Amdt1.2.5.1 Viewpoint Based Discrimination: Overview

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Even if a category of speech is unprotected by the First Amendment, regulation of that speech on the basis of viewpoint may be impermissible. In R.A.V. v. City of St. Paul,1 the Court struck down a hate crimes ordinance that the state courts had construed to apply only to the use of fighting words. The difficulty, the Court found, was that the ordinance discriminated further, proscribing only those fighting words that arouse[ ] anger, alarm or resentment in others . . . on the basis of race, color, creed, religion or gender.2 This amounted to special prohibitions on those speakers who express views on disfavored subjects.3 The fact that the government may proscribe areas of speech such as obscenity, defamation, or fighting words does not mean that these areas may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.4

Footnotes

  1.  Jump to essay-1505 U.S. 377 (1992).
  2.  Jump to essay-2Id. at 391.
  3.  Jump to essay-3Id.
  4.  Jump to essay-4Id. at 383–84.