Date of this Version
Washburn Law Journal, Vol. 61 (2021-2022), p. 251-273
Under the Supreme Court's First Amendment jurisprudence, laws that abridge the freedom of speech on the basis of the content of the speech "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Laws abridging speech are content-based if they regulate speech based on "the topic discussed or the idea or message expressed." Thus, a law is content-based if it either restricts or compels speech based on its subject matter. In other words, content discrimination "is a spacious concept that embraces whole subjects of discourse regardless of the 'viewpoint' expressed." For example, a law prohibiting all speech on the subject of abortion would be content-based and thus presumptively unconstitutional. In the case of compelled speech, a content-based mandate might be one in which the law requires a speaker to express an opinionany opinion on a particular subject. For example, the law might compel a speaker to say something anything she wishes about abortion, income inequality, or same-sex marriage. That law is a content-based speech compulsion and is therefore presumptively unconstitutional, unless the government can demonstrate it is narrowly tailored and serves a compelling state interest.