Cecily Zamora
The First Amendment of the U.S. Constitution protects the right to free speech, prohibiting Congress from enacting laws that restrict it. However, the Supreme Court has interpreted this right to extend beyond Congress, prohibiting any governmental action that suppresses ideas, messaging, and subject matter. This includes laws that are viewpoint-neutral on their face but may discriminate in practice. In such cases, the Court assesses whether the law, in its design or operation, favors or disfavors a particular viewpoint. This principle of viewpoint neutrality also applies to public institutions, the enforcement of public laws, and other government actions. An example of this is when the Court held that a licensing law could be challenged under the First Amendment if it gave officials substantial power to discriminate based on the content or viewpoint of speech.
| Characteristics | Values |
|---|---|
| A facially neutral law may be viewpoint-based if it restricts or promotes a particular viewpoint in operation | Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011) |
| A law that invites discriminatory enforcement may violate the principle of viewpoint neutrality | Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759, 772 (1988) |
| The Supreme Court interprets the First Amendment right to free speech as prohibiting any governmental action that restricts freedom of speech | |
| Content-based governmental restrictions are generally subject to a higher level of scrutiny in the courts than content-neutral ones | |
| Content-based regulation, including viewpoint discrimination, generally deserves higher scrutiny | |
| State actions restricting free speech can include laws at any level, less official policies, rules, enforcement measures, and prosecution actions | Cohen v. California |
| Viewpoint discrimination is a kind of content-based restriction that targets particular views of subject matter or ideologies | R.A.V. v. City of St. Paul |
| A government regulation of speech is content-based if the regulation draws distinctions based on the message a speaker conveys | Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) |
| Content-neutral "speech regulations are those that are justified without reference to the content of the regulated speech" | Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) |
| A law generally regulating speech that exempts certain speech on the basis of its content may also raise constitutional concerns | Barr v. American Ass'n of Political Consultants, 140 S. Ct. 2335 (2020) |
| The principle of viewpoint neutrality also extends to the policies of public institutions, the enforcement of public laws, and other types of government actions | Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) |
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What You'll Learn
Viewpoint-neutral laws and viewpoint discrimination
The First Amendment of the U.S. Constitution states that "Congress shall make no law...abridging the freedom of speech". This prohibition on Congressional lawmaking has been interpreted by the Supreme Court to apply to any governmental action that restricts freedom of speech.
Viewpoint discrimination is a form of content discrimination, where the government restricts speech on a given subject matter. When the government engages in viewpoint discrimination, it singles out a particular opinion or perspective on a subject matter for treatment unlike that given to other viewpoints. For example, in Sorrell v. IMS Health Inc., the Court held that a law limiting who could access certain information about prescriptions and for what purposes was unconstitutional. The law was viewpoint-neutral on its face, but in practice, it restricted access to information to target specific speakers and their messages.
A law can be viewpoint-neutral on its face but still discriminate on the basis of viewpoint in its design or operation. In Turner Broad. Sys. v. FCC, the Supreme Court assessed whether a facially neutral law discriminated on the basis of viewpoint by examining its "design" or "operation". The Court distinguished between a law intended to suppress a particular viewpoint and a law advanced or supported by a group with a particular viewpoint. Facially neutral justifications cannot save a law that is based on the desire to suppress a particular viewpoint.
In practice, a facially neutral law may be viewpoint-based if it restricts or promotes a particular viewpoint. In Wood v. Moss, the Court held that Secret Service agents did not violate the First Amendment by separating protestors and supporters of the President at an impromptu dinner stop. While government action is not automatically viewpoint-based because it affects groups with opposing viewpoints unequally, a law that invites discriminatory enforcement may violate the principle of viewpoint neutrality. For example, in Lakewood v. Plain Dealer Publishing Co., the Court held that a licensing law was vulnerable to a First Amendment challenge as it gave a government official substantial power to discriminate based on the content or viewpoint of speech.
In conclusion, while the First Amendment protects freedom of speech, viewpoint-neutral laws and viewpoint discrimination are complex issues that require careful consideration of a law's design, operation, and enforcement.
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Facially neutral laws and the Supreme Court
The First Amendment to the U.S. Constitution guarantees freedom of speech and prohibits Congress from enacting laws that restrict this right. However, the Supreme Court has interpreted this to mean that no governmental action can restrict freedom of speech. This freedom is not absolute, and the Supreme Court has set legal standards for determining whether government action restricting speech is constitutional.
The Supreme Court has established that content-based regulation, including viewpoint discrimination, generally receives higher scrutiny than content-neutral restrictions. A law can be facially neutral but still discriminate on the basis of viewpoint. In such cases, the Supreme Court assesses whether the law, in its design or operation, favours or disfavours a particular viewpoint.
In Turner Broad. Sys. v. FCC, the Court distinguished between a law intended to suppress a particular viewpoint and a law advanced or supported by a group with a particular viewpoint. The Court held that a facially neutral justification cannot validate a law that aims to suppress a specific viewpoint. Similarly, in Cornelius v. NAACP Legal Def. & Educ. Fund, the Court held that the federal government's decision to exclude advocacy groups from a charity drive aimed at federal employees was reasonable, but allowed the respondent to argue that the decision was a pretext for viewpoint discrimination.
In Sorrell v. IMS Health Inc., the Court found a law limiting access to certain prescription information to be unconstitutional due to its content-based nature and authorisation of "actual viewpoint discrimination" in practice. The Court has also held that laws that invite discriminatory enforcement may violate the principle of viewpoint neutrality. For example, in Lakewood v. Plain Dealer Publ'g Co., the Court ruled that a licensing law giving a government official substantial power to discriminate based on the content or viewpoint of speech was vulnerable to a First Amendment challenge.
