CONTENT UNDER PRESSURE.

• Author: Kozel, Randy J.
• Position: Freedom of speech

ABSTRACT

The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain acceptable across a host of situations.

The pervasiveness of content discrimination requires a reorientation of First Amendment doctrine. The core precept of expressive liberty under the U.S. Constitution is that the government may not punish speakers for their positions or perspectives. The cases reveal that so long as viewpoint neutrality prevails, content discrimination often poses no constitutional problem.

TABLE OF CONTENTS I. CONTENT NEUTRALITY AS IMPERATIVE II. CHALLENGING CONTENT SUPREMACY A. Forum Analysis B. Exceptions to Full Protection C. Secondary Effects D. Segmentation of Low-Value Speech III. CONTENT AND VIEWPOINT RECONSIDERED A. Content Discrimination as Smoke, Not Fire B. Viewpoint (Re)Defined 1. Religiosity 2. Offensiveness 3. Immorality IV. THE VIEWPOINT-CENTRIC FIRST AMENDMENT A. Demonstrating Viewpoint Centricity B. Recognizing Content as Proxy 98 C. Explaining the Ubiquity' of Content Discrimination D. Harmonizing Secondary Effects E. Distinguishing Government Speech F. Rationalizing First Amendment Theory V. MAKING THE TRANSITION FROM CONTENT TO VIEWPOINT CONCLUSION INTRODUCTION

The Supreme Court's 2021 Term was full of blockbusters. The Justices decided major cases involving abortion, (1) firearms, (2) state secrets, (3) and beyond. But the dispute that came before the Court on November 10 was of a decidedly different ilk. In an effort to preserve natural beauty and promote public safety, the City of Austin, Texas had enacted various restrictions on outdoor signage. (4) Among the restrictions was one that limited the digitization of signs. (5) Yet not all signs were relegated to the predigital era. They could be digitized--allowing for quicker, cheaper, and easier changes to their displayed messages--if they advertised happenings "on the premises where" they were located. (6) So, for example, a restaurant was free to digitize a sign in its own parking lot displaying its name and daily specials, but not a billboard ten miles down the road telling hungry drivers where to find it.

On some accounts, Austin's regulation was unconstitutional. The law discriminated against certain messages: namely, those promoting activities away from the premises where they occur. (7) The City, though, had an explanation for its approach. Austin had not discriminated against disfavored messages, but rather had acted to protect the public interest in safety and natural beauty while giving people more leeway to express themselves on their own property. (8)

When the dispute over Austin's law reached the Supreme Court, the key question became which of these stories best fit the facts. Had Austin punished disfavored messages? Or had it regulated in a neutral fashion, notwithstanding some incidental differences in terms of ability to digitize signs? After a wide-ranging oral argument, complete with hypothetical kale shops, coffee giveaways, and debates over the definition of "cheese," the situation was no clearer than when the opening buzzer had sounded. (9) Justice Breyer captured the spirit of the argument when he suggested to counsel that "maybe you can't explain" what makes a speech restriction discriminatory, in which case "I'll go back to my state of confusion." (10) An unassuming case about digital signs had turned into a conceptual quagmire. And when the Court issued its decision some five months later, uncertainty remained. The distinction between on-premises and off-premises signs was content neutral after all. (11) But the definition of content neutrality remained elusive. (12)

Underlying the Justices' examination of digital signs is a key conceptual distinction. Content-based speech restrictions are "presumptively unconstitutional." (13) A judge confronting such a restriction applies strict scrutiny, which in the realm of expressive liberty almost always spells doom for the law in question. (14) But content-neutral restrictions receive more favorable treatment in the courts. (15) Though such laws do not always survive, they have a fighting chance. (16) That explains the considerable attention directed at whether a speech restriction discriminates on the basis of content. If a law is content neutral, it might well survive. If a law is content based, it almost certainly will fail. (17)

The implications extend far beyond billboards. Restrictions that discriminate based on the content of speech are legion, covering everything from securities disclosures (18) to tax returns (19) to signs alerting motorists about hidden hazards. (20) Given the rarity with which speech restrictions survive strict scrutiny, the government's best chance in defending these laws is to establish that, despite their ostensible focus on the messages being transmitted, they actually operate in a content-neutral fashion. (21) Establishing that point is necessary to invoke the more forgiving, intermediate brand of scrutiny suited to content-neutral laws. (22) From the standpoint of the government defending a speech restriction, it's (usually) content neutral or bust.

