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Content-Based Speech Restrictions vs. Content-Neutral Speech Restrictions:

Content-based speech restrictions imposed by the government as sovereign are almost always unconstitutional, unless the speech fits within one of the First Amendment exceptions. Content-neutral restrictions are often constitutional.

I have argued in earlier posts that the Court has been right to treat generally applicable laws that are content-based as applied much like it treats content-based restrictions generally. And I think the Court should treat generally applicable laws that are content-neutral as applied much like it treats content-neutral restrictions generally. The Court probably would not, and should not, have intervened if Hustler had inflicted emotional distress on Falwell by using loud bullhorns outside Falwell's house. Nor would the Court have found a First Amendment violation if the NAACP had been sued for organizing a demonstration that blocked the entrance to Claiborne Hardware's door, or if Schenck had been prosecuted for interfering with the draft by blocking a draft board office.

But why? The law, and thus the lawmakers' motivation for enacting the law, would be the same in these hypotheticals as in the real cases. The law's effect would be the same: The law as applied would restrict speech. What then is left to explain the difference? And if indeed the lawmakers' motivation doesn't have the importance that some assign to it, then what is the difference even between facially content-based laws and facially content-neutral ones? There are, I think, two main answers to these questions — a conceptual one and a pragmatic one.

The Conceptual Distinction: Under nearly every theory of free speech, the right to free speech is at its core the right to communicate — to persuade and to inform people through the content of one's message. The right must also generally include in considerable measure the right to offend people through that content, since much speech that persuades some people also offends others. (There might be some limits on this right to offend, for instance if (1) the speaker is communicating to someone who has already said that he doesn't want to hear the message, and (2) the speaker can stop speaking to this unwilling listener, while still continuing to try to persuade or inform other potentially willing listeners.)

Persuading and informing people may certainly cause harm; the listeners might be persuaded to do harmful things. But the premise of modern First Amendment law is that the government generally may not (with a few narrow exceptions) punish speech because of a fear, even a justified fear, that people will make the wrong decisions based on that speech: "[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.... [I]f there be any danger that the people cannot evaluate the information and arguments advanced by [speakers], it is a danger contemplated by the Framers of the First Amendment." Thus, punishing speech because its content persuades, informs, or offends especially conflicts with the free speech guarantee, more so than punishing speech for reasons unrelated to its potential persuasive, informative, or offensive effect.

Practical Effects — Content-Based Restrictions as Likely Greater Burdens on Speech: I suspect that the Court's skepticism about content-based laws (whether facially content-based or content-based as applied) flows in large part from this conceptual distinction. But the conceptual argument is also reinforced by a pragmatic one: Allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions.

(Note that I'll treat the term "content-based restrictions" as roughly interchangeable with the phrase "restrictions triggered by the communicative effects of speech," and the term "content-neutral restrictions" as roughly interchangeable with the phrase "restrictions triggered by the noncommunicative effects of speech." Also, some commentators have also argued that content-based restrictions are more dangerous than content-neutral restrictions, because content-based restrictions often distort public debate by burdening one side of a debate while allowing another to be heard free of any such burden, but others have disagreed; my analysis neither relies on nor rejects the distortion argument — I focus on whether a restriction is likely to substantially interfere (as opposed to only modestly interfere) with the expression of certain facts or viewpoints.)

To begin with, a typical law aimed at noncommunicative effects is unlikely to excessively inhibit the communication of some viewpoint or fact, because many different media would remain available to the speakers. For instance, even a total ban on leafleting, justified by the desire to prevent litter, would still leave people free to communicate their views by the many media that don't create litter — by displaying signs, using radio broadcasts, advertising in newspapers, and so on.

I think the leafleting ban would indeed interfere with public debate too much, but it can't even come close to driving certain views entirely from public debate. Moreover, because the content-neutral law can potentially apply to a wide range of speakers, its scope will likely be limited by political forces. Thus, the most severe hypothetical content-neutral restrictions — for instance, a ban on printing, justified by the environmental harms caused by the process of making paper — are sure to remain just hypotheticals: They are politically implausible precisely because they burden so much speech.

On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co., bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion — the draft is evil, blacks should boycott white-owned businesses — would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. And because it's limited to a narrow range of speech, it may face less political opposition than broader bans might provoke.

Even narrower content-based restrictions, such as the laws involved in Cohen v. California or Hustler Magazine v. Falwell, can be quite burdensome. True, such restrictions only limit the particular words (in Cohen) or the level of vitriol (in Hustler) a speaker can use, and don't ban the expression of a particular fact or idea. But as Justice Harlan rightly concluded in Cohen, even such restrictions can seriously interfere with people's ability to express the "otherwise inexpressible emotions" that only certain kinds of words can effectively capture. Harsh contempt for a policy (the draft) or a person (Jerry Falwell) is itself a viewpoint that is subtly different from mild-mannered condemnation, and prohibitions on harsh language seriously interfere with the ability to convey this viewpoint.

[Coming Monday: Why can't this be dealt with using an "ample alternative channels" inquiry, under which restrictions — both content-neutral and content-based — would be constitutional if they leave open ample alternative channels for expressing the speaker's ideas, and thus wouldn't impose much of a burden on the speaker's speech? Content-neutral restrictions that leave open ample alternative channels are indeed generally constitutional; not so for content-based restrictions. Does this distinction make sense, or should the rule for content-neutral restrictions also be applied to content-based ones?]