Amendment 1 — Overview Of Content Based And Content Neutral Regulation Of Speech

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

At its core, the First Amendment ’s Free Speech Clause prohibits the government from suppressing or forcing conformity with particular ideas or messages.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn1amd1 " See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (explaining that “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 content” ); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (opining that under the First Amendment, the government may not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” ). ") To guard against such abuses of power, the Supreme Court typically has subjected laws that “target speech based on its communicative content” to strict judicial scrutiny.[2](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn2amd1 " Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015); see also Citizens United v. FEC, 558 U.S. 310, 340 (2010) ( “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” ); Ashcroft v. ACLU, 542 U.S. 656, 660 (2004) (to guard against content-based prohibitions as a “repressive force in the lives and thoughts of a free people,” the Constitution “demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality” (internal citations omitted)). ") This rule applies not only to laws in the form of federal and state statutes and local ordinances,[3](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn3amd1 " E.g., Reed, 576 U.S. at 164 (holding that a town’s sign ordinance violated the First Amendment). ") but also to government regulations and policies[4](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn4amd1 " See, e.g., Widmar v. Vincent, 454 U.S. 263, 264, 277 (1981) (holding that a state university’s policy to open its buildings to student groups while denying student groups access “for purposes of religious worship or religious teaching” violated the First Amendment). ") and judicial codes of conduct.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn5amd1 " See Republican Party v. White, 536 U.S. 765, 768 (2002) (holding unconstitutional an ethical standard promulgated by a state supreme court that prohibited candidates for judicial office from “announc[ing]” their “views on disputed legal or political issues” ). ") Additionally, the rule applies not only to outright bans or restrictions on speech but also to financial or other regulatory burdens on speech.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn6amd1 " See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (explaining that the “government’s ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace” ). ") Although this essay focuses on when a law is content based or content neutral and the legal effects of that determination, the free speech principles disfavoring content-based discrimination also apply to other forms of government action,[7](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn7amd1 " See, e.g., Rankin v. McPherson, 483 U.S. 378, 390–92 (1987) (holding that a county law enforcement office unlawfully fired a clerical employee based on the content of her speech even under the more lenient standards applicable when the government is acting as employer). ") including the enforcement of content-neutral laws.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn8amd1 " See, e.g., Cohen v. California, 403 U.S. 15, 18 (1971) (reversing the judgment of conviction of a defendant who was arrested for disorderly conduct in a courthouse because of the content of the message inscribed on his jacket). ")

The Court’s approach to determining whether a law targets speech based on its content has shifted over time.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn9amd1 " See . ") In the 1980s and early 1990s, for example, the Court examined both the text and justifications for a law, but sometimes placed more emphasis on the latter, asking whether the government’s regulatory purpose was related to the suppression of a particular message or form of expression.[10](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn10amd1 " Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). ") The Court’s 2015 decision in Reed v. Town of Gilbert heralded a more text-focused approach, clarifying that content-based distinctions “on the face” of a law warrant heightened scrutiny even if the government advances a content-neutral justification for that law.[11](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn11amd1 " Reed, 576 U.S. at 163–64. ")

Under Reed, a law can be content based “on its face” or due to a discriminatory purpose or justification.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn12amd1 " Id. ") A facially content-based law “draws distinctions based on the message a speaker conveys.” [13](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn13amd1 " Id. at 163. ") Such a law might define regulated speech by “particular subject matter” or by “its function or purpose.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn14amd1 " Id. ") The law might even regulate speech on the basis of the particular views expressed.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn15amd1 " Id. Because the Supreme Court considers viewpoint discrimination “an egregious form of content discrimination,” cases analyzing viewpoint-based laws are discussed separately in a later essay. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). See . ") By comparison, a law that is content neutral on its face still may be deemed content based if the law “cannot be justified without reference to the content of the regulated speech,” or was adopted “because of disagreement with the message [the speech] conveys.” [16](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn16amd1 " Reed, 576 U.S. at 164 (quoting Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989)). ")

After Reed, lower courts diverged over whether a law was necessarily content based on its face if its application or enforcement turned on the content of the speech at issue. In City of Austin v. Reagan National Advertising of Austin, LLC, the Court clarified that a law is facially content based if it applies to particular speech because of the subject matter, topic, or viewpoint expressed—that is, if it turns on the “substantive message” conveyed.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn17amd1 " No. 20-1029, slip op. at 6, 8–9 (Apr. 21, 2022). ") A law may be facially content neutral, the Court explained, even if “a reader must ask: who is the speaker and what is the speaker saying” to determine if the law applies,[18](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn18amd1 " Id. at 6 (internal quotation marks omitted). ") so long as that examination is “only in service of drawing neutral” lines that are “agnostic as to content.” [19](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn19amd1 " Id. ") Thus, in City of Austin, the Court upheld an ordinance that placed certain restrictions only on signs advertising off-premises businesses, even though application of those restrictions depended upon the content of the sign relative to its location.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn20amd1 " Id. at 8. ") As a general matter, content-based laws are “presumptively unconstitutional” and subject to a strict scrutiny standard of judicial review.[21](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn21amd1 " Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). ") This is a difficult test for the government to satisfy.[22](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn22amd1 " See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983) ( “With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.” ). ") Under strict scrutiny, the government must show that its law serves a compelling governmental interest and is narrowly tailored to advance that interest.[23](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-content-based-and-content-neutral-regulation-of-speech#fn23amd1 " United States v. Playboy Ent. Grp., 529 U.S. 803, 813 (2000). ") Narrow tailoring in this context