Content-Based Regulation of Speech

One of the most important principles of First Amendment jurisprudence states that the government may not regulate speech solely on the basis of its content. Public debate would be distorted, and individual autonomy impaired, if the government were allowed to pick and choose certain ideas, viewpoints, or types of information to suppress. A law is content based if it limits or restricts speech that concerns an entire topic (‘‘subject matter discrimination’’) or that expresses a particular stance or ideology (‘‘viewpoint discrimination’’). The Supreme Court generally invalidates content-based speech regulations unless the government can meet an exacting standard of justification known as ‘‘strict scrutiny’’ analysis.

The content distinction is a relatively recent development in First Amendment law. The Court first established its importance in Police Department of Chicago v. Mosely (1972). In that case, postal worker Earl Mosely challenged a Chicago ordinance that prohibited all picketing outside schools except for ‘‘peaceful picketing of any school involved in a labor dispute.’’ Mosely had for several months picketed a high school that he believed engaged in racial discrimination. The Court struck down the ordinance because it applied selectively, depending on what message picketers carried on their signs. Writing for the Court, Justice Marshall explained that ‘‘above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its viewpoint.’’

Pursuant to strict scrutiny analysis, content regulations of speech are unconstitutional unless they are (1) justified by a Compelling State Interest; and (2) narrowly drawn to achieve that interest with the minimum abridgement of free expression. The compelling- interest prong of the test ensures that speech cannot be restricted just because the majority finds it offensive. For example, in Texas v. Johnson (1989), the Court invalidated the conviction of a protestor who burned an American flag at the Republican National Convention. Although Texas claimed that its flag desecration statute served to prevent breaches of the peace and encourage respect for the flag, the Court found these arguments unconvincing. Rather, the Court concluded that the statute’s real purpose was to eliminate political protests considered by many to be insulting and unpatriotic. In his opinion for the Court, Justice Brennan noted that ‘‘the bedrock principle underlying the First Amendment . . . is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’’

Even where a compelling justification exists, a content- based speech regulation will not meet the requirements of strict scrutiny if it is overbroad and limits too much speech. In Simon & Schuster v. Members of the New York State Crime Victims Board (1991), the Supreme Court unanimously declared New York’s ‘‘Son of Sam Law’’ unconstitutional as penalizing expression based on its content. The law provided that all profits made by criminals who wrote about their illegal activities were to be redistributed to crime victims, whereas criminals who wrote about other topics could keep their earnings. Although the Court agreed that the state had a compelling interest in preventing criminals from capitalizing on their crimes, it held that the New York statute was not sufficiently narrow in scope. Had the law been in effect at the time, the Court noted that it would have placed a financial disincentive on valuable works of literature by authors such as Malcolm X, Thoreau, Martin Luther King, Jr., and even Saint Augustine.

Although the Court generally treats content discrimination with disfavor, the justices do not always agree about what constitutes content-based regulation. In Hill v. Colorado (2000), for instance, six of the nine justices upheld a Colorado statute that made it a crime to approach within eight feet of another person outside a medical facility without consent ‘‘for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.’’ The majority concluded that the statute was neither content nor viewpoint based because it applied equally to ‘‘all ‘protest,’ to all ‘counseling,’ and to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made the abortion decision.’’ Content-neutral speech restrictions are subject to a less-demanding level of judicial scrutiny; therefore, the Court was able to uphold the statute as a valid time, place, and manner regulation. Dissenting, Justice Scalia argued that the abortion clinic no-approach buffer zone was ‘‘obviously and undeniably content-based’’ because its intent and practical effect was to limit the speech of abortion opponents.

One of the paradoxes in First Amendment jurisprudence is that despite both the obvious importance of the content distinction and the Court’s absolutistsounding rhetoric in cases such as Mosely, the Constitution does not always prohibit content-based regulations of speech. The Court has identified certain categories of expression that are unprotected (such as libel, obscenity, or fighting words) or entitled only to limited protection (such as Commercial Speech) under the First Amendment. These speech categories, which undeniably are defined by their content, are exceptions to the rule that all content-based regulations are presumptively unconstitutional. Rather, in these areas, the Court has determined that a compelling interest already exists for treating the entire category of speech as outside the boundaries of First Amendment protection.

Yet even within these unprotected categories of speech, the government does not have free rein to regulate expression based on content. In R.A.V. v City of St. Paul, the Court overturned a city ordinance that prohibited hate speech based on race, color, religion, or gender, but not political affiliation or sexual orientation. In his opinion for the Court, Justice Scalia explained that although the state could outlaw all fighting words, the city’s partial ban impermissibly discriminated within that speech category on the basis of content. The government may not make content distinctions even within these lower classes of speech solely because of official disapproval of the ideas expressed. ‘‘Thus,’’ Justice Scalia wrote, ‘‘the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.’’

NICOLE B. CA ´ SAREZ

References and Further Reading

• Chemerinsky, Erwin, Content Neutrality as a Central Problem of Freedom of Expression: Problems in the Supreme Court’s Application, S. Cal. L. Rev. 74 (2000): 49–64.
• Farber, Daniel A. The First Amendment, 2nd ed. New York: Foundation Press, 2003.
• Redish, Martin H., The Content Distinction in First Amendment Analysis, Stan. L. Rev. 34 (1981): 113151.
• Stone, Geoffrey R., Content Regulation and the First Amendment, Wm. & Mary L. Rev. 25 (1983):189–252.

Cases and Statutes Cited

• Hill v. Colorado, 530 U.S. 703 (2000)
• Police Department of Chicago v. Mosely, 408 U.S. 92 (1972)
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
• Simon & Schuster v. New York State Crime Victims Board, 502 U.S. 105 (1991)
• Texas v. Johnson, 491 U.S. 397 (1989)

See also Anti-Abortion Protest and Freedom of Speech; Categorical Approach to Free Speech; Content-Neutral Regulation of Speech; Flag Burning; Time, Place & Manner Rule; Viewpoint Discrimination in Free Speech Cases