The three previous sections considered primarily but not exclusively incidental restraints on expression as a result of governmental regulatory measures aimed at goals other than control of the content of expression; this section considers the permissibility of governmental measures that directly concern the content of expression.942 As a general matter, government may not regulate speech “because of its message, its ideas, its subject matter, or its content.”943 Invalid content regulation includes not only restrictions on particular viewpoints, but also prohibitions on public discussion of an entire topic.944 Although, as discussed below, there are certain categories of speech that fall outside of First Amendment scrutiny, such as obscenity or defamation, the Court is generally reluctant to add new exceptions.137
942 The distinction was sharply drawn by Justice Harlan in Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961): “Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand certain forms of speech, or speech in certain contexts, have been considered outside the scope of constitutional protection.... On the other hand, general regulatory statutes not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendments forbade Congress or the states to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved.”
943 Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12 (1975); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v. Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S. 490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981); Regan v. Time, Inc., 468 U.S. 641 (1984).
944 Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (citing Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 537 (1980)).
137 See United States v. Stevens, 130 S. Ct. 1577 (2010) (striking down a federal law that makes it a felony to knowingly create, sell, or possess a depiction of animal cruelty). In Stevens, the Court suggested that while new categories of unprotected speech may be identified in the future, such categories as already exist have long-established roots in First Amendment law. For instance, child pornography, which appears to be a relatively recently identified category of unprotected speech, see New York v. Ferber, 458 U.S. 747 (1982), is "intrinsically related" to the sexual abuse of children, and thus falls into the previously existing category of speech facilitating criminal activity. Id. at 8.
Originally the Court took a “two-tier” approach to content-oriented regulation of expression. Under the “definitional balancing” of this approach, some forms of expression are protected by the First Amendment and certain categories of expression are not entitled to protection. This doctrine traces to Chaplinsky v. New Hampshire,945 in which the Court opined that “certain well-defined and narrowly limited classes of speech . . . are no essential part of any exposition of ideas, and are of such slight social value as a step to truth” that government may prevent those utterances and punish those uttering them without raising any constitutional problems. If speech fell within the Chaplinsky categories, it was unprotected, regardless of its effect; if it did not, it was covered by the First Amendment and it was protected unless the restraint was justified by some test relating to harm, such as clear and present danger or a balancing of presumptively protected expression against a compelling governmental interest.
For several decades, the decided cases reflected a fairly consistent and sustained march by the Court to the elimination of, or a severe narrowing of, the “two-tier” doctrine. The result was protection of much expression that hitherto would have been held absolutely unprotected (e.g., seditious speech and seditious libel, fighting words, defamation, and obscenity). More recently, the march has been deflected by a shift in position with respect to obscenity and by the creation of a new category of non-obscene child pornography. But in the course of this movement, differences surfaced among the Justices on the permissibility of regulation based on content and the interrelated issue of a hierarchy of speech values, according to which some forms of expression, while protected, may be more readily subject to official regulation and perhaps suppression than other protected expression. These differences were compounded in cases in which First Amendment expression values came into conflict with other values, either constitutionally protected values such as the right to fair trials in criminal cases, or societally valued interests such as those in privacy, reputation, and the protection from disclosure of certain kinds of information.
945 315 U.S. 568, 571-72 (1942).
Attempts to work out these differences are elaborated in the following pages, but the effort to formulate a doctrine of permissible content regulation within categories of protected expression necessitates a brief treatment. It remains standard doctrine that it is impermissible to posit regulation of protected expression upon its content.946 But in recent Terms, Justice Stevens has articulated a theory that would permit some governmental restraint based upon content. In Justice Stevens’ view, there is a hierarchy of speech; where the category of speech at issue fits into that hierarchy determines the appropriate level of protection under the First Amendment. A category’s place on the continuum is guided by Chaplinsky’s formulation of whether it is “an essential part of any exposition of ideas” and what its “social value as a step to truth” is.947 Thus, offensive but nonobscene words and portrayals dealing with sex and excretion may be regulated when the expression plays no role or a minimal role in the exposition of ideas.948 “Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen’s right to see ’specified Sexual Activities’ exhibited in the theaters of our choice.”949
While a majority of the Court has not joined in approving Justice Stevens’ theory,950 the Court has in some contexts of covered expression approved restrictions based on content,951 and in still other areas, such as privacy, it has implied that some content-based restraints on expression would be approved.952 Moreover, the Court in recent years has emphasized numerous times the role of the First Amendment in facilitating, indeed making possible, political dialogue and the operation of democratic institutions.953 While this emphasis may be read as being premised on a hierarchical theory of the worthiness of political speech and the subordinate position of less worthy forms of speech, it is more likely to be merely a celebration of the most worthy role speech plays, and not a suggestion that other roles and other kinds of discourses are relevant in determining the measure of protection enjoyed under the First Amendment.954
