I want to give you a little executive summary of free speech doctrine. This is doctrine we will soon be spending a lot of time discussing. But here is the Executive Summary:
Under the Supreme Court’s First Amendment jurisprudence, laws that abridge freedom of speech on the basis of content “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
Laws abridging speech are content-based if they apply to speech based upon “the topic discussed or the idea or message expressed."
Typically, a law is content-based if it restricts or compels speech based upon its subject matter.
For example, a law prohibiting all speech on the subject of abortion would be content-based and thus presumptively unconstitutional.
Although a content-based restriction of speech is a grievous First Amendment problem, viewpoint-based discrimination by government is a “more blatant” and “egregious form of content discrimination.”
Viewpoint-based abridgements of speech are laws that restrict or compel speech based upon a particular ideological position on a particular subject.
If the subject is abortion and the law forbids pro-life speech but allows pro-choice speech, the restriction is viewpoint-based.
The Court has never upheld a law imposing a viewpoint-based restriction on free speech.
Indeed, in the words of Justice Alito, “Viewpoint discrimination is poison to a free society.” Thus, although the Court has never clearly said so, one commentator notes that "as a practical matter, there is a per se rule against viewpoint discrimination.”
I hope this brief summary helps.
No comments:
Post a Comment