Driving the focus on content discrimination are underlying concerns about government orthodoxy. Private actors can and do take peoples' opinions into account in planning activities and managing relationships. As Justice Holmes put it a century ago, "[persecution for the expression of opinions" is "perfectly logical." (23) The rules are very different for government actors. All opinions, no matter how misguided, are insulated from official censure. Modern American jurisprudence prizes unfettered debate as the engine of democracy (24) and the bulwark against government overreach. (25) A wide-open marketplace of ideas may not be perfect, the argument goes, but it is better than the alternative.

Promoting robust debate entails protecting speakers' choices about which topics to address. The government generally possesses no greater authority to play favorites based on speakers' topics than it does their perspectives. (26) In most contexts, the First Amendment forbids the government from singling out a particular subject--such as labor relations, abortion, or military policy--for exceptional treatment, just as it forbids singling out speakers on one side of a given issue. Both types of government action trigger strict scrutiny and are presumptively invalid. (27) As a doctrinal matter, the takeaway is that when the government is restricting or compelling speech, discrimination on the basis of content runs parallel to discrimination on the basis of viewpoint.

Yet the doctrinal correspondence between viewpoint-based restrictions and content-based restrictions belies a theoretical asymmetry. The imperative of viewpoint neutrality prevents the government from marginalizing disfavored perspectives. The courts steadfastly defend even "the thought that we hate" as a means of staving off orthodoxy. (28) When the government welcomes all perspectives on a particular issue but gives favorable or unfavorable treatment to speech based on its subject matter, the state of the law is more difficult to explain. There may be good reasons to worry about the prohibition of, say, labor-related speech or abortion-related speech. But those reasons do not include concerns over burdening one side of a debate while privileging the other. Nor does the republic hang in the balance when a municipality restricts yard signs while making an exception for those that read "for sale"--an exception that depends on the content of speech. (29) The point of these examples is to illustrate that the pitch of constitutional concern can be markedly different when the government focuses on a particular perspective rather than a broader topic of discussion. Nevertheless, the legal effect is the same: content discrimination, like viewpoint discrimination, triggers the most demanding scrutiny. (30)

Except when it doesn't. Notwithstanding judicial suggestions that strict scrutiny follows content discrimination as day follows night, there are numerous situations in which the link is severed. Laws against defamation and incitement need not satisfy strict scrutiny despite their content-based nature. (31) Neither must restrictions on commercial advertising, (32) nor zoning regulations that limit expression, (33) nor rules for the government's use of public resources to encourage discussion and debate. (34) The doctrinal tests in some of these areas are quite protective of speech, even without the application of strict scrutiny. For example, speakers have ample discretion to criticize the manner in which public officials discharge their duties and to advocate for social and political change. (35) Applying a standard other than strict scrutiny might be chalked up to mere nomenclature or historical accident; terminology aside, the speech receives powerful protection. In other contexts, however, laws that depend on the content of a speaker's message receive not just a different version of scrutiny, but a noticeably weaker version. Those cases bend the ordinary rules of free speech. No longer docs the Constitution forbid the government from drawing distinctions based on content. Even so, the imperative of viewpoint neutrality remains. (36)

This Article seeks to reorient the relationship between viewpoint and content in the law of free speech. As a positive matter, the Article contends that First Amendment jurisprudence is more accepting of content discrimination than initial appearances suggest. As a normative matter, the Article defends a focus on viewpoint rather than content as consistent with the First Amendment's core commitments. (37)

Though the case law often...