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.

Even if a law is content neutral on its face, it could still be considered content based if it “cannot be ‘justified without reference to the content of the regulated speech’” or was “adopted by the government ‘because of disagreement with the message [the speech] conveys.’” 1 For example, in 1990, the Court held that a defendant could not be prosecuted for burning a flag in violation of a federal statute.2 The case followed the Court’s landmark symbolic-speech case Texas v. Johnson, in which the Court recognized that flag burning is a constitutionally-protected expressive activity under some circumstances.3 Unlike the state law at issue in Johnson, however, the federal statute contained “no explicit” content-based limitation on flag burning.4 The Court nonetheless concluded that Congress was concerned with the “communicative impact of flag destruction” because its stated goal of protecting the “physical integrity” of the flag depended on “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals.” 5 That justification for the law rendered it content based for purposes of First Amendment analysis.

The Court has also encountered laws that are content based both on their face and in their “design” and “practical operation.” 6 In Sorrell v. IMS Health Inc., the Court considered a state law that prohibited the use of certain pharmacy records for marketing purposes without the prescribers’ consent.7 The Court held that on its face, the law imposed content-based restrictions on the use of these records because it “disfavor[ed] marketing,” which is “speech with a particular content.” 8 The Court observed, too, evidence of a content-discriminatory purpose, pointing to statements in the legislative record suggesting that “the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs” —a content-based justification.9

Footnotes

1

Reed v. Town of Gilbert, 576 U.S. 155, 164 (2015) (quoting Ward, 491 U.S. at 791).

2

United States v. Eichman, 496 U.S. 310, 319 (1990).

3

491 U.S. 397 (1989). See Amdt1.7.14.1 Overview of Symbolic Speech.

4

Eichman, 496 U.S. at 315.

5

Id. at 315–17 (observing too that the law prohibited mutilating, defacing, defiling, burning, or trampling upon a flag but authorized the disposal of a “worn or soiled” flag).

6

Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011).

7

Id. at 559.

8

Id. at 564. For a discussion of the components of the law that the Court deemed viewpoint discriminatory, see Amdt1.7.4.3 Viewpoint Discrimination in Facially Neutral Laws.

9

Id. at 565. Although it found the law to be content based, the Court ultimately concluded that the law failed even the intermediate scrutiny that applies to commercial speech restrictions. Id. at 571.