Content Under Pressure

Abstract

The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain acceptable across a host of situations.

The pervasiveness of content discrimination requires a reorientation of First Amendment doctrine. The core precept of expressive liberty under the U.S. Constitution is that the government may not punish speakers for their positions or perspectives. The cases reveal that so long as viewpoint neutrality prevails, content discrimination often poses no constitutional problem.

Keywords: freedom of speech, first amendment, constitution, supreme court, content discrimination