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.

Content-based regulation of speech is generally subject to strict scrutiny and presumptively unconstitutional.1 The Supreme Court considers viewpoint-based regulation of speech to be “an egregious form of content discrimination.” 2 A law3 is viewpoint-based when it regulates speech based on its “specific motivating ideology” or the speaker’s “opinion or perspective.” 4 The following general principles have emerged from the Supreme Court’s decisions on viewpoint discrimination and the Free Speech Clause of the First Amendment.

First, the Free Speech Clause ordinarily prohibits the government from restricting speech based on the particular views expressed in that speech.5 Even when regulating speech that is otherwise proscribable, the government typically may not permit some viewpoints and disallow others.6 The government may differentiate among viewpoints only in limited circumstances,7 such as when the government itself is the speaker,8 or when the government selectively funds certain speech as part of a government program.9 These limited exceptions are discussed elsewhere in the Constitution Annotated.10

Second, the government generally may not compel a private party to espouse a particular viewpoint.11 This principle extends to compelled association12 and compelled subsidization of speech.13

Third, laws that do not single out a specific viewpoint on their face, but that were enacted for the purpose of suppressing an idea or message, or otherwise invite discriminatory enforcement, sometimes run afoul of the First Amendment as well.14

Footnotes

1

See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech.

2

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).

3

This group of essays generally refers to viewpoint-based laws, which may include statutes or regulations. However, as these cases illustrate, the principle of viewpoint neutrality also extends to the policies of public institutions, the enforcement of public laws, and other types of government actions. See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485, 505 (1984) (stating that the “principle of viewpoint neutrality” imposes “a special responsibility on judges” when deciding whether a particular communication receives First Amendment protection).

4

Rosenberger, 515 U.S. at 829.

5

See Amdt1.7.4.2 Viewpoint-Based Distinctions on the Face of a Law.

6

See Amdt1.7.4.4 Viewpoint-Based Distinctions Within Proscribable Speech.

7

See, e.g., Morse v. Frederick, 551 U.S. 393, 403 (2007) (holding that a high school principal may “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use” ).

8

See, e.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 219 (2015) (holding that an organization could not “force Texas to include a Confederate battle flag on its specialty license plates” because those plates were “government speech” ); Pleasant Grove City v. Summum, 555 U.S. 460, 481 (2009) (holding that a city’s “decision to accept certain privately donated monuments while rejecting respondent’s” was “best viewed as a form of government speech” that did not require viewpoint-neutrality).

9

See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) (explaining that “viewpoint-based funding decisions can be sustained” where the government uses “private speakers to transmit information pertaining to its own program” ); Rust v. Sullivan, 500 U.S. 173, 193 (1991) (holding that the government does not discriminate on the basis of viewpoint when “it has merely chosen to fund one activity to the exclusion of” another).

10

See Amdt1.7.8.2 Government Speech and Government as Speaker; Amdt1.7.13.6 Selective Funding Arrangements; Amdt1.7.13.7 Government’s Message Versus Private Speakers.

11

See Pac. Gas & Elec. Co. v. Pub. Utils. Com., 475 U.S. 1, 12 (1986) (plurality opinion) (concluding that an agency order requiring a regulated utility company to include a message from an opposing organization in its billing envelopes discriminated on the basis of viewpoint and violated the First Amendment); Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that the State of New Hampshire could not constitutionally punish the respondents for covering up the state motto “Live Free or Die,” to which they objected on religious grounds, on their vehicles’ license plates). See Amdt1.7.12.1 Overview of Compelled Speech.

12

See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (holding that the “forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints” ); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, 515 U.S. 557, 581 (1995) (reasoning that the government may not “compel” a speaker “to alter [its] message by including one more acceptable to others” ). See Amdt1.7.12.1 Overview of Compelled Speech.

13

See, e.g., United States v. United Foods, 533 U.S. 405, 416 (2001) (holding that compelling handlers of fresh mushrooms to subsidize generic advertising for that product when some handlers objected to the views expressed in those advertisements violated the First Amendment); Bd. of Regents v. Southworth, 529 U.S. 217, 233 (2000) (holding that “[w]hen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others” ). See Amdt1.7.12.1 Overview of Compelled Speech and Amdt1.7.12.3 Compelled Subsidization.

14

See Amdt1.7.4.5 Viewpoint Neutrality in Forum Analysis.