68 Pages Posted: 12 Jul 2008
Date Written: July, 12 2008
This paper examines the legal treatment of content-based regulations under the First Amendment. Rules disfavoring speech discrimination by the government are central to free speech analysis, and yet are poorly understood and often exaggerated. Heightened scrutiny for content-based regulations serves a primary purpose of preserving plentiful means of communication for all citizens, towards the end of promoting speech for its informational value. The distinction between content-based and content-neutral regulation arises in certain settings from the limitations of judicial review and the role of the political process. The distinction does not represent an overarching principle that government should be impartial towards speech, as leading scholars have argued. To require government to be strictly impartial toward speech would do more harm than good for the quality of speech in society. The freedom of speech functions best when government is allowed make policies based on speech preferences, yet is limited in the means of imposing those preferences.
Keywords: First Amendment, Freedom of Speech, Content Discrimination, Content Based, Content Neutral
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