Little Known Works of Famous Authors

Constitutional Law II

Constitutional Law II – First Amendment Outline

Professor Denning – Spring 2005

Daniel Harrell



§1: The Distinction between Content-Based and Content-Neutral Laws


I.                   Importance of the Distinction


A.     Overview

The Supreme Court frequently has declared that the very core of the First Amendment is that the government cannot regulate speech based on its content. As the Court has noted, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its conduct.” Free speech doctrine starts with a fundamental distinction between content-based and content-neutral regulations.


1)      Content-Based Laws

Content-based laws regulate the subject matter of speech – they are aimed at the communicative impact of speech. For instance, the Sedition Act of 1798 punished “malicious writings against the United States, or Congress, or the President, with intent to bring them into contempt or disrepute. The law punished only speech that has a communicative impact, or delivered a particular message. It is now universally agreed that this law was content-based and invalid. In short, a content-based restriction on speech is one in which the applicability of the law is triggered by the substance or content of the message being conveyed.


a)      Test for Content-Based Laws

The Court has declared that content-based regulations are presumptively invalid. The general rule is that content-based restrictions on speech must meet strict scrutiny. “Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes the essential First Amendment right.”


2)      Content-Neutral Laws

Content-neutral speech restrictions are intended to control something other than the communicative impact of speech, but in doing so they have an incidental impact on speech. A law regulating speech is content-neutral if it applies to all speech regardless of the message. For example, a law prohibiting the posting of all signs on public utility poles would be content-neutral because it would apply to every sign regardless of its subject matter or viewpoint. A law might also be content-neutral if it regulates conduct and has an effect on speech without regard to its content. For example, a sales tax, applicable to all purchases inclusive of reading material, might have a significant incidental effect on speech, but is content-neutral.


a)      Test for Content-Neutral Laws

Content-neutral speech restrictions are subject to more lenient scrutiny than content-based restrictions. In general, content-neutral regulations must survive an intermediate level of scrutiny. Governments must prove that such regulations of speech are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.


B.     Determining Whether a Law is Content-Based or Content-Neutral

The requirement that the government be content-neutral in its regulation of speech means that the regulation must be both viewpoint neutral and subject matter neutral.


1)      Viewpoint Neutral

Viewpoint neutral mean