First Amendment — Free Speech Clause: Content-Based and Content-Neutral Regulation of Speech

Amdt1.7.3.1 Overview of Content-Based and Content-Neutral Regulation of Speech

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.²⁰As 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 scrurtiny, 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

Amdt1.7.3.2 Development of a Judicial Approach to Content-Based Speech Laws

As explained in Amdt1.7.3.1 Overview of Content-Based and Content-Neutral Regulation of Speech, laws regulating protected speech on the basis of its content are generally subject to strict judicial scrutiny.¹ As the Supreme Court has acknowledged, however, deciding whether a particular law “is content based or content neutral is not always a simple task.”² When confronted with the question, the Court has examined a law’s text (that is, the face of the law) and considered arguments about the law’s justification, purpose, design, and operation.

Whether a content-based distinction on the face of the law rendered that law presumptively invalid has changed over time, with earlier cases lacking a consistent approach.³ For example, in the 1980s and early 1990s, the Court sometimes considered laws that drew content-based distinctions on their face to be content neutral (and subject to a form of intermediate scrutiny) so long as they were supported by a content-neutral justification.⁴ This approach started to shift in the mid-1990s, as the Court began to clarify that a content-neutral purpose cannot “save a law which, on its face, discriminates based on content.”⁵

In its 2015 decision in Reed v. Town of Gilbert, the Court squarely held that a facially content-based law is subject to strict scrutiny “regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”⁶ Thus, under the approach set out in Reed, a law may be content based, and thus presumptively unconstitutional, if it draws content-based distinctions on its face or if it reflects a discriminatory purpose.⁷

Amdt1.7.3.3 Laws Making Facial Content-Based Distinctions Regarding Speech

The Supreme Court has recognized that the “First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.”¹ In 1980, the Court struck down a state order prohibiting private utility companies from including inserts in their billing envelopes discussing “controversial issues of public policy.”² The Court reasoned that the order imposed an impermissible content-based restriction even though it did “not favor either side of a political controversy,” reaffirming the general rule that the government may not regulate speech based on its subject matter.³ The Court explained that to “allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.”⁴

Drawing on these precedents, the Court set out the modern test for determining whether a law is facially content based in two decisions involving local sign ordinances. In its 2015 decision in Reed v. Town of Gilbert, the Court held that a law is content based “on its face” if it “draws distinctions based on the message a speaker conveys.”⁵ The Court explained that “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.”⁶ The ordinance at issue in Reed fell into the former category because it “single[d] out specific subject matter for differential treatment” by, for example, placing more onerous restrictions on “political” signs than on “ideological” signs.⁷

Other examples of laws that the Court has determined to be facially content based include a federal statute criminalizing the commercial sale of “depictions of animal cruelty,”⁸ a federal statute requiring cable television operators to scramble or restrict the daytime transmission of channels “primarily dedicated to sexually-oriented programming,”⁹ a federal statute restricting “indecent” and “patently offensive” internet communications,¹⁰ and a state law imposing a sales tax on general interest magazines but exempting religious, trade, and sports magazines.¹¹

Although Reed clarified the meaning of “content based” to some extent, courts continued to grapple with the question of whether a law is content based—and thus presumptively unconstitutional—whenever the government must read the speech at issue to determine the law’s applicability or the speaker’s compliance with the law.¹² In its 2022 decision in City of Austin v. Reagan National Advertising of Austin, LLC, the Court rejected that formulation of the rule as “too extreme an interpretation of this Court’s precedent.”¹³ The case involved a city ordinance restricting “off-premises signs”—signs advertising or directing readers to businesses or events at another location, but not restricting signs advertising activities on the same premises. In practice, determining whether the restrictions applied required reading the sign to identify whether it advertised a business or event on or off of the premises where the sign was posted. In the majority’s view, that ordinance was content neutral because it did not “single out any topic or subject matter for differential treatment.”¹⁴ Instead, the ordinance distinguished signs based on a content-neutral factor—location—rather than their “substantive message.”¹⁵

City of Austin also addressed the statement in Reed that laws that distinguish speech based on its “function or purpose” are content based.¹⁶ The Court opined that not every “classification that considers function or purpose” is content based.¹⁷ Instead, the Court suggested that defining regulated speech by its function is only problematic when function is used as a “proxy” for regulating content, such as when a legislature attempts to regulate political signs by describing regulated signs as those “designed to influence the outcome of an election.”¹⁸

As with laws that restrict a discrete category of speech, laws that exempt one category of speech from a broader speech restriction could also create a facial content-based distinction.¹⁹ In Regan v. Time, Inc., the Court evaluated a statutory exception to a long-standing ban on photographic reproductions of currency,²⁰ allowing certain publishers to use these photographs for “educational, historical, or newsworthy purposes.”²¹ The Court held that the purpose provision was “constitutionally infirm” because whether a photograph is “newsworthy” or “educational” requires the government to make a content-based judgment.²²

