Viewpoint Discrimination in Facially Neutral Laws

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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.

A law can discriminate on the basis of viewpoint even if it is viewpoint-neutral on its face. In assessing whether a facially neutral law nevertheless discriminates on the basis of viewpoint, the Supreme Court has asked whether the law, in its “design” or “operation,” favors or disfavors a particular point of view.1

With regard to discriminatory design, the Court appears to distinguish between a law intended to or crafted to suppress a particular viewpoint and a law advanced or supported by a group with a particular viewpoint. According to the Court, “facially neutral and valid justifications” cannot save a law “that is in fact based on the desire to suppress a particular point of view.” 2 A law is not viewpoint-based, however, “simply because its enactment was motivated by the conduct of the partisans on one side of a debate.” 3 Further, while the Supreme Court has examined the general purposes of a statute to assess viewpoint neutrality in some cases,4 the Court has declined to examine the motivations of particular legislators or regulators in other cases.5

Various decisions of the Court suggest at least three indicators that a law may have been designed to suppress a particular viewpoint. First, a law that singles out particular speakers may be aimed at restricting certain content or certain viewpoints.6 For example, in Sorrell v. IMS Health, Inc., the Court held unconstitutional a law limiting who could access certain information about prescriptions and for what purposes.7 In addition to being content-based on its face, the Court explained, the law authorized “actual viewpoint discrimination” in practice.8 Formal legislative findings showed that “the law’s express purpose and practical effect [were] to diminish the effectiveness of marketing by manufacturers of brand-name drugs.” 9 In other words, the Court concluded, the law targeted specific speakers in order to target their messages.10 Thus, the law, while viewpoint-neutral on its face, was impermissibly “aimed at a particular viewpoint.” 11

Second—and related to speaker-based distinctions—a law that contains numerous exemptions may have the impermissible effect of restricting the speech of individuals or entities with a certain point of view. Exceptions and exemptions are not necessarily viewpoint-based: a law that regulates speech may include certain exemptions to avoid undermining the government’s purpose or restricting more speech than is necessary. For example, in a 2014 case, the Court concluded that there was “nothing inherently suspect” in exempting abortion clinic employees from a law that otherwise restricted the zones in which persons could speak outside abortion clinics, because of the need to allow clinic employees “to do their jobs.” 12 Because exemptions can introduce content or viewpoint-based distinctions,13 however, a law that is “wildly underinclusive” may signal that the law was designed to “disfavor[ ] a particular speaker or viewpoint.” 14

Third, a law that restricts only a particular form of expression may be aimed at suppressing a particular viewpoint. For example, Tinker v. Des Moines Independent Community School District arose from the suspension of three public high school students for violating a school policy prohibiting wearing armbands to school.15 School officials had adopted the policy after learning that a group of students planned to wear black armbands to school as a symbol of opposition to the Vietnam War.16 The Supreme Court held that the public school’s denial of this “form of expression” violated the First Amendment.17 Although schools have some leeway to restrict student expression that might reasonably lead to “substantial disruption of or material interference with school activities,” 18 there was no indication that such disturbances would take place under the circumstances.19 Instead, the Court observed, the school adopted the policy in anticipation of this “particular opinion” and prohibited this “particular symbol” but no other political symbols.20 A public school cannot restrict student speech, the Court explained, based on a “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” 21

In addition to the design of a law, a claim of viewpoint discrimination may be based on how the law operates in practice. A facially neutral law may be viewpoint-based if, in operation, it restricts or promotes a particular viewpoint.22 Here again the Court has drawn some distinctions. Government action is not automatically viewpoint-based simply because it affects groups with opposing viewpoints unequally.23 However, a law that invites discriminatory enforcement may violate the principle of viewpoint-neutrality.24 The Court has held, for example, that a licensing law is vulnerable to a First Amendment challenge if it “gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” 25

Even if a law does not discriminate on the basis of viewpoint on its face, in its design, or in its operation, discriminatory enforcement of that law may still violate the First Amendment because enforcement involves government action subject to the First Amendment.26 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which the Court ultimately decided on free exercise rather than free speech grounds, is instructive on this point.27 In that case, a bakery owner was charged with violating the state’s antidiscrimination law after refusing to make a cake for a same-sex couple’s wedding.28 The Court’s decision focused not on the validity of the antidiscrimination law, but rather on its application to the bakery owner. In the record, the Court found evidence of “a clear and impermissible hostility toward the sincere religious beliefs that motivated [the baker’s] objection.” 29 The offending statements, the Court held, “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” 30

