Wednesday, October 12, 2011


Content-based restrictions regulate speech based on its subject matter or viewpoint. They seek to “suppress, disadvantage, or impose differential burdens upon speech because of its content.”[1] Justice Holmes, in one of his most famous opinions, wrote:
“ The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used . . . create a clear and present danger. . . .[2] ”


In its current formulation of this principle, the Supreme Court held that “advocacy of the use of force or of law violation” is protected unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[3] Similarly, the Court held that a statute prohibiting threats against the life of the President could be applied only against speech that constitutes a “true threat,” and not against mere “political hyperbole.”[4]

In cases of content-based restrictions of speech other than advocacy or threats, such regulations are presumptively invalid.[5] The Supreme Court generally has applies the “strict scrutiny” standard, which means that it will uphold a content-based restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.”[6]

Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from publishing the name of a rape victim, lawfully obtained.[7] This is because there ordinarily is no compelling governmental interest in protecting a rape victim’s privacy.[8]

By contrast, “[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”[9] Similarly, the government may proscribe “‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[10] Here the Court was referring to utterances that constitute “epithets or personal abuse” that “are no essential part of any exposition of ideas,” as opposed to, for example, flag burning.

The operative distinctions between a court’s review of a content-based restrictions and a content-neutral restrictions is that in the former case, the government must meet the “compelling interest” and “least restrictive means” standards, while in the latter situation the government need only prove a “significant interest” and the availability of “ample alternative channels for communication of the information.”

Constitutional scholars generally agree that governmental regulation of media products with violent content, “whether in the form of banning, rating, or channeling of violent media content, necessarily requires the government to make a judgment as to what content lies within the ambit of the statute and what content does not,” thereby triggering content-based strict scrutiny review.[11]

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