Content-Based and Viewpoint-Based Regulation of Speech

The protection of free speech under the First Amendment originates from a prohibition on Congress, our federal legislative body. The free speech clause of the First Amendment to the U.S. Constitution reads:

“Congress shall make no law…abridging the freedom of speech…"

Congress may not enact laws restricting our right to free speech. But the Supreme Court has long interpreted this right to limit more than just Congressional lawmaking. It prohibits any governmental action, at any level, that restricts our freedom of speech.

This freedom is not an absolute right, and its contours have been shaped by the Supreme Court’s interpretation of the First Amendment.

In this article, we'll discuss the Supreme Court's analysis of government actions that restrict free speech, specifically, how the Court views content-based and content-neutral restrictions differently.

The Supreme Court’s Approach to Regulation of Speech

Supreme Court precedent has established legal standards for determining whether government action restricting speech is constitutional. It has also established some permissible governmental restrictions on free speech.

Another phrase for governmental action in this context is “state action.” As the Court explained in Cohen v. California, state actions restricting free speech can include laws at any level. It can also include less official policies, rules, enforcement measures, and prosecution actions.

When a state action or restriction is challenged as an unconstitutional infringement on the First Amendment right to free speech, a primary consideration is whether the restriction is content-based or content-neutral.

Content-Based Restrictions On Speech

The very essence of our constitutional right to free speech is that the government may not suppress us from expressing particular ideas because of their content or messaging.

The Supreme Court has also established that speech, in the First Amendment context, can include other forms of expression like conduct, the written word, and symbolic actions.

For example, the Court held in Texas v. Johnson that flag burning in protest was a form of speech protected by the First Amendment. Similarly, the Court found not saluting the American flag to be another form of protected speech in West Virginia Board of Education v. Barnette.

As the Supreme Court stated in Reed v. Town of Gilbert, any law that seeks to regulate speech on the basis of subject matter, topics, or substantive messaging is considered content-based and is “presumptively unconstitutional.”

Strict Scrutiny

Courts will generally evaluate content-based restrictions using a legal standard called strict scrutiny. This is the most difficult standard of judicial review. Strict scrutiny requires the state to demonstrate that the content-based restriction meets both of the following requirements:

• Serves a compelling state interest

• Is narrowly tailored to serve that compelling government interest

In other words, if there’s an alternate less restrictive way for the state to solve a real problem, the content-based restriction fails the strict scrutiny test. If that’s the case, the courts will generally determine the restriction is unconstitutional.

The Court clarified in Ashcroft v. American Civil Liberties Union (ACLU) that the state bears the burden of proving that proposed alternatives to the content-based restriction wouldn’t work as effectively.

What Are Compelling State Interests?

Supreme Court precedent has established several state interests as compelling. For example, the Court identified national security as a compelling state interest. Likewise, in Sable Communications of California v. FCC, the Court determined that the protection of “the physical and psychological well-being of minors” constituted a compelling state interest.

In Boos v. Barry, the Court evaluated the constitutionality of a local ordinance in Washington, D.C. The law banned signs that generated public hatred towards a foreign government from being displayed near foreign embassies.

The Court held that the ordinance was an unconstitutionally content-based restriction on political speech. It also found that protecting foreign governments from hatred or insults wasn’t a compelling state interest that satisfied the strict scrutiny test.

Political Speech

Courts treat restrictions on political speech as particularly suspect. The Court recognizes political speech as fundamental to democracy. Expressions of political views and ideologies are central to the free speech protections of the First Amendment. As the Court stated in Brown v. Entertainment Merchants Association, the free speech clause "exists principally to protect discourse on public matters.”

Permissible Content-Based Restrictions

Conversely, there are a few content-based categories of speech the Court has deemed unprotected speech. This means that governmental restrictions on these types of speech are generally permissible. They may, however, be struck down on other grounds.

One such category is incitement, or inciting language that advocates violence, force, or lawlessness if it’s likely to bring about such a result.

In Brandenburg v. Ohio, the Court said that speech that’s “directed at inciting or producing imminent lawless action and is likely to incite or produce such action” is unprotected.

Other categories of unprotected speech include:

• Defamation

• Fighting words

• Obscenity

• True threats

The Court has also specifically addressed First Amendment issues related to child pornography. As the Court noted in New York v. Ferber, child pornography doesn’t have to satisfy the legal standard for obscenity to fall into this unprotected category.

