Content- or Viewpoint-based Regulation
This concept lives or dies on one line: is the government regulating speech because of WHAT it says, or for some reason that has nothing to do with the message?
15. Free Speech: Content- or Viewpoint-based Regulation
Government content-based regulation of protected expression is strongly presumed to be invalid, and viewpoint- based regulation, a sub-category of content-based regulation, is even more highly scrutinized. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).
- Test-takers should know the distinctions among viewpoint-based, content-based, and content-neutral regulations of protected expression and should be able to identify examples that fall within each category.
- Content-based regulations of protected expression are highly disfavored. Strict scrutiny is used to determine the constitutionality of a content-based regulation of protected speech, meaning that the government’s interest must be compelling and the regulation must be narrowly drawn and the least intrusive method to achieve the government’s interest.
- Viewpoint-based regulation of expression is even more highly disfavored. The Supreme Court applies strict scrutiny vigorously to these regulations, and has repeatedly declared that viewpoint discrimination is prohibited. The Court has never upheld a restriction that it recognized as viewpoint discrimination.
A regulation that reaches protected speech because of what it says is content-based (or, if it picks a side, viewpoint-based). Both are strongly presumed invalid and trigger strict scrutiny: a compelling interest, narrowly drawn by the least intrusive method.
This concept lives or dies on one line: is the government regulating speech because of what it says, or for some reason that has nothing to do with the message? That single question sorts every free-speech regulation of protected expression into two very different worlds. A regulation is content-based when it targets speech because of its subject matter or its message. A regulation is viewpoint-based, a sub-category of content-based, when it targets a particular position or perspective on a subject, picking a side.
Both of those are strongly presumed invalid, and both trigger strict scrutiny: the government must show its interest is compelling and that the regulation is narrowly drawn and the least intrusive method to achieve that interest. Viewpoint-based regulation is the most disfavored of all; the Court applies strict scrutiny to it vigorously and has never upheld a restriction it recognized as viewpoint discrimination. The contrast that makes the whole thing work is content-neutral regulation, which does not turn on the message at all and earns only intermediate scrutiny.
The lower tier belongs to a different concept, and importing it here is the classic mistake: take a law that draws lines based on what is said, call it content-neutral, and apply the lenient standard. The label drives the tier, and the tier usually drives the result, so the work is in correctly identifying content-based versus content-neutral on the face and purpose of the regulation, then applying strict scrutiny when the regulation reaches speech because of its content.
"What is said versus when and where."
If the rule turns on the message or subject matter, it is content-based and gets strict scrutiny; if it targets one side of a debate, it is viewpoint-based and is the most disfavored of all.
The defeating cue: any answer that runs a content-based or viewpoint-based rule through intermediate scrutiny, the time-place-manner test, or an "important" or "substantial" interest is wrong.
Content-based means compelling interest, narrowly drawn, least intrusive.
regulate by message equals strict scrutiny; pick a side equals the worst of all and almost certainly invalid.
A city council, troubled by heated debate over a proposed development, passes an ordinance that bars any sign on public property that "takes a position on a pending land-use application." Signs on other topics are untouched. A resident who wants to post a sign opposing the development challenges the ordinance under the Free Speech Clause.
An ordinance that limits the size and number of all signs on public property, whatever they say, is content-neutral and would be judged under a far more lenient standard, which is a different concept entirely.
An option runs a content-based or viewpoint-based law through intermediate scrutiny, the time-place-manner test, or an "important"/"substantial" interest.
Content-based regulation gets strict scrutiny: a compelling interest, narrowly drawn, least intrusive. The lenient content-neutral standard belongs to a different concept and cannot save a content-based law.An option calls a law content-neutral by looking only at its form or its even-handed application while ignoring that it draws lines by subject matter or message.
A rule that reaches speech because of what it says is content-based no matter how neutrally it is worded or how evenly it is applied.An option misstates the standard, describing the test as "substantially related to an important interest" or strict scrutiny as merely "rationally related."
Strict scrutiny for a content-based law requires a compelling interest and a narrowly drawn, least intrusive regulation, not an important interest or a rational relationship.An option claims a viewpoint-based restriction can survive if the interest is strong enough, or that such restrictions are upheld in some settings.
Viewpoint discrimination is the most disfavored category, and the Court has never upheld a restriction it recognized as viewpoint discrimination.the stem hands you a government rule that reaches protected expression and then makes you sort it.
Watch for language that picks out speech by its subject ("signs about X," "speech on the topic of Y"), which is content-based, or by its side ("messages opposing," "only speech that supports"), which is viewpoint-based and the most disfavored.
The instant the rule turns on what is said, the tier is strict scrutiny: compelling interest, narrowly drawn, least intrusive.
The distractors will try to slide the law into intermediate scrutiny or the time-place-manner test by calling it content-neutral, so run the one-question check: does the rule depend on the message?
If yes, it is content-based (or viewpoint-based), strict scrutiny applies, and any option using an "important" or "substantial" interest is a distractor.
If the rule does not depend on the message at all, that is content-neutral, a different concept with a lower tier.
A city council became frustrated by the volume of leaflets handed out downtown about a single hot-button local issue, so it passed an ordinance forbidding the distribution on public sidewalks of any leaflet that discusses the upcoming stadium-financing measure. Leaflets on every other topic remain freely permitted on the same sidewalks. A resident who wants to hand out leaflets criticizing the financing plan challenges the ordinance under the Free Speech Clause.
Under existing precedent, what level of scrutiny applies to the ordinance?
A town opened the walls of its community center to residents' posters on local matters. After a divisive debate over a new shelter, the town adopted a rule allowing posters that support building the shelter but forbidding any poster that opposes it. A resident who wants to post a flyer arguing against the shelter challenges the rule under the First Amendment's free speech protection.
Under existing precedent, is the town's rule likely to be upheld?
A public university adopted a policy barring any flyer posted on campus bulletin boards if the flyer addresses a political candidate or a ballot question, while allowing flyers on every other topic. A student group that wants to post flyers urging a vote on a ballot question sued, and the university defended the policy by arguing that it is substantially related to the important interest of keeping the campus free of political strife.
Under existing precedent, is the university's defense likely to succeed?
A city enacted two sign rules for its downtown. Rule one limits every sign on private lawns to a maximum of six square feet, no matter what the sign says. Rule two prohibits any sign on a private lawn that comments on a labor dispute, while permitting lawn signs on all other topics. A homeowner who wants to display a large sign supporting striking workers challenges both rules under the Free Speech Clause.
Under existing precedent, how should a court evaluate the two rules?
A city park district adopted a regulation banning any speech in its parks that addresses a current religious controversy, while leaving speech on all other subjects untouched. A speaker who was stopped from giving a talk on the controversy sued under the First Amendment's free speech protection. The parties agree the regulation is content-based and dispute only what the city must show to sustain it.
Under existing precedent, what must the city establish to sustain the regulation?