Invasion of the Content-Neutrality Rule
56 Pages Posted: 21 Feb 2020
Date Written: February 19, 2020
In recent years the Supreme Court has decided a series of First Amendment cases that portend a significant expansion of the content-neutrality role that is already central to First Amendment doctrine. Those cases — Reed v. Town of Gilbert, Sorrell v. IMS Health, and National Institute of Family and Life Advocates v. Becerra (NIFLA) — reflect both a deepening of the content-neutrality rule through a more rigid definition of content discrimination (Reed) and a broadening of the rule’s applicability to other realms: commercial speech (Sorrell) and compelled speech (NIFLA). Akin to the pod people in Invasion of the Body Snatchers, the content-neutrality rule is invading thus-far unconquered areas of free speech doctrine.
This article expresses concern about this invasion of the content-neutrality rule. After explaining how each of these cases represents a new front in that invasion, it considers several explanations for it. It then considers the implications of that invasion — most of them problematic — and speculates about both how the Court might attempt to mitigate those problems while maintaining the invasion’s forward progress and the follow-on problems that might arise from those mitigation strategies.
The article concludes by speculating on future targets for the invasion of the content neutrality rule, and by reprising its concern that the invasion of the content neutrality rule — just like the incursion onto Earth of the pod people in Invasion of the Body Snatchers — threatens to transform fully-formed, context-attuned relational entities into lumbering one-dimensional simulacra. If it comes to pass, that transformation will work to the detriment of both First Amendment doctrine and more generally to the potential for effective government regulation of social life alongside a vibrant marketplace of ideas.
Keywords: First Amendment, Freedom of Speech, Sorrell, commercial speech, NIFLA, compelled speech, Reed, Gilbert, content neutrality rule
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