CategoriesConstitutional LawFirst Amendment
The binary distinction between content-neutral and content-based speech regulations is of central importance in First Amendment doctrine. This distinction has been the subject of U.S. Supreme Court attention on several occasions. As the case law has evolved, however, this apparently crucial distinction has become less clear, coherent, and practical, such that further attempts to establish any clear hierarchical distinction are no longer worth the effort.
This surprising state of affairs has arisen from several judicial developments, operating jointly as well as separately. These developments,discussed below,have eroded a basic assumption underlying much of free speech jurisprudence: that content-based restrictions are uniformly subjected to a more rigorous, exacting, and demanding judicial scrutiny than are content-neutral restrictions. As the validity of this assumption has become more dubious, the clarity, coherence, and practical significance of the distinction between content-neutral and content-based regulations have eroded beyond the point of recoverability.
This Essay establishes that content-based restrictions on speech are no longer uniformly subjected to unequivocally more demanding judicial scrutiny than content-neutral restrictions by examining several recent jurisprudential trends and their effects.The five relevant trends are (1) the compounding complications and failed attempts in seeking to distinguish between content-neutral and content-based regulations of speech in the first place; (2) the crucial judicial option, distinctively available in content-neutral regulation cases, to insist on the realistic availability of ample valued alternative channels through which speakers can continue to convey their message; (3) in partial offset thereof, the rise of the judicial option, thus far in content-based but not yet content-neutral speech regulation cases, to interpret strict scrutiny to require something such as compelling empirical evidence, grounds, and proof of the relevant causation and the effectiveness of the particular speech regulation; (4) the growth of judicial self-indulgence and untested judicial speculation in relying on the supposed availability of uniformly less speech-restrictive and thus more narrowly tailored regulatory regimes; and finally (5) the malleability, if not the sheer arbitrariness, of judicial descriptions of the public interests underlying speech regulations such that the interest may seem to be of compelling gravity or weight under one judicial description but not under an arguably quite sensible alternative description.
Taken separately and in conjunction, these five trends have disrupted any unambiguous hierarchy of rigor as between content-based and content-neutral judicial scrutiny. These trends have more broadly undermined—beyond effective retrieval—any sufficient clarity, coherence, and practical public value of the distinction between content-based and content-neutral regulations. The five relevant trends and their relevant effects are elaborated below.