Content- and Viewpoint-based Speech Restrictions

The following is an excerpt from an article of mine on Viewpoint Compulsions:

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.”[1] Laws abridging speech are content-based if they apply to speech based upon “the topic discussed or the idea or message expressed.”[2]

              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. [3] In the case of compelled speech, a content-based mandate might be one in which the law requires a speaker to express an opinion—any opinion—on a particular subject. For example, the law might compel a speaker to say something—anything she wishes—about abortion, income inequality, or same-sex marriage. That law is a content-based speech compulsion and is therefore presumptively unconstitutional, unless the government can demonstrate it is narrowly-tailored and serves a compelling state interest.[4] In other words, content discrimination “is a spacious concept that embraces whole subjects of discourse regardless of the ‘viewpoint’ expressed.”[5]

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.”[6] 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 speech critical of a constitutional right to abortion, the restriction is viewpoint-based. In the case of compelled speech, if the subject is same-sex marriage and the speech mandate is to depict same-sex marriage in a positive light, the requirement is viewpoint-based.[7]

The Court has never upheld a law imposing a viewpoint-based restriction on free speech.[8] Indeed, in the words of Justice Alito, “Viewpoint discrimination is poison to a free society.”[9] Thus, although the Court has never clearly said so, “as a practical matter, there is a per se rule against viewpoint discrimination.”[10]  The idea justifying this view is that in a free society it is never appropriate for government to restrict speech on the basis of viewpoint or enact viewpoint-based speech compulsions. In other words, viewpoint-discrimination “is so inconsistent with First Amendment values that it would not even qualify as a legitimate interest capable of satisfying the lowest level of judicial scrutiny.”[11]

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[1] Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). Thus, under the Free Speech Clause, government “’has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Id. (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)).

[2] Id. at 2227.

[3] See id. Such a general ban on the entire subject of abortion would apply to pro-life, pro-choice, and all other perspectives on abortion. It would be content-based, but viewpoint-neutral.

[4] See id. See also Richard F. Duncan, Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media, 99 Neb. L. Rev. 58, at 72-73(2020). Obviously, in the case of compelled speech, the typical case involves speech mandates that tend to compel more particularized expression about certain subjects. See id. (law mandating wedding videography celebrating same-sex weddings).

[5] Marjorie Heins, Viewpoint Discrimination, 24 Hastings Const. L. Q. 99, 101 (1995).

[6] Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).

[7] See Duncan, supra note 4, at 78. Justice Kennedy has defined the test for viewpoint discrimination as ''whether — within the relevant subject category — the government has singled out a subset of messages for disfavor based on the views expressed." Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (racially disparaging trademarks are protected by the Free Speech Clause) (Kennedy, J., concurring in part and concurring in the judgment).

[8] See Lackland H. Bloom Jr., The Rise of the Viewpoint-Discrimination Principle, 72 SMU L. Rev. F. 20,35 (2019).

[9] Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (Alito, J., concurring). See Bloom, supra note 8, at 36 (“In Iancu, Justice Kagan assumed that proof of viewpoint discrimination resulted in automatic invalidation of the law.”).

[10] Id. at 35.

[11] Id. at 36. Or, as Justice Brennan once put it, “Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 62 (1983)(Brennan, J., dissenting).