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Content Discrimination Revisited

71 Pages Posted: 26 Apr 2012 Last revised: 28 Apr 2012

Leslie Kendrick

University of Virginia School of Law

Date Written: April 26, 2012

Abstract

A central feature of First Amendment law is the prohibition on content discrimination: the government generally may not regulate expression on the basis of the message it communicates. It has become commonplace to say that the Supreme Court’s content-discrimination jurisprudence is deeply incoherent, if not end-determined. This article argues that, in fact, the case law is consistent in its concern and its approach. Its substantive concern is with subject-matter and viewpoint discrimination. Its approach to these forms of discrimination, for better or worse, strongly echoes the Supreme Court’s approach to invidious purpose in the Equal Protection context. Recognizing this underlying pattern points the way toward a clearer normative evaluation of the content-discrimination principle.

Keywords: First Amendment, free speech, freedom of expression, content discrimination, content neutrality

Suggested Citation

Kendrick, Leslie, Content Discrimination Revisited (April 26, 2012). Virginia Law Review, Vol. 98, No. 2, p. 231, 2012; Virginia Public Law and Legal Theory Research Paper No. 2012-29. Available at SSRN: https://ssrn.com/abstract=2046743

Leslie Kendrick (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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