Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional

Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional

January 10, 2023
Free Speech: When and Why Content-Based Laws Are
Presumptively Unconstitutional
The First Amendment’s Free Speech Clause prohibits the
Lower courts have applied City of Austin’s rationale to laws
government from suppressing or requiring adherence to
outside the context of sign codes and other location-based
particular ideas or messages. U.S. CONST. amend. I. The
laws. For example, in a 2022 decision, the U.S. Court of
Supreme Court has recognized that laws restricting or
Appeals for the D.C. Circuit upheld a federal statute, the
compelling speech based on its content have the potential to
Digital Millennium Copyright Act (DMCA), as applied to
expel certain ideas or viewpoints from public debate. The
computer code. The DMCA prohibits the distribution of
Court typically regards such “content-based laws” as
products designed to circumvent encryption and other
“presumptively unconstitutional.” Reed v. Town of Gilbert,
technology that controls access to a copyrighted work. The
576 U.S. 155, 163 (2015). To determine whether a content-
court assumed, for purposes of its analysis, that writing
based law passes constitutional muster, courts generally
computer code is protected speech. The court then held that
apply a legal standard called strict scrutiny, under which the
the DMCA is content neutral because instead of targeting
government must show that the law is the “least restrictive
computer code’s “expressive content,” it targets “the act of
means” of advancing a “compelling” governmental interest.
circumvention and the provision of circumvention-enabling
Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989).
tools.” Green v. DOJ, 54 F.4th 738, 745 (D.C. Cir. 2022). In
The government rarely prevails under strict scrutiny.
other words, the statute regulates the code’s function, not its
Accordingly, lawmakers may consider at the early stages of
substantive message.
policy discussions or bill drafting whether a contemplated
regulation of speech may be content based and whether an
While laws restricting speech are sometimes content based,
exception to strict scrutiny might apply.
laws that compel a person to communicate a particular
message are nearly always content based because they alter
This In Focus discusses the hallmarks of a content-based
the content of that person’s speech. Nat’l Inst. of Family &
law and the limited circumstances in which the Court has
Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018).
recognized a less-demanding standard of review than strict
Laws such as labeling and disclaimer requirements that
scrutiny for some types of content-based laws. See
require private entities to disclose certain information to the
generally Content-Based and Content-Neutral Regulation
public or the government may be considered to compel
of Speech, CONSTITUTION ANNOTATED.
speech and are usually content based.
Hallmarks of a Content-Based Law
Even if a law is content neutral on its face, it might be
A law that regulates speech can be content based in two
considered content based if it reflects a discriminatory
ways. A law can discriminate against certain content
purpose—that is, if it “cannot be justified without reference
through its text (i.e., “on its face”) or through a
to the content of the regulated speech” or was “adopted by
discriminatory purpose. Both forms of content
the government because of disagreement with the message”
discrimination typically trigger strict scrutiny. A law is
conveyed. Reed, 576 U.S. at 164. For example, in 1990, the
facially content based if its text applies to speech based on
Supreme Court dismissed a prosecution under a federal
the subject matter, topic, or viewpoint of that speech. In
statute prohibiting flag burning. The statute did not contain
facially content-based laws, the law’s application turns on
explicit content distinctions, for example, by prohibiting
the “substantive message” conveyed by the regulated
flag burning as a political message but allowing it for other
speech rather than a content-neutral factor such as the
purposes. The Court nonetheless concluded that Congress
speech’s location. City of Austin v. Reagan Nat’l Advert. of
impermissibly sought to suppress “the communicative
Austin, LLC, 142 S. Ct. 1464, 1472 (2022). For example,
impact of flag destruction” in order to preserve “the flag’s
the Supreme Court ruled that a town’s sign ordinance was
symbolic value”—a content-based justification for the law.
content based on its face because it restricted “political”
United States v. Eichman, 496 U.S. 310, 317 (1990).
signs more than “ideological” ones. Reed, 576 U.S. at 159–
60. In contrast, the Court held that a city’s sign code was
The Court considers viewpoint discrimination to be an
facially neutral where that law placed greater restrictions on
“egregious” form of content discrimination. Rosenberger v.
“off-premises” signs advertising businesses or events at
Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829
another location than it did on “on-premises” signs. City of
(1995). A law discriminates based on viewpoint when it
Austin, 142 S. Ct. at 1473. Even though enforcement in
regulates speech based on the particular ideology or
both cases would have required authorities to read the
opinions expressed or favors one side of a debate over
signs’ messages—that is, to know their content—the second
another, as opposed to regulating speech about a general
law singled out signs based on their location rather than
subject matter or topic. There are some limited contexts in
subject matter. It was therefore facially neutral.
which viewpoint-based distinctions are permitted, such as
when the government itself is the speaker. Apart from those
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Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional
situations, viewpoint-based laws carry a particular risk of
