Freedom of Speech (Update 1)

AuthorGeoffrey R. Stone
Pages1132-1135

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Although the Supreme Court decided almost thirty cases addressing freedom of speech issues between 1985 and 1989, most of these decisions merely reaffirmed or only modestly refined existing doctrine. Perhaps most important, the Court in this period continued to invoke its content-basedcontent-neutral distinction as a central precept of FIRST AMENDMENT jurisprudence. For purposes of this distinction, a content-based restriction may be defined as a law that limits speech because of the message it conveys. Laws that prohibit SEDITIOUS LIBEL, ban the publication of confidential information, or outlaw the display of the swastika in certain neighborhoods are examples of content-based restrictions. To test the constitutionality of such laws, the Court first determines whether the speech restricted occupies only "a subordinate position on the scale of First Amendment values." If so, the Court engages in a form of categorical balancing, through which it defines the precise circumstances in which each category

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of LOW-VALUE SPEECH may be restricted. In this manner, the Court deals with such speech as false statements of fact, commercial advertising, FIGHTING WORDS, and OBSCENITY. If the Court finds that the restricted speech does not occupy "a subordinate position on the scale of First Amendment values," it accords the speech virtually absolute protection. Indeed, outside the realm of low-value speech, the Court has invalidated almost every content-based restriction it has considered in the past thirty years.

Content-neutral restrictions, the other half of the content-basedcontent-neutral distinction, limit expression without regard to the content of the message conveyed. Laws that restrict noisy speeches near a hospital, ban billboards in residential communities, or limit campaign contributions are examples of content-neutral restrictions. In dealing with such restrictions, the Court engages in a relatively open-ended form of balancing: the greater the restriction's interference with the opportunities for free expression, the greater the government's burden of justification.

It may seem odd that the Court uses a stricter standard of review for content-based restrictions (other than those involving low-value speech) than for content-neutral restrictions, since both types of restrictions reduce the sum total of information or opinion disseminated. The explanation is that the First Amendment is concerned not only with the extent to which a law reduces the total quantity of communication but also?and perhaps even more fundamentally?with at least two additional factors: the extent to which a law distorts the content of public debate, and the likelihood that a law was enacted for the constitutionally impermissible motivation of suppressing or disadvantaging unpopular or "offensive" ideas. These two factors, which are more clearly associated with content-based than with content-neutral restrictions, explain both why the Court strictly scrutinizes content-based restrictions of high-value speech and why it does not apply that same level of scrutiny to all content-neutral restrictions. As indicated, most of the Court's decisions about freedom of speech from 1985 to 1989 reaffirmed this basic...

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