Today’s Mahoney v. Doe (D.C. Cir.) upholds a content-neutral ban on defacing government property that has been read to ban chalking of sidewalks. The government has a substantial interest in preventing “visual blight,” including “temporary blight” that can be easily washed away, so long as it uses content-neutral means and leaves open “ample alternative channels” — and here, the court held, there were such ample alternative channels: “Mahoney was free to announce any ‘verbal’ message he chose,” and “could depict visual messages on signs, banners, and leaflets.”
This, by the way, is an illustration of the broader point that strict scrutiny is not always the test for restrictions on constitutional rights. When it comes to content-based restrictions on speech (at least when the government is acting as sovereign or as owner of a traditional public forum, as opposed to as employer, K-12 educator, and the like, and when the speech restriction doesn’t fit within one of the First Amendment exceptions), the ostensible test is strict scrutiny, though I have argued that the actual test the Court uses is (almost always) closer to per se invalidation. When it comes to content-neutral restrictions that impose a grave burden on speech, because they don’t leave open ample alternative channels, the test is likewise strict scrutiny or something along those lines.
But when it comes to content-neutral restrictions that impose only a modest burden on speech — because they leave open ample alternative channels to express the same words and ideas — the test is a weak form of “intermediate scrutiny,” which is generally quite deferential to the government. And for restrictions that impose only a modest burden on other constitutional rights (setting aside equality rights, such as the right to be free from race discrimination, religious discrimination, or discrimination based on the content of speech), the test is often even more deferential; see pp. 1454-55 of this article for the details. You can argue whether it’s right or wrong, but that is how American constitutional law does indeed generally operate.
Thanks to How Appealing for the pointer.