensures that
the participants are complying with existing law regarding the required age for participation: one
must be eighteen years of age or older.
The Supreme Court has determined that laws regulating the time, place and manner of
speech are not subject to strict scrutiny.240 For example, in City of Renton v. Playtime Theatres,
Inc., the Court held that a city ordinance regulating the location of an adult motion picture theater
is valid as long as the regulation is designed to serve a substantial government interest and allows
for reasonable alternative avenues of communication.241 The Court concluded,
[t]he Renton ordinance, like the one in American Mini Theatres, does not ban
adult theaters altogether, but merely provides that such theaters may not be
located within 1000 feet of any residential zone, single- or multiple-family
dwelling, church, park, or school. The ordinance is therefore properly analyzed
as a form of time, place, and manner regulation.242
Similarly, the IPACT proposal will not ban adult services ads on the Internet altogether,
but merely provide a mechanism to ensure that those using such services are of legal age.
Further, the Court in Renton determined that the city ordinance in question was not regulating the
speech itself, but was content-neutral:
[T]he Renton ordinance is aimed not at the content of the films shown at “adult
motion picture theatres,” but rather at the secondary effects of such theaters on
the surrounding community. The District Court found that the City Council’s
“predominate concerns” were with the secondary effects of adult theaters, and
not with the content of adult films themselves.243
Similarly, the “predominate concerns” of the IPACT regulation are to protect children
and ensure that children are not sold on the Internet through “adult services” sections or any other
site. The regulation is not concerned with the content of such ads, nor is it attempting to control
or suppress the speech within the ads. Therefore, if enacted, IPACT will merely regulate the
manner in which the ads are presented; IPACT is content neutral with respect to the speech itself.
Similarly, in Acara v. Cloud Books, Inc., a New York statute was invoked to close an
“adult” bookstore found to be a public health nuisance because individuals used it as a place for
prostitution and “lewdness.”244 The Supreme Court concluded that, “the First Amendment is not
implicated by the enforcement of a public health regulation of general application against the
physical premises in which respondents happen to sell books.”245 The Court determined that the
240 See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).
241 Id. at 50. The city ordinance prohibited an adult motion picture theater from locating within one thousand feet of any residential
zone, family dwelling, church, or park, or within one mile of a school. Id. at 44-45.
242 Id. at 46.
243 Id. at 47.
244 Arcara v. Cloud Books, Inc., 478 U.S. 697, 699 (1986). An undercover law enforcement investigation revealed that illegal sexual
activities, including solicitation of prostitution, occurred on the premises. Id. at 698-99.
245 Id. at 707.