Invasion of the Content Neutrality Rule

Abstract

In the classic 1956 movie, Invasion of the Body Snatchers, alien beings encased in plant pods kill people and assume their physical forms. The resulting “pod people” are flat, one-dimensional versions of their hosts, in stark contrast to the fully-rounded, nuanced human beings whose bodies they colonized.

Over the last several years, three important Supreme Court First Amendment cases—Reed v. Town of Gilbert, Sorrell v. IMS Health, and, just last year, National Institute of Family and Life Advocates v. Becerra (“NIFLA”)—have begun an analogous colonization of several situation-specific and nuanced areas of free speech doctrine. Sorrell and NIFLA have suggested that a strict version of the content-neutrality rule should apply in, respectively, commercial speech and compelled speech cases, even though commercial and compelled speech regulations are, almost by definition, content- and speaker-focused. For its part, Reed embraced a strict definition of content discrimination, one that includes facially content-based laws that nevertheless pose no plausible risk of idea or viewpoint suppression. Together, these cases threaten to convert context-specific First Amendment doctrines into sets of rigid rules, with potentially serious impact on government’s ability to enact reasonable social and economic regulations that pose no threat to First Amendment values.

This Article examines the invasion of the content neutrality rule these cases represent. Parts I through III of this Article consider Sorrell, NIFLA, and Reed, each in turn. Part IV considers possible implications of the invasion of the content-neutrality rule. It concludes that those implications could stretch from lower court defiance of the invasion to the implementation of major changes to foundational First Amendment doctrines. Part V considers possible explanations for the invasion. Those explanations range from the Supreme Court’s continued pro-business agenda to the internal logic of the content-neutrality rule to a free speech romanticism that endows every speech act with seemingly transcendent importance. Part VI concludes by briefly speculating about the future course of this invasion. It identifies two remaining areas—secondary effects doctrine and professional speech—that so far remain unconquered but presumably vulnerable to attack. More generally, it concludes by expressing concern about an unthinking importation of a strict content neutrality regime into contexts in which it makes no sense—an importation that, in light of last year’s decision in NIFLA, appears ever more likely and thus threatening to First Amendment common sense.