Laws Making Facial Content-Based Distinctions Regarding Speech

prev | next

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.

The Supreme Court has recognized that the “ First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” 1 In 1980, the Court struck down a state order prohibiting private utility companies from including inserts in their billing envelopes discussing “controversial issues of public policy.” 2 The Court reasoned that the order imposed an impermissible content-based restriction even though it did “not favor either side of a political controversy,” reaffirming the general rule that the government may not regulate speech based on its subject matter.3 The Court explained that to “allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.” 4

Drawing on these precedents, the Court set out the modern test for determining whether a law is facially content based in two decisions involving local sign ordinances. In its 2015 decision in Reed v. Town of Gilbert, the Court held that a law is content based “on its face” if it “draws distinctions based on the message a speaker conveys.” 5 The Court explained that “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.” 6 The ordinance at issue in Reed fell into the former category because it “single[d] out specific subject matter for differential treatment” by, for example, placing more onerous restrictions on “political” signs than on “ideological” signs.7

Other examples of laws that the Court has determined to be facially content based include a federal statute criminalizing the commercial sale of “depictions of animal cruelty,” 8 a federal statute requiring cable television operators to scramble or restrict the daytime transmission of channels “primarily dedicated to sexually-oriented programming,” 9 a federal statute restricting “indecent” and “patently offensive” internet communications,10 and a state law imposing a sales tax on general interest magazines but exempting religious, trade, and sports magazines.11

Although Reed clarified the meaning of “content based” to some extent, courts continued to grapple with the question of whether a law is content based—and thus presumptively unconstitutional—whenever the government must read the speech at issue to determine the law’s applicability or the speaker’s compliance with the law.12 In its 2022 decision in City of Austin v. Reagan National Advertising of Austin, LLC, the Court rejected that formulation of the rule as “too extreme an interpretation of this Court’s precedent.” 13 The case involved a city ordinance restricting “off-premises signs” —signs advertising or directing readers to businesses or events at another location, but not restricting signs advertising activities on the same premises. In practice, determining whether the restrictions applied required reading the sign to identify whether it advertised a business or event on or off of the premises where the sign was posted. In the majority’s view, that ordinance was content neutral because it did not “single out any topic or subject matter for differential treatment.” 14 Instead, the ordinance distinguished signs based on a content-neutral factor—location—rather than their “substantive message.” 15

City of Austin also addressed the statement in Reed that laws that distinguish speech based on its “function or purpose” are content based.16 The Court opined that not every “classification that considers function or purpose” is content based.17 Instead, the Court suggested that defining regulated speech by its function is only problematic when function is used as a “proxy” for regulating content, such as when a legislature attempts to regulate political signs by describing regulated signs as those “designed to influence the outcome of an election.” 18

As with laws that restrict a discrete category of speech, laws that exempt one category of speech from a broader speech restriction could also create a facial content-based distinction.19 In Regan v. Time, Inc., the Court evaluated a statutory exception to a long-standing ban on photographic reproductions of currency,20 allowing certain publishers to use these photographs for “educational, historical, or newsworthy purposes.” 21 The Court held that the purpose provision was “constitutionally infirm” because whether a photograph is “newsworthy” or “educational” requires the government to make a content-based judgment.22

The Court again struck down a content-based exception in Barr v. American Association of Political Consultants.23 That case concerned a 1991 federal law that, among other things, prohibited automated calls to cell phones, also known as “robocalls.” 24 Congress had added a provision in 2015 that exempted calls made to collect debt owed to the federal government, such as student loan debt, from the robocall restriction.25 Five Justices held that the robocall restriction was impermissibly content based,26 with a different majority concluding that the appropriate remedy was to “sever” the government-debt exception.27 A plurality of the Court wrote that “[b]ecause the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.” 28 Thus, even though Congress had removed a restriction on speech when it added the government-debt exception, that 2015 amendment created a “discriminatory exception” that resulted in “unequal treatment” of government-debt collection speech versus speech on other topics.29

