Content-based vs. Viewpoint-based Restrictions

MBE Substantive Law FAQ Series: Content-based vs. Viewpoint-based Restrictions

We receive a lot of questions from our course students asking us to explain tricky areas of substantive law in more detail.  Some topics, however, turn up in questions far more frequently than others.  Our MBE Substantive Law FAQ Series addresses areas of law tested on the bar exam that are often conflated or not properly understood.  We hope to explain them in a way that will help you process the concept and correctly answer questions if the issue turns up on the MBE!  In this post, we focus on a tricky area of constitutional law: content-based vs. viewpoint-based restrictions on speech!

MBE Substantive Law FAQ Series: Content-based vs. Viewpoint-based Restrictions

The very broad topic of free speech has a seemingly endless amount of nuances and rules to memorize.  When a court reviews a challenge to free speech, there are many different tests it could apply to analyze the situation based on the type of speech involved.  Each of these tests describes a level of scrutiny that the restriction on speech must pass in order to be constitutional.  Some of these tests require that the restriction be viewpoint-neutral, some require the restriction be content-neutral, and some utilize both phrases.  One of the more common questions we get is what exactly does it mean for a restriction to be content-based or viewpoint-based?  What is the difference?

It is perhaps best to try to remember that a particular viewpoint is a subset of a type of content.  Thus, you can have a restriction that regulates speech based on its content (broader, but a bit more acceptable in very specific situations because we aren’t discriminating based on people’s opinions about that content), and then you could have a more narrow regulation that restricts speech based on a particular viewpoint within that content.

Example

Say we have a blank wall in the middle of a city park.  The city wants to restrict what can be posted on this wall (in terms of flyers, posters, etc.).  The most expansive type of restriction you could have would be one that bans all types of speech.  The restriction might look something like this: “Nothing can be posted on this wall.”  There are no considerations in this restriction as to the kind of speech that might be posted.  This regulation is both content-neutral and viewpoint-neutral.

Next, let’s say that the city wants to only restrict speech regarding abortion on the wall.  Consider the regulation “Nothing can be posted on this wall that discusses abortion.” This is more narrow than the regulation above since we are singling out certain types of speech according to its content.  This is therefore a content-based restriction.  However, it is still viewpoint-neutral as the city didn’t focus on a specific viewpoint on the issue of abortion.

Finally, let’s consider this regulation: “Nothing can be posted on this wall that advances pro-life agendas.”  Now we are restricting speech based on a specific viewpoint on abortion (pro-life viewpoints vs. pro-choice viewpoints).  Thus, not only is this a content-based restriction, but this is also a viewpoint-based restriction.  These sorts of restrictions are almost never going to be permissible. The city is being incredibly biased in the type of speech it is restricting.

Conclusion

Thus, when you are looking at a restriction on speech and you have to determine if it is content-based, viewpoint-based, both, or neither, be sure to really think about exactly what kind of speech is being restricted.  Are we restricting all speech on a certain topic, without any regard to the specific position one might be taking on that topic?  Or are we restricting just one side or opinion on a specific topic?  The former is a content-based restriction, but it is still viewpoint-neutral.  The latter is both content- and viewpoint-based.  If you can classify the restriction properly, you will have no problem evaluating whether it passes that aspect of whatever scrutiny test you are applying!

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