In summary, the Supreme Court closely scrutinises facially neutral laws to ensure they do not discriminate on the basis of viewpoint in their design or operation. The Court distinguishes between laws intended to suppress a viewpoint and those supported by a group with a particular viewpoint, recognising that even facially neutral laws can result in viewpoint discrimination.
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Content-based and content-neutral restrictions
The First Amendment of the US Constitution protects the right to free speech, prohibiting the government from suppressing or forcing conformity with particular ideas or messages. This means that the government may not restrict private individuals' speech based on its content. Content-based and content-neutral restrictions are both subject to First Amendment scrutiny, but the tests applied differ. Content-based governmental restrictions are generally subject to a higher level of scrutiny in the courts than content-neutral ones.
A content-based law discriminates against speech based on the substance of what is communicated. Such laws are deemed presumptively unconstitutional and are subject to strict scrutiny, the highest form of judicial review. Examples of laws that the Supreme Court has designated as impermissibly content-based include a statute criminalizing indecent phone messages and a law banning signs critical of foreign governments outside embassies. In contrast, a content-neutral law applies without regard to its substance. Content-neutral laws generally must survive only intermediate scrutiny.
The Supreme Court has established that content-based regulation, including viewpoint discrimination, generally deserves higher scrutiny. Viewpoint discrimination is a kind of content-based restriction that targets particular views of subject matter or ideologies. A law banning all political speeches in a public park would be content-based, whereas a law banning only political speeches by members of a particular party would be viewpoint-based. While a law can be viewpoint-neutral on its face, it may still be viewpoint-based if, in operation, it restricts or promotes a particular viewpoint. For instance, in Sorrell v. IMS Health Inc., the Court held that a law limiting access to certain prescription information was unconstitutional as it authorized "actual viewpoint discrimination" in practice.
In summary, content-based and content-neutral restrictions are both subject to scrutiny under the First Amendment, but content-based restrictions are generally viewed more skeptically by the courts due to their potential to infringe on free speech rights.
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Viewpoint-based regulation of speech
The First Amendment right to free speech protects citizens from government suppression of ideas, messaging, and subject matter. It also prohibits the government from forcing citizens to adopt certain beliefs or ideas. Content-neutral and content-based restrictions on free speech are both subject to First Amendment analysis and scrutiny. However, content-based regulation, including viewpoint discrimination, generally receives higher scrutiny.
Content-based restrictions target an entire category or topic of speech, whereas viewpoint-based restrictions suppress one viewpoint on an issue while allowing others. For example, a regulation that restricted all speech pertaining to immigration would be a content-based regulation. However, a regulation that restricted only pro-immigration speech, while allowing anti-immigration speech, would be a viewpoint-based regulation.
A law can be viewpoint-discriminatory either on its face or as applied. A law that is content-based on its face is subject to strict scrutiny regardless of the government's motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech. Even if a regulation does not target content on its face, courts will analyze whether the regulation is content-based as applied. A regulation that does not target content on its face, can be justified without reference to content, and was not enacted due to disagreement with a certain message is likely to be deemed content-neutral.
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. 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."
In Sorrell v. IMS Health Inc., the Court held unconstitutional a law limiting who could access certain information about prescriptions and for what purposes. The law was content-based on its face and authorized "actual viewpoint discrimination" in practice. 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." Thus, the Court concluded that the law targeted specific speakers to target their messages.
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Government action and the First Amendment
The First Amendment of the United States Constitution, adopted in 1791 as part of the Bill of Rights, protects the right to freedom of religion and freedom of expression from government interference. It prohibits any laws that establish a national religion, impede the free exercise of religion, abridge the freedom of speech, infringe upon the freedom of the press, interfere with the right to peaceably assemble, or prohibit people from petitioning for a governmental redress of grievances. The First Amendment now covers actions by federal, state, and local governments, as well as all branches of government, including legislatures, courts, juries, and executive officials and agencies.
The First Amendment also applies to less official government policies, rules, enforcement measures, and prosecution actions. When a state action or restriction is challenged as an unconstitutional infringement of free speech, a key consideration is whether the restriction is content-based or content-neutral. Content-based governmental restrictions are generally subject to a higher level of scrutiny in the courts than content-neutral ones.
The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or incite violence, such as advocacy of illegal action, fighting words, commercial speech, and obscenity. However, viewpoint discrimination, a form of content-based restriction, is considered particularly offensive to First Amendment rights because it targets specific views, subject matters, or ideologies.
A law can be viewpoint-neutral on its face but still discriminate based on viewpoint in its design or operation. For example, in Sorrell v. IMS Health Inc., the Court held that a law limiting access to certain prescription information was unconstitutional because, despite being content-neutral, it authorized "actual viewpoint discrimination" in practice by targeting specific speakers and their messages.
In summary, government action and the First Amendment are closely intertwined, with the First Amendment prohibiting government interference in various aspects of freedom of expression and establishing important considerations for evaluating the constitutionality of government restrictions on speech.
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Frequently asked questions
Viewpoint discrimination is a form of content discrimination where the government targets particular views taken by speakers on a subject, rather than the subject matter itself.
Yes, a law can be discriminatory in design or in operation. A facially neutral law may be viewpoint-based if, in operation, it restricts or promotes a particular viewpoint.
In Matal v. Tam (2017), the U.S. Supreme Court ruled that a federal trademark law prohibiting disparaging marks violated the First Amendment as it constituted impermissible viewpoint discrimination.
In Madsen v. Women's Health Centre, 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."
The key question is whether the filming regulation discriminates based on "the topic discussed or the idea or message expressed."
