Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression

Abstract

For over the past three decades, the Court's implementation of the free speech guarantee of the First Amendment has centered on the content approach. The common understanding of that approach is as follows: if a speech regulation is content based, it will be subjected to a stringent form of balancing known as strict scrutiny and rarely be upheld; if it is content neutral it will be subjected to a more general form of balancing known as intermediate scrutiny and may or may not be upheld. The fundamental concern animating the content approach is a general distrust for government speech regulation - the fear that the government will attempt to control speech on the basis of its ideological, moralistic or self-interested agreement or disagreement with the ideas or views being expressed.

This Article challenges commonly held assumptions about the content approach, argues that it should not be the centerpiece of free speech analysis, and proposes a more sensible approach. First, it demonstrates that instead of a system of stringent versus moderate balancing of interests, the content approach has devolved into a bicategorical approach where the initial content characterization of a regulation does all the work: if the regulation is determined to be content based, it is categorically struck down; if determined to be content neutral, it is upheld on a virtually categorical basis. It will be argued that such a framework unreasonably ties the government's hands in dealing with problems created by particular types of expression, and gives the government too much latitude to stifle expression by targeting its means rather than its substance. Second, it will demonstrate that most speech regulations reviewed by the Court are content based in the sense that they draw some sort of content distinction on their face. Yet the Court has modernly taken to calling many of these restrictions content neutral under standards which are applied in an inconsistent and results-driven manner. Within the context of the bicategorical content approach, this means that today many selective content restrictions are being scrutinized under more lenient standards of content-neutral review.

This Article seeks to rectify these problems by proposing a more sensible and true categorical balancing approach to assessing speech regulations, where the government's burden of justification is tied not only to a simplified yet more meaningful assessment of content concerns, but as importantly to the burden a regulation places on expressive rights. Surprisingly, although the latter burden analysis lies at the core of free speech's sister doctrine - the freedom of expressive association - as well as the free expression systems of other liberal democracies, it is largely absent from the current content approach to free speech analysis.

Keywords: first amendment, content discrimination, free speech, freedom of expression, free speech doctrine, content neutrality

JEL Classification: K00, K19, K39