The Court again struck down a content-based exception in Barr v. American Association of Political Consultants.²³ That case concerned a 1991 federal law that, among other things, prohibited automated calls to cell phones, also known as “robocalls.”²⁴ Congress had added a provision in 2015 that exempted calls made to collect debt owed to the federal government, such as student loan debt, from the robocall restriction.²⁵ Five Justices held that the robocall restriction was impermissibly content based,²⁶ with a different majority concluding that the appropriate remedy was to “sever” the government-debt exception.²⁷ A plurality of the Court wrote that “[b]ecause the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”²⁸ Thus, even though Congress had removed a restriction on speech when it added the government-debt exception, that 2015 amendment created a “discriminatory exception” that resulted in “unequal treatment” of government-debt collection speech versus speech on other topics.²⁹

Amdt1.7.3.4 Laws Regulating Speech with a Content-Discriminatory Purpose

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

Amdt1.7.3.5 Laws Making Speaker-Based Distinctions in Regulating Speech

The Supreme Court has recognized that the “First Amendment protects speech and speaker, and the ideas that flow from each.”¹ While “a differential burden on speakers is insufficient by itself to raise First Amendment concerns,”² laws that are “designed or intended to suppress or restrict the expression of specific speakers” because of their ideas violate the First Amendment.³ In terms of First Amendment analysis, this means that, unlike laws that regulate speech based on subject matter, topic, or viewpoint, laws that distinguish among different speakers are not necessarily deemed content based or presumptively unconstitutional. For example, a regulation distinguishing between cable operators and broadcasters, the Court observed in a 1994 case, differentiated among “speakers in the television programming market” based on “the manner in which [they] transmit their messages to viewers” rather than their content.⁴ The Court explained that such distinctions are “not presumed invalid” as long as they are not “a subtle means of exercising a content preference.”⁵

Speaker-based distinctions can, however, invite heightened scrutiny in some circumstances. As previously noted, speaker-based distinctions raise the specter of content-based discrimination. The Supreme Court has observed that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content.”⁶ The law in Sorrell v. IMS Health, Inc., for example, prohibited pharmaceutical companies from using pharmacy records revealing physicians’ individual prescribing practices for marketing purposes without the prescribers’ consent.⁷ The law did not prohibit other entities from using the records for non-marketing purposes, thus allowing, for example, educational institutions to use the regulated records for research purposes.⁸ The Court observed that in addition to imposing content-based restrictions on how the information was used, the law targeted pharmaceutical companies for disfavored treatment, which contributed to the content-based nature of the law.⁹

Even apart from a desire to control the content of speech, the government may violate the First Amendment if it singles out “disfavored speakers” for speech restrictions.¹⁰ In Citizens United v. FEC, for example, the Court held that Congress may not prohibit political speech in the form of independent expenditures because of a speaker’s corporate identity.¹¹

Thus, speech restrictions that apply to some speakers but not others may trigger heightened scrutiny, especially where the law contains other, facial distinctions based on the message conveyed, or reflects a content-discriminatory purpose.¹²

Amdt1.7.3.6 Content-Based and Compelled Speech

The Supreme Court has suggested that laws that compel speech, such as labeling or disclosure requirements, are typically content based because they alter the content of the speaker’s message.¹ For example, in a 2018 case, the Court considered a state law that required licensed pregnancy resource centers to post a notice that the state provided free or low-cost access to certain services, including abortion.² The Court held that this requirement regulated speech based on its content.³ The Court reasoned that by requiring the petitioners (pregnancy resource centers that opposed abortion) “to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option—the licensed notice plainly ‘alters the content’ of petitioners’ speech.”⁴ The Court concluded that heightened scrutiny should apply,⁵ because the law required the petitioners to adopt a “government-drafted script” about a service—abortion—that the petitioners opposed.⁶

Thus, laws that compel private speakers to make a particular statement or to include certain information in their own speech are likely content based.⁷ Whether such requirements would receive strict scrutiny, intermediate scrutiny, or a lesser degree of scrutiny, depends, among other things, on whether they involve commercial speech and concern the speaker’s own product or services.⁸

Amdt1.7.3.7 Content-Neutral Laws Burdening Speech

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.”¹ 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.’”² 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.’”³

A series of cases allowing speech to be regulated due to its “secondary effects” is related to these content-neutral standards.⁴ In Young v. American Mini Theater, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that adult theaters showing motion pictures that depicted specified sexual activities or specified anatomical areas could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.⁵ The Court endorsed this approach in Renton v. Playtime Theatres, rejecting a constitutional challenge to a zoning ordinance restricting the locations of adult theaters after concluding that although the ordinance targeted businesses selling sexually explicit materials, the law was content-neutral because it was justified by studies showing adult theaters produced undesirable secondary effects, rather than being justified by reference to the content of the regulated speech.⁶ By contrast, for example, the Court rejected one city’s argument that it could prohibit as a nuisance “any movie containing nudity which is visible from a public place.”⁷ Concluding that the ordinance was not well tailored to the city’s stated goals of protecting the privacy interests of passers-by or protecting children, the Court held instead that the law was an unconstitutional content-based regulation.⁸