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.
As explained in Amdt1.7.3.1 Overview of Content-Based and Content-Neutral Regulation of Speech, laws regulating protected speech on the basis of its content are generally subject to strict judicial scrutiny.1 As the Supreme Court has acknowledged, however, deciding whether a particular law “is content based or content neutral is not always a simple task.” 2 When confronted with the question, the Court has examined a law’s text (that is, the face of the law) and considered arguments about the law’s justification, purpose, design, and operation.
Whether a content-based distinction on the face of the law rendered that law presumptively invalid has changed over time, with earlier cases lacking a consistent approach.3 For example, in the 1980s and early 1990s, the Court sometimes considered laws that drew content-based distinctions on their face to be content neutral (and subject to a form of intermediate scrutiny) so long as they were supported by a content-neutral justification.4 This approach started to shift in the mid-1990s, as the Court began to clarify that a content-neutral purpose cannot “save a law which, on its face, discriminates based on content.” 5
In its 2015 decision in Reed v. Town of Gilbert, the Court squarely held that a facially content-based law is subject to strict scrutiny “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” 6 Thus, under the approach set out in Reed, a law may be content based, and thus presumptively unconstitutional, if it draws content-based distinctions on its face or if it reflects a discriminatory purpose.7
-
Footnotes
- 1
- See Amdt1.7.3.1 Overview of Content-Based and Content-Neutral Regulation of Speech.
- 2
- Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994).
- 3
- Compare Erznoznik v. Jacksonville, 422 U.S. 205, 209–11 (1975) (suggesting that intermediate scrutiny was inappropriate for an ordinance prohibiting drive-in movie theaters from showing films containing nudity when their screens were visible from a public place, because the ordinance “discriminate[d] among movies solely on the basis of content” ), with Young v. Am. Mini Theatres, 427 U.S. 50, 71–73 (1976) (viewing an ordinance restricting the location of “adult” movie theatres as a permissible restriction on the “place” where films could be exhibited even though the law distinguished among films based on their content).
- 4
- See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (explaining that the “principal inquiry in determining content neutrality” is “whether the government has adopted a regulation of speech because of disagreement with the message it conveys” and that the “government’s purpose is the controlling consideration” ); see, e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 791 n.1, 804 (1984) (applying intermediate scrutiny to an ordinance that excepted certain historical and cultural markers from a general prohibition on posting signs on public property). Relatedly, the Court has upheld some zoning restrictions on adult theatres on the grounds that the restrictions were based on the undesirable “secondary effects” of such theatres rather than the content of the movies shown there. See Amdt1.7.3.7 Content-Neutral Laws Burdening Speech.
- 5
- Turner Broad. Sys. v. FCC, 512 U.S. 622, 642–43 (1994).
- 6
- Reed, 576 U.S. at 165 (quoting Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 429 (1993)).
- 7
- Id.