A Variable Number of Cheers For Viewpoint-Based Regulations of Speech
50 Pages Posted: 25 Aug 2020
Date Written: April 8, 2020
Abstract
It is widely taken for granted that viewpoint-based restrictions of speech are, as a class, especially disfavored, meriting either absolute prohibition or strict scrutiny. As it turns out, however, this common assumption is both descriptively incorrect and normatively unjustifiable.
A typology of the various basic forms of viewpoint-based restriction of speech supports this initially surprising claim. This typology can be constructed out of the obvious uncertainties, ambiguities, equivocations, disparities, and gaps found in the viewpoint-restriction cases. Ultimately, depending upon type and circumstance, and apart from any weight of any relevant government interest, a viewpoint-based speech restriction of speech may deserve anywhere between zero and three cheers.
Keywords: speech, viewpoint-based regulations, strict scrutiny, prohibitons, bans
JEL Classification: K10, K19
Suggested Citation: Suggested Citation