Overview of Content-Based and Content-Neutral Regulation of Speech

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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 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 This rule applies not only to laws in the form of federal and state statutes and local ordinances,3 but also to government regulations and policies4 and judicial codes of conduct.5 Additionally, the rule applies not only to outright bans or restrictions on speech but also to financial or other regulatory burdens on speech.6 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 including the enforcement of content-neutral laws.8

The Court’s approach to determining whether a law targets speech based on its content has shifted over time.9 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 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

Under Reed, a law can be content based “on its face” or due to a discriminatory purpose or justification.12 A facially content-based law “draws distinctions based on the message a speaker conveys.” 13 Such a law might define regulated speech by “particular subject matter” or by “its function or purpose.” 14 The law might even regulate speech on the basis of the particular views expressed.15 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

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 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 so long as that examination is “only in service of drawing neutral” lines that are “agnostic as to content.” 19 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 As a general matter, content-based laws are “presumptively unconstitutional” and subject to a strict scrutiny standard of judicial review.21 This is a difficult test for the government to satisfy.22 Under strict scrutiny, the government must show that its law serves a compelling governmental interest and is narrowly tailored to advance that interest.23 Narrow tailoring in this context typically means that “[i]f a less restrictive alternative would serve the [g]overnment’s purpose, the legislature must use that alternative.” 24 Thus, in challenges to content-based laws under strict scrutiny, the government bears the burden of proving that any proposed alternatives are less effective than the challenged law.25

The Court has recognized some exceptions to the general rule that content-based laws receive strict scrutiny, two of which reflect the Court’s “limited categorical approach” to First Amendment law.26 Specifically, the Court has subjected laws regulating “commercial speech” to an intermediate form of scrutiny.27 Even in the commercial context, though, the Court has applied or considered applying strict scrutiny to laws that completely ban a subset of commercial speech because of its content or that are aimed at particular commercial speakers.28 In addition to the category of commercial speech (which is protected speech), the Court has recognized some narrowly defined categories of “unprotected speech” that the government may regulate because of their harmful content,29 such as “true threats” and “defamation.” 30 Within those categories, the government may not draw additional content-based distinctions unless “the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.” 31

There are also some specific contexts in which the Court has allowed for certain types of content-based distinctions,32 including schools,33 prisons,34 and nonpublic forums (that is, government-owned property opened for specific or limited public purposes).35 Additionally, the Court has held that when the government is providing a public subsidy, such as a tax exemption, or funding a government program, it may draw some types of content-based distinctions to identify the activities it seeks to subsidize and to define the limits of the government program.36

The Court has distinguished content-based laws from content-neutral laws, while acknowledging that deciding whether a particular law “is content based or content neutral is not always a simple task.” 37 A content-neutral law that imposes only an incidental burden on speech “will be sustained if ‘it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’” 38 Similarly, the government “may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’” 39

1: 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” ).
2: 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)).
3: E.g., Reed, 576 U.S. at 164 (holding that a town’s sign ordinance violated the First Amendment).
4: 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).
5: 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” ).
6: 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” ).
7: 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).
8: 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).
9: See Amdt1.7.3.2 Development of a Judicial Approach to Content-Based Speech Laws.
10: Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
11: Reed, 576 U.S. at 163–64.
12: Id.
13: Id. at 163.
14: Id.
15: 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 Amdt1.7.4.1 Overview of Viewpoint-Based Regulation of Speech.
16: Reed, 576 U.S. at 164 (quoting Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989)).
17: No. 20-1029, slip op. at 6, 8–9 (Apr. 21, 2022).
18: Id. at 6 (internal quotation marks omitted).
19: Id.
20: Id. at 8.
21: Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
22: 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.” ).
23: United States v. Playboy Ent. Grp., 529 U.S. 803, 813 (2000).
24: Id.
25: Ashcroft v. ACLU, 542 U.S. 656, 665 (2004).
26: R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).
27: See Amdt1.7.6.1 Commercial Speech Early Doctrine to Amdt1.7.6.2 Central Hudson Test and Current Doctrine.
28: E.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501–04 (1996) (plurality opinion); Cincinnati v. Discovery Network, 507 U.S. 410, 429 (1993).
29: United States v. Stevens, 559 U.S. 460, 468 (2010); R.A.V., 505 U.S. at 383; New York v. Ferber, 458 U.S. 747, 763–64 (1982).
30: See Amdt1.7.5.5 Fighting Words; Amdt1.7.5.6 True Threats; Amdt1.7.5.7 Defamation.
31: R.A.V., 505 U.S. at 388.
32: See FCC v. Pacifica Found., 438 U.S. 726, 744 (1978) (plurality opinion) (explaining that “[b]oth the content and the context of speech are critical elements of First Amendment analysis” ).
33: Mahanoy Area Sch. Dist. v. B.L., No. 20-255, slip op. at 5 (U.S. June 23, 2021) (identifying three categories of student speech that schools may regulate). See Amdt1.7.8.3 School Free Speech and Government as Educator.
34: E.g., Beard v. Banks, 548 U.S. 521, 526 (2006). See Amdt1.7.8.4 Prison Free Speech and Government as Prison Administrator.
35: Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018). See Amdt1.7.7.1 The Public Forum.
36: See Amdt1.7.13.3 Conditions on Tax Exemptions; Amdt1.7.13.4 Conditions on Federal Funding.
37: Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994).
38: Id. at 662 (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).
39: Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). For more discussion of the time, place, and manner doctrine, see Amdt1.7.7.1 The Public Forum.