1: Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 537, 544 (1980) (citing Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)).
2: Id. at 533.
3: Id. at 537–39; see also FCC v. League of Women Voters, 468 U.S. 364, 366, 383 (1984) (reasoning that a ban on “editorializing” by noncommercial broadcasting stations receiving federal funds was “defined solely on the basis of the content of the suppressed speech” ).
4: Consol. Edison Co., 447 U.S. at 538.
5: 576 U.S. 155, 163 (2015).
6: Id.
7: Id. at 159–60, 169; see also Burson v. Freeman, 504 U.S. 191, 197, 207, 211 (1992) (plurality opinion) (concluding that a state law prohibiting the solicitation of votes and the display or distribution of campaign materials within 100 feet of a polling place entrance was content based because the statute reached only political speech, not “other categories of speech, such as commercial solicitation,” but concluding that the law nonetheless survived strict scrutiny); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 493, 521 (1981) (plurality opinion) (striking down a billboard ordinance that “favor[ed] certain kinds of messages—such as onsite commercial advertising, and temporary political campaign advertisements—over others” ).
8: United States v. Stevens, 559 U.S. 460, 468 (2010).
9: United States v. Playboy Ent. Grp., 529 U.S. 803, 806, 811 (2000); see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 115–18, 123 (1991) (holding that a state law imposed an unconstitutional, content-based burden on speech by requiring anyone who contracts with an accused or convicted person for a depiction of the person’s crime to turn over any income from that work to the state’s crime victims board); Erznoznik v. Jacksonville, 422 U.S. 205, 211–12 (1975) (holding that an ordinance prohibiting drive-in movie theaters visible from public streets from showing films depicting nudity was an invalid, content-based prohibition).
10: Reno v. ACLU, 521 U.S. 844, 868 (1997); see also Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 122 (1989) (suggesting that a law banning “indecent” interstate commercial telephone communications regulated “the content of constitutionally protected speech” ); Boos v. Barry, 485 U.S. 312, 315, 334 (1988) (finding content based and holding unconstitutional a law banning the display of signs outside of an embassy that bring the foreign government of that embassy into “public disrepute” ).
11: Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 223, 230–33 (1987) (holding that this “selective taxation” system violated the First Amendment).
12: City of Austin v. Reagan Nat’l Advert. of Austin, LLC, No. 20-1029, slip op. at 6 (Apr. 21, 2022); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (holding that a county ordinance requiring a permit to hold a public parade or assembly and a fee for “necesary and reasonable” police protection was content based as implemented because “[i]n order to assess accurately the cost of security for parade participants,” the county “must necessarily examine the content of the message that is conveyed” ). Other decisions of the Court sometimes framed the standard as whether the law turns on what a speaker says. See Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010) (holding that a federal statute prohibiting material support to foreign terrorist organizations was content based because whether the law would allow the plaintiffs to speak with a foreign terrorist organization “depends on what they say” ).
13: City of Austin, slip op. at 6.
14: Id. at 8.
15: Id. See Amdt1.7.3.7 Content-Neutral Laws Burdening Speech.
16: City of Austin, slip op. at 11.
17: Id.
18: Id. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995) (reasoning that a state’s ban on anonymous campaign literature defined the regulated documents “by their content,” which was “publications containing speech designed to influence the voters in an election” ).
19: See Carey v. Brown, 447 U.S. 455, 460–63, 471 (1980) (holding that a statute banning residential picketing but exempting labor picketing was a content-based restriction on speech that violated the First Amendment and the Equal Protection Clause); Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 93, 102 (1972) (holding the same with respect to an ordinance banning picketing outside of schools).
20: Regan v. Time, Inc., 468 U.S. 641, 644 (1984) (plurality opinion).
21: Id. (quoting 18 U.S.C. § 504(1)).
22: Id. at 648–49 (majority opinion). The Court ruled that the purpose provision was “unenforceable,” but upheld other statutory exceptions allowing the photographs to be published subject to certain size and color limitations. Id. at 658–59 (plurality opinion).
23: Barr v. Am. Ass’n of Political Consultants, No. 19-631, slip op. (U.S. July 6, 2020) (plurality opinion); id. at 1 (Gorsuch, J., concurring in the judgment in part and dissenting in part).
24: Id. at 1 (plurality opinion).
25: Id.
26: Id. at 9; id. at 3 (Gorsuch, J., concurring in the judgment in part and dissenting in part).
27: Id. at 25 (plurality opinion); id. at 2 (Sotomayor, J., concurring in the judgment); id. at 1 (Breyer, J., concurring in the judgment with respect to severability and dissenting in part).
28: Id. at 7 (plurality opinion).
29: Id. at 18, 20.