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