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After Tam was decided without expressly finding Section 2(a) unconstitutional in its entirety, the Federal Circuit requested additional briefing on the impact of Tam to Brunetti. The government argued that Tam did not resolve the constitutionality of the immoral and scandalous provisions “because the disparagement provision implicates viewpoint discrimination, whereas the immoral or scandalous provision is viewpoint neutral.” While expressing its doubts, the Federal Circuit did not find it necessary to resolve that issue because regardless of whether the immoral and scandalous provisions discriminate based on viewpoint (which requires strict scrutiny), they clearly discriminate based on content (which requires intermediate scrutiny) and the provisions could not survive either level of review.

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