At its core, the First Amendment protects us from being punished by the government for our opinions. However, there are situations where the government can regulate free speech. In those situations, regulations must comply with standards set out by the Supreme Court over the years. The Court breaks these regulations down into two categories: content-based regulation, and viewpoint-based regulation.
"Congress shall make no law…abridging the freedom of speech,”
As a general matter, the government may not regulate speech because of its message, its ideas, its subject matter, or its content.1 It is rare that a regulation restricting speech because of its content will ever be permissible.2 The constitutionality of content-based regulation is determined by a compelling interest test derived from equal protection analysis: the government must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.3 Narrow tailoring in the case of fully protected speech requires that the government choose the least restrictive means to further the articulated interest.4 Application of this test ordinarily results in invalidation of the regulation.5
The Court has recognized two central ways in which a law can impose content-based restrictions, which include not only restrictions on particular viewpoints, but also prohibitions on public discussions of an entire topic.6 First, government regulation of speech is content-based if the regulation on its face draws distinctions based on the message a speaker conveys.7 For example, in Boos v. Barry, the Court held that a Washington D.C. ordinance prohibiting the display of signs near any foreign embassy that brought a foreign government into public odium or public disrepute drew a content-based distinction on its face.8 Second, the Court has recognized that facially content-neutral laws can be considered content-based regulations of speech if a law cannot be justified without reference to the content of speech or was adopted because of disagreement with the message the speech conveys.9 As a result, in an example provided in Sorrell v. IMS Health, the Court noted that if a government bent on frustrating an impending demonstration passed a law demanding two years' notice before the issuance of parade permits, such a law, while facially content-neutral, would be content-based because its purpose was to suppress speech on a particular topic.10
Importantly, for a law that falls within the first category of recognized content-based regulations—those laws that are content-based on their face—the government's justifications or purposes for enacting that law are irrelevant to determine whether the law is subject to strict scrutiny.11 Put another way, for laws that facially draw distinctions based on the subject matter of the underlying speech, there is no need for a court to look into the purpose of the underlying law being challenged under the First Amendment; instead, that law is automatically subject to strict scrutiny.12 As such, in Reed v. Town of Gilbert, the Court, in invalidating provisions of a municipality's sign code that imposed more stringent restrictions on signs directing the public to an event than on signs conveying political or ideological messages, determined the sign code to be content-based and subject to strict scrutiny, notwithstanding the town's benign, non-speech related motives for enacting the code.13 In so holding, the Court reasoned that the First Amendment, by targeting the abridgment of speech, is centrally concerned with the operations of laws and not the motivations of those who enacted the laws.14 In this vein, the Court concluded that the vice of content-based legislation is not that it will always be used for invidious purposes, but rather that content-based restrictions necessarily lend themselves to such purposes.15
A law generally regulating speech that exempts certain speech on the basis of its content may also raise constitutional concerns. In Barr v. American Ass'n of Political Consultants, the Court examined whether an exception in the Telephone Consumer Protection Act of 1991 (TCPA) created invalid, content-based distinctions in the regulatory scheme.16 Since its enactment in 1991, the TCPA prohibited robocalls to cell phones, with exceptions for emergency calls or automated calls following the prior consent of the receiver.17 In 2015, Congress amended the TCPA to exempt calls made to collect federal debt, such as student loan debt.18 In a plurality opinion,19 Justice Kavanaugh wrote that this government-debt exception was content-based on its face, explaining: A robocall that says, 'Please pay your government debt' is legal. A robocall that says, 'Please donate to our political campaign' is illegal.20 In the plurality's view, the distinction created by the 2015 amendment was about as content-based as it gets.21 The government conceded—and the plurality agreed—that the exception did not satisfy strict scrutiny because the government had not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.22
While content-based restrictions on protected speech are presumptively unconstitutional, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech in a few limited areas, including obscenity, defamation, fraud, incitement, fighting words, and speech integral to criminal conduct.23 This two-tier approach to content-based regulations of speech derives from Chaplinsky v. New Hampshire, wherein the Court opined that there exist certain well-defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas and are of such slight social value as a step to truth such that the government may prevent those utterances and punish those uttering them without raising any constitutional issues.24 As the Court has generally applied Chaplinsky over the past several decades, if speech fell within one of the well-defined and narrowly limited categories, it was unprotected, regardless of its effect. If it did not, it was covered by the First Amendment, and the speech was protected unless the restraint was justified by some test relating to harm, such as the clear and present danger test or the more modern approach of balancing the presumptively protected expression against a compelling governmental interest. In more recent decades, the cases reflect a fairly consistent and sustained movement by the Court toward eliminating or severely narrowing the two-tier doctrine. As a result, expression that before would have been held absolutely unprotected (e.g., seditious speech and seditious libel, fighting words, defamation, and obscenity) received protection. While the movement was temporarily deflected by a shift in position with respect to obscenity and by the recognition of a new category of non-obscene child pornography,25 the most recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.26
Even if a category of speech is unprotected by the First Amendment, regulation of that speech on the basis of viewpoint may be impermissible. In R.A.V. v. City of St. Paul,27 the Court struck down a hate crimes ordinance that the state courts had construed to apply only to the use of fighting words. The difficulty, the Court found, was that the ordinance discriminated further, proscribing only those fighting words that arouse[ ] anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.28 This amounted to special prohibitions on those speakers who express views on disfavored subjects.29 The fact that the government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.30
1. Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v. Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S. 490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981); Regan v. Time, Inc., 468 U.S. 641 (1984).
2. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818 (2000). The distinction between, on the one hand, directly regulating, and, on the other hand, incidentally affecting, the content of expression was sharply drawn by Justice Harlan in Konigsberg v. State Bar of California, 366 U.S. 36, 49–51 (1961): Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection. On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. The Court set forth the test for incidental limitations on First Amendment freedoms in United States v. O'Brien, 391 U.S. 367, 376 (1968). See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 537 (1987).
5.But see Williams-Yulee v. Fla. Bar, 575 U.S. ___, No. 13-1499, slip op. (2015) (upholding a provision of the state judicial code prohibiting judicial candidates from personally soliciting campaign funds); Burson v. Freeman, 504 U.S. 191 (1992) (plurality opinion) (upholding state law prohibiting the solicitation of votes and the display or distribution of campaign literature within 100 feet of a polling place).
7.See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (holding that content-neutral speech regulations are those that are justified without reference to the content of the regulated speech.) (internal quotations and citations omitted).
8.See 485 U.S. 312, 315 (1988).
9.See Ward, 491 U.S. at 791.
10. See 564 U.S. 552, 566 (2011).
11. See Turner Broad. Sys. v. FCC, 512 U.S. 622, 642–43 (1994) (Nor will the mere assertion of a content-neutral purpose be enough to save a law which, on its face, discriminates, based on content.).
12. See Reed v. Town of Gilbert, 576 U.S. ___, No. 13-502, slip op. at 8 (2015) (But Ward's framework applies only if a statute is content-neutral.) (internal citations and quotations omitted).
13. Id. at 8. The Reed Court ultimately held that the sign code was not narrowly tailored to further the justifications for the law—aesthetics and traffic safety—because the code did allow many signs that threatened the beauty of the town and because the town could not demonstrate that directional signs posed a greater threat to safety than other types of signs that were treated differently under the code. Id. at 14–15.
14. Id. at 10.
16. 140 S. Ct. 2335 (2020) (plurality opinion).
17. Id. at 2344.
18. Id. at 2344–45.
19. Justice Kavanaugh's plurality opinion on the First Amendment issue was joined by three other Justices, though, in total, five Members of the Court viewed the government-debt exception as impermissibly content-based, and six Members concluded—one on alternative grounds—that it violated the First Amendment. Id. at 2344; see also id. at 2356 (Sotomayor, J., concurring in the judgment) (agreeing with much of the partial dissent's explanation that strict scrutiny should not apply to all content-based distinctions, but concluding that the government-debt exception nevertheless fails intermediate scrutiny because it is not narrowly tailored); id. at 2364 (Gorsuch,J., concurring in the judgment in part and dissenting in part) (In my view, the TCPA's rule against cellphone robocalls is a content-based restriction that fails strict scrutiny.). Seven Members of the Court concluded that the government-debt exception could be severed without invalidating the TCPA in its entirety. Id. at 2342 (plurality opinion).
20. Id. at 2346.
22. Id. at 2347.
23. See United States v. Stevens, 559 U.S. 460, 468 (2010).
24. 315 U.S. 568, 571–72 (1942).
26. See, e.g., United States v. Alvarez, 567 U.S. ___, No. 11-210, slip op. at 5 (2012) (plurality opinion) (Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements.); Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 792 (2011) (holding that the obscenity exception to the First Amendment does not cover violent speech); Stevens, 559 U.S. at 472 (declining to carve out an exception to First Amendment protections for depictions of illegal acts of animal cruelty); Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (refusing to restrict speech based on its level of outrageousness).
27. 505 U.S. 377 (1992).
28. Id. at 391.
30. Id. at 383–84.