946 See, e.g., Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991).
947 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
948 Young v. American Mini Theatres, 427 U.S. 50, 63-73 (1976) (plurality opinion); Smith v. United States, 431 U.S. 291, 317-19 (1977) (Justice Stevens dissenting); Carey v. Population Services Int., 431 U.S. 678, 716 (1977) (Justice Stevens concurring in part and concurring in the judgment); FCC v. Pacifica Found., 438 U.S. 726, 744-48 (1978) (plurality opinion); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 80, 83 (1981) (Justice Stevens concurring in judgment); New York v. Ferber, 458 U.S. 747, 781 (1982) (Justice Stevens concurring in judgment); R. A. V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Justice Stevens concurring in the judgment).
949 Young v. American Mini Theatres, 427 U.S. 50, 70 (1976) (plurality opinion).
950 In New York v. Ferber, 458 U.S. 747, 763 (1982), a majority of the Court joined an opinion quoting much of Justice Stevens’ language in these cases, but the opinion rather clearly adopts the proposition that the disputed expression, child pornography, is not covered by the First Amendment, not that it is covered but subject to suppression because of its content. Id. at 764. And see id. at 781 (Justice Stevens concurring in judgment).
951 E.g., commercial speech, which is covered by the First Amendment but is less protected than other speech, is subject to content-based regulation. Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 568-69 (1980). See also Rowan v. Post Office Dep't, 397 U.S. 728 (1970) (sexually-oriented, not necessarily obscene mailings); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nonobscene, erotic dancing).
952 E.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). See also Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).
953 E.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-77, 781- 83 (1978); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299-300 (1982).
954 E.g., First National Bank v. Bellotti, 435 U.S. 765, 783 (1978); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S.C. 530, 534 n.2 (1980). Compare Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (”nude dancing . . . falls only within the outer ambit of the First Amendment’s protection”) with United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000) (”[w]e cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech [”signal bleed” of sexually oriented cable programming] is not very important”).
That there can be a permissible content regulation within a category of protected expression was questioned in theory, and rejected in application, in Hustler Magazine, Inc. v. Falwell.955 In Falwell the Court refused to recognize a distinction between permissible political satire and “outrageous” parodies “doubtless gross and repugnant in the eyes of most.”956 “If it were possible by laying down a principled standard to separate the one from the other,” the Court suggested, “public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description ‘outrageous’ does not supply one.”957 Falwell can also be read as consistent with the hierarchical theory of interpretation; the offensive advertisement parody was protected as within “the world of debate about public affairs,” and was not “governed by any exception to . . . general First Amendment principles.”958
So too, there can be impermissible content regulation within a category of otherwise unprotected expression. In R.A.V. v. City of St. Paul,959 the Court struck down a hate crimes ordinance construed by the state courts to apply only to use of “fighting words.” The difficulty, the Court found, was that the ordinance made a further content discrimination, proscribing only those fighting words that would arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. This amounted to “special prohibitions on those speakers who express views on disfavored subjects.”960 The fact that government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas “may be made the vehicles for content discrimination unrelated to their distinctly proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”961
955 485 U.S. 46 (1988).
956 485 U.S. at 55, 50.
957 485 U.S. at 55.
958 485 U.S. at 53, 56.
959 505 U.S. 377 (1992).
960 505 U.S. at 391.
961 505 U.S. at 383-84 (emphasis in original).
Content regulation of protected expression is measured by a compelling interest test derived from equal protection analysis: government “must show that its regulation is necessary to serve a compelling [governmental] interest and is narrowly drawn to achieve that end.”962 Application of this test ordinarily results in invalidation of the regulation.963 Objecting to the balancing approach inherent in this test because it “might be read as a concession that States may censor speech whenever they believe there is a compelling justification for doing so,” Justice Kennedy argues instead for a rule of per seinvalidity.964 But compelling interest analysis can still be useful, the Justice suggests, in determining whether a regulation is actually content-based or instead is content-neutral; in those cases in which the government tenders “a plausible justification unrelated to the suppression of expression,” application of the compelling interest test may help to determine “whether the asserted justification is in fact an accurate description of the purpose and effect of the law.”965
962 Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987); Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105, 118 (1991).
963 But see Burson v. Freeman, 504 U.S. 191 (1992) (state law prohibiting the solicitation of votes and the display or distribution of campaign literature within 100 feet of a polling place upheld as applied to the traditional public forum of streets and sidewalks). The Burson plurality phrased the test not in terms of whether the law was “narrowly tailored,” but instead in terms of whether the law was “necessary” to serve compelling state interests. Id. at 199, 206.
964 Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105, 124-25 (1991) (concurring).
965 Burson v. Freeman, 504 U.S. 191, 213 (1992) (concurring).
Last modified: June 9, 2014