Content-based restrictions regulate speech based on its subject matter or viewpoint.
|“||A content-based speech restriction is one that regulates 'speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.'"||”|
These restrictions seek to “suppress, disadvantage, or impose differential burdens upon speech because of its content.” Justice Holmes, in one of his most famous opinions, wrote:
|“||The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used . . . create a clear and present danger. . . .||”|
In its current formulation of this principle, the Supreme Court held that “advocacy of the use of force or of law violation” is protected unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Similarly, the Court held that a statute prohibiting threats against the life of the President could be applied only against speech that constitutes a “true threat,” and not against mere “political hyperbole.”
In cases of content-based restrictions of speech other than advocacy or threats, such regulations are presumptively invalid. The Supreme Court generally has applies the “strict scrutiny” standard, which means that it will uphold a content-based restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.”
Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from publishing the name of a rape victim, lawfully obtained. This is because there ordinarily is no compelling governmental interest in protecting a rape victim’s privacy.
By contrast, “[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Similarly, the government may proscribe “‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Here the Court was referring to utterances that constitute “epithets or personal abuse” that “are no essential part of any exposition of ideas,” as opposed to, for example, flag burning.
The operative distinctions between a court’s review of a content-based restrictions and a content-neutral restrictions is that in the former case, the government must meet the “compelling interest” and “least restrictive means” standards, while in the latter situation the government need only prove a “significant interest” and the availability of “ample alternative channels for communication of the information.”
Constitutional scholars generally agree that governmental regulation of media products with violent content, “whether in the form of banning, rating, or channeling of violent media content, necessarily requires the government to make a judgment as to what content lies within the ambit of the statute and what content does not,” thereby triggering content-based strict scrutiny review.
- Galena v. Leone, 638 F.3d 186, 199 (3d Cir. 2011) (full-text).
- Turner Broad. Sys. v. Federal Comms. Comm’n, 512 U.S. 622, 642 (1994) (full-text).
- Schenck v. United States, 249 U.S. 47, 52 (1919) (full-text).
- Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (full-text). See also Stewart v. McCoy, 537 U.S. 993 (2002) (full-text) (Justice Stevens’ statement accompanying denial of certiorari).
- Watts v. United States, 394 U.S. 705, 708 (1969) (full-text). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (full-text); Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc) (full-text), cert. denied, 539 U.S. 958 (2003) (the “Nuremberg Files” case); Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).
- R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (full-text).
- Sable Comms. of Cal., Inc. v. Federal Comms. Comm'n, 492 U.S. 115, 126 (1989) (full-text) ("The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest."); Reno v. ACLU, 521 U.S. 844, 876-77 (1997) (full-text) (finding relevant the fact that a reasonably effective method by which parents could prevent children from accessing internet material which parents believed to be inappropriate "will soon be widely available"). The Court does not apply strict scrutiny to another type of content-based restrictions — restrictions on commercial speech.
- The Florida Star v. B.J.F., 491 U.S. 524 (1989) (full-text). The Court left open the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper, 532 U.S. 514 (2001) (full-text), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted communications (in this case a cell phone conversation) violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue.
- However, the Court did “not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be . . . overwhelmingly necessary to advance” a compelling state interest. Id. at 537.
- Near v. Minnesota, 283 U.S. 697, 716 (1931) (full-text).
- Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (full-text). Campus “hate speech” prohibitions at public colleges (the First Amendment does not apply to private colleges) are apparently unconstitutional, even as applied to fighting words, if they cover only certain types of hate speech, such as speech based on racial hatred. This conclusion is based on the cross-burning case. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (full-text).
- See United States v. Playboy Entertainment Grp., 529 U.S. 803 (2000) (full-text); see also The [New York Bar Association] Committee on Comms. & Media L., "Violence in the Media: A Position Paper," 52 The Record 310 (Apr. 1997).