1: Turner Broad. Sys. v. FCC, 512 U.S. 622, 647 (1994).
2: Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 812 (1985) (holding that the federal government’s decision to exclude advocacy groups from a charity drive aimed at federal employees was reasonable in light of the purposes of the charity drive, but allowing the respondent organization to argue that the decision was a pretext for viewpoint discrimination on remand).
3: Hill v. Colorado, 530 U.S. 703, 724 (2000) (explaining that enacting a law “in response to the activities of antiabortion protesters” did not render that law viewpoint-based).
4: E.g., Turner Broad. Sys., 512 U.S. at 646.
5: E.g., United States v. O’Brien, 391 U.S. 367, 383–84 (1968).
6: See Citizens United v. FEC, 558 U.S. 310, 340, 353–55 (2010) (opining that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content” ). Court-ordered injunctions, which necessarily apply to particular litigants (and thus particular speakers), present different considerations than a generally-applicable law that targets particular speakers. In Madsen v. Women’s Health Ctr., the Court held that an injunction against a group of anti-abortion protestors was not impermissibly viewpoint-based because it was based on the group’s “past actions,” not “the contents of [their] message.” 512 U.S. 753, 762–63 (1994).
7: 564 U.S. 552, 579–80 (2011).
8: Id. at 565.
9: Id.
10: Id.
11: Id.
12: McCullen v. Coakley, 573 U.S. 464, 483 (2014). For other reasons, the Court ultimately held that the law violated the First Amendment because it “burden[ed] substantially more speech than necessary to achieve” the government’s interests. Id. at 490.
13: E.g., Barr v. Am. Ass’n of Pol. Consultants, Inc., No. 19-631, slip op. at 9 (U.S. July 6, 2020) (plurality opinion).
14: Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 802 (2011). See Nat’l Inst. of Family and Life Advocates v. Becerra, No. 16-1140, slip op. at 6 n.2, 15 (U.S. June 26, 2018) (expressing reservations about a law’s underinclusivity because of the scope of its exemptions, but declining to decide whether the law was viewpoint-based because it violated the First Amendment on other grounds).
15: 393 U.S. 503, 504 (1969).
16: Id.
17: Id. at 514.
18: Id. See Amdt1.7.8.3 School Free Speech and Government as Educator.
19: Tinker, 393 U.S. at 514.
20: Id. at 510.
21: Id. at 509; see also Healy v. James, 408 U.S. 169, 187 (1972) (providing that a state college may not deny official recognition to a student group based on “mere disagreement” with the group’s philosophy).
22: Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011).
23: In Wood v. Moss, the Court held that Secret Service agents had not violated a clearly established First Amendment principle by separating protestors and supporters of the President at an impromptu dinner stop. 572 U.S. 744, 748 (2014). The Court suggested that the agents could not treat those groups differently solely based on their respective viewpoints. Id. at 761–62. The record showed, however, that the “because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.” Id. at 762.
24: See Amdt1.7.4.5 Viewpoint Neutrality in Forum Analysis.
25: Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759, 772 (1988) (holding unconstitutional parts of a city ordinance “giving the mayor unfettered discretion to deny a permit application and unbounded authority to condition the permit on any additional terms” the mayor deemed necessary).
26: See, e.g., Cohen v. California, 403 U.S. 15, 18, 26 (1971) (overturning a conviction that was based, not on conduct prohibited by the statute, but on the offensiveness of the defendant’s speech).
27: See No. 16-111, slip op. at 1, 3–4 (U.S. June 4, 2018). See Amdt1.4.4 Laws that Discriminate Against Religious Practice.
28: No. 16-111, slip op. at 1, 4 (U.S. June 4, 2018).
29: Id. at 12.
30: Id. at 16 (emphasis added). The Court cited both free speech and free exercise cases for this principle, but decided the case solely on free exercise grounds. Id. at 16–17.