The Content Distinction

• Pages: 23-42
• Author: Daniel A. Farber

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Chapter 2

THE CONTENT DISTINCTION

The content distinction is the core concept in modern First

Amendment doctrine. Government regulations lin ked to the content

of speech generally receive severe judicial scrutiny. In contrast, when

government is regulating speech, but the regulation is unrelated to

content, the level of scrutiny is lower. Within the category of content-

based regulations, those relating to the viewpoint expressed by the

speaker are more severely disfavored than those based on subject

matter or other message characteristics. As we will see, these rules

are subject to exceptions and qualifications, and they are sometimes

applied oddly. Nevertheless, they do provide overall principles that

apply in a broad range of cases.

We will begin by mapping out these rules, before turning to more

technical issues, such as the exceptions to the rules and the

definitions of the various forms of content discrimination. We then

evaluate the scholarly debate over the content distinction.

I. The Content Distinction in Operation

A stark description of the content distinction, like that give n

above, can give only a rough idea of its actual operation. In this

section, we will examine the case that first clearly articulated the

content distinction. Then we will look at sample cases that show how

the Court views content-based regulations and the very different

approach it takes to content-neutral regulations.

A. Origins

The content distinction found its first clear expression in Police

Department of Chicago v. Mosley.

1

The facts were simple enough.

Earl Mosley, a postal worker, frequently picketed a Chicago high

school with a sign accusing the school of using a quota and practicing

“black discrimination.” Seven months after he had started picketing,

the city enacted an ordinance prohibiting picketing near any school

just befo re, afte r, or during school hours. A proviso exempted “the

peaceful picketing of any school involved in a labor dispute.” Mosley’s

principal argument was that the ordinance was overbroad because it

prohibited even peaceful picketing near a school. The Supreme Court

did not, however, reach the overbreadth issue. Instead, it adopted

Mosley’s fallback argument that the labor picketing exception denied

him equal protection.

1

408 U.S. 92 (1972).

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FOUNDATIONAL ISSUES

Pt. I

One of the oddities of the Mosley opinio n is its reliance on the

Equal Protection Clause, rather than the First Amendment.

Moreover, the treatme nt of the equality issue was peculiar.

Normally, violations of equal protection can be cured in two ways,

either by extending an exemption to cover all situations equ ally, or

by eliminating the exemption, so that the regulation applies equally

to everyone. But the Court did not consider the possibility of curing

the constitutional flaw by eliminating the labor picketing exemption.

This may be an indication that, though it was concerned about the

ordinance’s unequal treatment of different kinds of picketing, the

Court was thinking at least as much in terms of free speech as equal

protection.

The Chicago ordinance, as construed by the Court, applied only

to “labor picketing of a school involved in a labor dispute.” Under this

interpretation, for instance, the ordinance would not allow picketing

by parents opposing a school strike, but only by the strikers. Thi s is

a clear-cut example of viewpoint discrimination. But the Court’s

opinion went far beyond condemning viewpoint discrimination.

Rather, it proclaimed a much broader principle: “[A]bove all else, the

First Amendment means that gov ernment has no power to restrict

expression because of its message, its ideas, its subject matter, or its

content.” As the Court explained,

[U]nder the Equal Protection Clause, not to mention the

First Amendment itself, government may not grant the use

of a forum to people whose views it finds acceptable, but

deny use to those wishing to express less favored or more

controversial views. And it may not select which issues are

worth discussing or debating in public facilities. There is an

“equality of status in the field of ideas,” and government

must afford all points of view an equal opportunity to be

heard. . . . Selective exclusions from a public forum may not

be based on content alone, and may not be justified by

reference to content alone.

Although serving as the fo undation for a new approach to First

Amendment law, Mosley raised as many questions as it settled. The

first question was the scope of the principle. As the Court knew f ull

well, settled law did allow certain kinds of regulation based on

content. For example, the government can ban direct inci tement to

immediate violence. The Court clearly had no intention of overruling

all the prior decisions allowing such types of government regulation,

but it failed to explain their relationship to the new rule of content

neutrality. It also failed to define exactly how to identify content-

based discrimination.