Note: This is an educational course, not legal advice.
After Brandenburg, the next question in most speech cases is: what is the law regulating? The Court's central distinction is between laws that target speech because of what it says and laws that regulate speech for other reasons. It borrows the tiers from Con Law I: heightened scrutiny.
| Kind of law | Example | Review |
|---|---|---|
| Viewpoint-based: favors or disfavors one side | a ban on signs criticizing the mayor, but not praising | almost always invalid (the most suspect) |
| Content-based: depends on the subject or message | a ban on all political signs, or a code with different rules for "ideological" and "directional" signs | strict scrutiny: compelling interest, narrowly tailored |
| Content-neutral: applies regardless of message | no signs larger than 16 square feet; no loudspeakers after 10 p.m. | intermediate scrutiny (see time, place and manner) |
Why it works
Why treat content so strictly? Because laws that pick out messages let government shape public debate, the very danger the First Amendment exists to prevent. Viewpoint discrimination is worse still: in Rosenberger v. Rector and Visitors of the University of Virginia (1995) a university could not deny printing funds to a student paper because of its religious viewpoint, and in Matal v. Tam (2017) the government could not refuse to register trademarks that "disparage" people, since giving offense is itself a viewpoint. Some justices have worried that Reed's approach sweeps in many ordinary rules, such as rules about where signs may stand; the Court has said that rules based on location, not topic, are content-neutral.
Key idea
Content-based laws (by subject or message) get strict scrutiny (Reed v. Town of Gilbert (2015)); viewpoint discrimination is the most suspect of all; content-neutral laws get intermediate scrutiny.
Worked example: Neutral as to viewpoint, but not content
A city bans all signs about elections on public sidewalks, for every party and candidate. Content-neutral?
- It treats all viewpoints alike.
- But whether a sign is banned depends on its subject: elections.
- Under Reed that is content-based, so strict scrutiny applies.
Answer: No; it is content-based (though viewpoint-neutral) and gets strict scrutiny.
Worked example: Sort the law
A county forbids any amplified sound in parks after 9 p.m. What kind of law?
- It applies to all amplified sound, whatever is said.
- It is content-neutral, so intermediate scrutiny applies under the time, place and manner test.
Answer: Content-neutral.
Common mistake
Thinking a law that treats all viewpoints equally is content-neutral. A law can be viewpoint-neutral yet content-based if it singles out a subject (all political signs, for example). Check: would you have to read the sign to know whether the law applies? If so, it is content-based.