The Rise of the Viewpoint-Discrimination Principle

Abstract

The Supreme Court’s freedom-of-speech jurisprudence is complicated. There are few hard and fast rules. One is that judicially-imposed prior restraints on speech are hardly ever permissible. In recent years, another hard and fast rule appears to have developed. It is that the government may never prohibit speech simply on account of its viewpoint. It remains unclear whether this is a per se prohibition or whether such viewpoint-focused regulation must overcome the all but insurmountable burden of serious strict scrutiny. In any event, any governmental rule that attempts to regulate speech based on its point of view will almost certainly be invalidated.

The anti-viewpoint-discrimination principle is of relatively recent origin. The recent decisions in Matal v. Tam and Iancu v. Brunetti have especially invigorated it, suggesting that a majority of the Court is prepared to apply it rigorously. This article will describe the origin of the anti-viewpoint-discrimination principle, define and consider its contours, develop the theory behind the principle, and attempt to explain why it has recently emerged as a focal point of free speech jurisprudence.

Keywords: Constitutional law, First Amendment, freedom-of-speech, Supreme Court, viewpoint discrimination