does not qualify for Zauderer review may be subject to
government suppression of unpopular ideas. Thus, the
intermediate or even strict scrutiny. See CRS Report
Court has sometimes declared such laws unconstitutional
R45700, Assessing Commercial Disclosure Requirements
without undertaking a strict-scrutiny analysis.
under the First Amendment, by Valerie C. Brannon.
In sum, a law that regulates speech based on its subject
Unprotected Speech
matter, topic, or viewpoint, or because the government
The Court has recognized some “historically unprotected”
sought to suppress or encourage a particular message, is
categories of speech that the government may regulate
likely to be considered content based under current First
because of their harmful content without violating the First
Amendment standards. Most often, content-based laws
Amendment. United States v. Stevens, 559 U.S. 460, 472
receive strict scrutiny in a First Amendment challenge, but
(2010). These include obscenity, true threats, and speech
there are some exceptions, discussed below.
integral to criminal conduct. See CRS In Focus IF11072,
The First Amendment: Categories of Speech, by Victoria L.
Exceptions to Strict Scrutiny Review
Killion. However, any further content-based distinctions
In certain contexts, the Supreme Court has applied a less-
within these categories will trigger strict scrutiny unless
demanding standard of review than strict scrutiny to
“the basis for the content discrimination consists entirely of
content-based laws. Where a lower standard applies, these
the very reason the entire class of speech at issue is
tests are context specific and range from rational-basis
proscribable.” R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992).
review to intermediate scrutiny.
The Court has stated, for example, that the government
“can criminalize only those threats of violence that are
Commercial Speech
directed against the President” because “the reasons why
Commercial speech does “no more than propose a
threats of violence are outside the First Amendment
commercial transaction,” Pittsburgh Press Co. v. Pittsburgh
(protecting individuals from the fear of violence, from the
Comm’n on Human Rels., 413 U.S. 376, 385 (1973), or
disruption that fear engenders, and from the possibility that
relates “solely to the economic interests of the speaker and
the threatened violence will occur) have special force when
its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub.
applied to the person of the President.” Id.
Serv. Comm’n, 447 U.S. 557, 561 (1980). A product
advertisement is a classic example of commercial speech.
Special Contexts
Commercial speech restrictions typically distinguish
Besides commercial speech and the recognized categories
between commercial and noncommercial messages and
of unprotected speech, the Court has permitted some
may draw other content-based distinctions based on the
content-based distinctions in a few special contexts. Each of
type of commercial enterprise at issue. Although such laws
these contexts has its own specific legal standards for
are content based, they typically receive intermediate
evaluating the constitutionality of the speech regulation at
scrutiny because the Court has historically viewed
issue. These special contexts include
commercial speech as having less First Amendment
protection than other forms of protected speech such as
 schools (e.g., Morse v. Frederick, 551 U.S. 393 (2007);
political or religious speech. Under intermediate scrutiny,
see School Free Speech and Government as Educator,
the government must show that the law is “narrowly
CONSTITUTION ANNOTATED);
drawn” (not necessarily the least restrictive means) to
advance a “substantial” governmental interest. Central
 prisons (e.g., Beard v. Banks, 548 U.S. 521 (2006); see
Hudson, 447 U.S. at 564–65. This test is similar to the
Prison Free Speech and Government as Prison
standard that applies to content-neutral laws that regulate
Administrator, CONSTITUTION ANNOTATED);
speech. Regardless of the test applied, however, a law that
singles out commercial speakers for disfavored treatment
 nonpublic forums (government-controlled property
solely because of the commercial nature of their speech is
opened for specific or limited purposes) (e.g., Minn.
unlikely to withstand First Amendment scrutiny.
Voters All. v. Mansky, 138 S. Ct. 1876 (2018); see
Public and Nonpublic Forums, CONSTITUTION
While commercial speech restrictions typically receive
ANNOTATED); and
intermediate scrutiny, a subset of commercial disclosure
requirements may receive a less-demanding standard of
 government programs (e.g., Rust v. Sullivan, 500 U.S.
review. At least in the context of commercial advertising, if
173 (1991); see Selective Funding Arrangements,
a disclosure requirement is (1) limited to “purely factual
CONSTITUTION ANNOTATED).
and uncontroversial information,” (2) about the product or
service offered by the speaker, then a court will likely
Whether a court would apply strict scrutiny in a free-speech
uphold the requirement so long as it is (3) “reasonably
challenge to a content-based law thus depends in part on
related” to an adequate government interest, such as
whether the law regulates protected or unprotected speech,
preventing consumer deception, and (4) not “unjustified or
and if the former, commercial or noncommercial speech, as
unduly burdensome.” Zauderer v. Off. of Disciplinary
well as whether the law concerns a special context that
Couns., 471 U.S. 626, 651 (1985). Courts disagree over
carries its own, more specific legal standards.
whether this Zauderer test applies outside of the
commercial advertising context to other forms of
Victoria L. Killion, Legislative Attorney
disclosures. Because disclosure requirements may be
considered to compel speech, a disclosure requirement that
IF12308
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Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional

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