Amendment 1 — Viewpoint Discrimination In Facially Neutral Laws

prev | next

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.

A law can discriminate on the basis of viewpoint even if it is viewpoint-neutral on its face. In assessing whether a facially neutral law nevertheless discriminates on the basis of viewpoint, the Supreme Court has asked whether the law, in its “design” or “operation,” favors or disfavors a particular point of view.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn1amd1 " Turner Broad. Sys. v. FCC, 512 U.S. 622, 647 (1994). ")

With regard to discriminatory design, the Court appears to distinguish between a law intended to or crafted to suppress a particular viewpoint and a law advanced or supported by a group with a particular viewpoint. According to the Court, “facially neutral and valid justifications” cannot save a law “that is in fact based on the desire to suppress a particular point of view.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn2amd1 " Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 812 (1985) (holding that the federal government’s decision to exclude advocacy groups from a charity drive aimed at federal employees was reasonable in light of the purposes of the charity drive, but allowing the respondent organization to argue that the decision was a pretext for viewpoint discrimination on remand). ") A law is not viewpoint-based, however, “simply because its enactment was motivated by the conduct of the partisans on one side of a debate.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn3amd1 " Hill v. Colorado, 530 U.S. 703, 724 (2000) (explaining that enacting a law “in response to the activities of antiabortion protesters” did not render that law viewpoint-based). ") Further, while the Supreme Court has examined the general purposes of a statute to assess viewpoint neutrality in some cases,[4](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn4amd1 " E.g., Turner Broad. Sys., 512 U.S. at 646. ") the Court has declined to examine the motivations of particular legislators or regulators in other cases.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn5amd1 " E.g., United States v. O’Brien, 391 U.S. 367, 383–84 (1968). ")

Various decisions of the Court suggest at least three indicators that a law may have been designed to suppress a particular viewpoint. First, a law that singles out particular speakers may be aimed at restricting certain content or certain viewpoints.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn6amd1 " See Citizens United v. FEC, 558 U.S. 310, 340, 353–55 (2010) (opining that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content” ). Court-ordered injunctions, which necessarily apply to particular litigants (and thus particular speakers), present different considerations than a generally-applicable law that targets particular speakers. In Madsen v. Women’s Health Ctr., the Court held that an injunction against a group of anti-abortion protestors was not impermissibly viewpoint-based because it was based on the group’s “past actions,” not “the contents of [their] message.” 512 U.S. 753, 762–63 (1994). ") For example, in Sorrell v. IMS Health, Inc., the Court held unconstitutional a law limiting who could access certain information about prescriptions and for what purposes.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn7amd1 " 564 U.S. 552, 579–80 (2011). ") In addition to being content-based on its face, the Court explained, the law authorized “actual viewpoint discrimination” in practice.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn8amd1 " Id. at 565. ") Formal legislative findings showed that “the law’s express purpose and practical effect [were] to diminish the effectiveness of marketing by manufacturers of brand-name drugs.” [9](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn9amd1 " Id. ") In other words, the Court concluded, the law targeted specific speakers in order to target their messages.[10](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn10amd1 " Id. ") Thus, the law, while viewpoint-neutral on its face, was impermissibly “aimed at a particular viewpoint.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn11amd1 " Id. ")

Second—and related to speaker-based distinctions—a law that contains numerous exemptions may have the impermissible effect of restricting the speech of individuals or entities with a certain point of view. Exceptions and exemptions are not necessarily viewpoint-based: a law that regulates speech may include certain exemptions to avoid undermining the government’s purpose or restricting more speech than is necessary. For example, in a 2014 case, the Court concluded that there was “nothing inherently suspect” in exempting abortion clinic employees from a law that otherwise restricted the zones in which persons could speak outside abortion clinics, because of the need to allow clinic employees “to do their jobs.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn12amd1 " McCullen v. Coakley, 573 U.S. 464, 483 (2014). For other reasons, the Court ultimately held that the law violated the First Amendment because it “burden[ed] substantially more speech than necessary to achieve” the government’s interests. Id. at 490. ") Because exemptions can introduce content or viewpoint-based distinctions,[13](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn13amd1 " E.g., Barr v. Am. Ass’n of Pol. Consultants, Inc., No. 19-631, slip op. at 9 (U.S. July 6, 2020) (plurality opinion). ") however, a law that is “wildly underinclusive” may signal that the law was designed to “disfavor[ ] a particular speaker or viewpoint.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn14amd1 " Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 802 (2011). See Nat’l Inst. of Family and Life Advocates v. Becerra, No. 16-1140, slip op. at 6 n.2, 15 (U.S. June 26, 2018) (expressing reservations about a law’s underinclusivity because of the scope of its exemptions, but declining to decide whether the law was viewpoint-based because it violated the First Amendment on other grounds). ")

Third, a law that restricts only a particular form of expression may be aimed at suppressing a particular viewpoint. For example, Tinker v. Des Moines Independent Community School District arose from the suspension of three public high school students for violating a school policy prohibiting wearing armbands to school.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn15amd1 " 393 U.S. 503, 504 (1969). ") School officials had adopted the policy after learning that a group of students planned to wear black armbands to school as a symbol of opposition to the Vietnam War.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn16amd1 " Id. ") The Supreme Court held that the public school’s denial of this “form of expression” violated the First Amendment .[17](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn17amd1 " Id. at 514. ") Although schools have some leeway to restrict student expression that might reasonably lead to “substantial disruption of or material interference with school activities,” [18](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn18amd1 " Id. See . ") there was no indication that such disturbances would take place under the circumstances.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn19amd1 " Tinker, 393 U.S. at 514. ") Instead, the Court observed, the school adopted the policy in anticipation of this “particular opinion” and prohibited this “particular symbol” but no other political symbols.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn20amd1 " Id. at 510. ") A public school cannot restrict student speech, the Court explained, based on a “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” [21](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn21amd1 " Id. at 509; see also Healy v. James, 408 U.S. 169, 187 (1972) (providing that a state college may not deny official recognition to a student group based on “mere disagreement” with the group’s philosophy). ")

In addition to the design of a law, a claim of viewpoint discrimination may be based on how the law operates in practice. A facially neutral law may be viewpoint-based if, in operation, it restricts or promotes a particular viewpoint.[22](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn22amd1 " Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011). ") Here again the Court has drawn some distinctions. Government action is not automatically viewpoint-based simply because it affects groups with opposing viewpoints unequally.[23](https://www.law.cornell.edu/constitution-conan/amendment-1/viewpoint-discrimination-in-facially-neutral-laws#fn23amd1 " In Wood v. Moss, the Court held that Secret Service agents had not violated a clearly established <a href="/constitution/first_amendment" aria-