But, although these are content-based categories of unprotected speech, it doesn’t mean that restrictions on these categories will always be constitutional.

For example, in R.A.V. v. City of St. Paul, the Court found that a law prohibiting fighting words was unconstitutional. The law banned speech that provoked violence or insulted someone “on the basis of race, color, creed, religion or gender.”

The Court struck down the local law and explained that it regulated speech based on its ideas. The state, the Court held, may not impose speech restrictions “because it disagrees with the messages conveyed.”

Viewpoint Discrimination

Viewpoint discrimination is a kind of content-based restriction that the Court considers particularly offensive to our First Amendment rights. This is because viewpoint-based restrictions target particular views of subject matter or ideologies.

Viewpoint discrimination is present when regulations on speech are based on a particular belief system or point of view. As the Court said in Rosenberger v. Rector and Visitors of the University of Virginia, these viewpoint-based restrictions are an “egregious form of content discrimination.”  

In Iancu v. Brunetti, the Court addressed a law that prohibited “immoral or scandalous” trademarks. The Court determined the law was unconstitutional because it engaged in viewpoint discrimination. As in this case, courts will sometimes strike down a viewpoint-based restriction as unconstitutional without undergoing a scrutiny analysis at all.

Government Speech

Conversely, the government may restrict its own speech or those speaking on its behalf. The Supreme Court has held that the First Amendment right to free speech generally protects private speech from government restrictions. It doesn't, however, protect government speech from government restrictions.

The government is free to speak and restrict or control the expression of those speaking on its behalf. This is known as the government speech doctrine.

For example, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., the Court held that the design of a state license plate was considered government speech. Consequently, the First Amendment didn’t prevent the state from denying the Sons of Confederate Veterans their requested specialty plates with a Confederate flag design.

The state refused because the design communicated messaging that was offensive to most. Because of the government speech doctrine, however, the state could have denied or approved any plate designs with any viewpoint-based or content-based restrictions it chose.

Content-Neutral Restrictions

Content-neutral laws, on the other hand, are those that regulate speech but not on the basis of its messaging or ideas.

In Ward v. Rock Against Racism, the Supreme Court clarified that government regulation serving a function “unrelated to the content of expression” is considered content-neutral if, on its face, it’s not regulating speech or expression based on its “subject matter, topic, or viewpoint.”

In other words, content-neutral speech restrictions are restrictions that are “justified without reference to the content of the regulated speech.”

Time, Place, and Manner Restrictions

The Ward Court said that speech, or any type of expression, is subject to reasonable time, place, or manner regulations. And public forums are no exception.

For example, a city may have an ordinance restricting the days or times parades may be held. This was the case in Cox v. New Hampshire. There, the Court stated that municipal laws protecting the safety and convenience of those using public roadways don’t challenge our freedom of speech or other civil liberties. Rather, they preserve the order on which we depend.

Intermediate Scrutiny

In Ward, the Court stated that these content-neutral time, place, and manner laws are subject to a judicial standard of review called intermediate scrutiny. This means the laws must be:

• Narrowly tailored to advance a significant state interest, and

• Leave alternate means available to convey the relevant information.

Intermediate scrutiny is also the judicial standard of review for commercial speech.

The Court has recognized a difference between restrictions that directly regulate the content of expression and those that incidentally affect it.

In United States v. O’Brien, the Court addressed whether a law that criminalized draft-card burning as part of an anti-war protest violated First Amendment protections. In doing so, it established a test similar to immediate scrutiny for evaluating laws when expressive conduct involving speech and non-speech expression is at issue.

Essentially, if a content-neutral law only incidentally burdens free speech, it will be upheld if:

• It serves a substantial or important state interest

• The state interest isn’t related to the restriction on free speech or expression

• The incidental burden on First Amendment rights is limited to what is essential to advance that state interest

Applying this new test, the O’Brien Court found the law to be constitutional. It explained that the prohibition on card burning was necessary to administer the draft program and sufficiently narrow to further that interest.

The First Amendment right to free speech protects us from governmental suppression of ideas, messaging, and subject matter. Likewise, it prohibits the government from forcing us to adopt certain beliefs or ideas.

Content-neutral and content-based restrictions on free speech are both subject to First Amendment analysis and scrutiny. However, Supreme Court precedent has established that content-based regulation, including viewpoint discrimination, generally deserves higher scrutiny.