7 Contemporary Speech Doctrine and the Principle of Content Discrimination

Content Discrimination and Content-Neutrality

The current framework for assessing regulations that burden core or protected speech is built on the principle of content discrimination. Governments regulate speech for any number of reasons, but some, the Court has held, are more objectionable to the First Amendment than others. Laws that discriminate based on the content of the speech—such as a law that bans political speech at a public farmer’s market while allowing speech on religion or sports—are normally unacceptable. This principle takes the marketplace of ideas analogy seriously, making clear that the government should not be picking winners or losers within that market or putting its thumb on the scale by censoring or burdening particular types of speech. Laws that so regulate are presumptively unconstitutional.

Note that content discrimination is distinct from viewpoint discrimination, which is a narrower and even more objectionable type of content discrimination. To carry on with the farmer’s market example, a law that banned political speech at the farmer’s market but not other types of speech would be content discrimination, while a law that only banned political speech critical of the governor would be viewpoint discrimination. The latter scenario is particularly harmful to free speech since the government is clearly using its authority to censor one side of a debate. Since all viewpoint discrimination is also content discrimination (but not the reverse), it too faces a presumption of unconstitutionality.

By contrast, there are many content-neutral reasons government might need to regulate speech. Some examples:

• two parades cannot march at the same time down the same street
• a protest perfectly acceptable in a public park at noon might be unacceptable outside your apartment at 3:00 am
• allowing groups to protest in the middle of the freeway every day during rush hour

If governments regulate speech in a manner that affects all speakers or speech equally, such as laws that regulate the time, place, and manner of the speech in question, courts are much more likely to uphold them.