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THE FIRST AMENDMENT AND CONTENT
DISCRIMINATION
Paul B. Stephan III*
As an admirer,friend, and former employee of Justice Powell, I can bring more sincerity than elegance to my expression of tribute to him. For me, as for all of his clerks, he has
been an inspiration,a model of honor, integrity, judgment,
and insight. By example and through kind and patient instruction he has been my teacher. The failings of the present essay are attributableentirely to the inadequacy of the
pupil.
N 1972, the United States Supreme Court announced that
"above all else, the First Amendment means that government
has no power to restrict expression because of its message, its
ideas, its subject matter, or its content."' As often happens with
ringing declarations of sweeping principles, this statement obscured more than it enlightened. It embraced two significantly different strands of first amendment analysis without distinguishing
them. One strand was well established in the case law and wholly
justifiable; the other was entirely new and, I believe, indefensible.
The principle that the Constitution forbids government discrimination against the expression of particular messages or ideas, the
first part of the ringing declaration, was not new. It had emerged
in the cases soon after the modern Court had begun taking the
first amendment seriously.2 Scholars readily had supported the
principle.3 It seems obvious, for example, that we cannot allow the
* Assistant Professor, University of Virginia School of Law; law clerk to Justice Lewis F.
Powell, Jr., 1978 Term.
In this, as in other things, I owe an enormous intellectual debt to Peter W. Low and John
C. Jeffries, Jr., who have taught with me many of the cases that are the subject of this
article. Valuable comments on an earlier draft also were made by my colleagues Lillian R.
BeVier, Saul X. Levmore, David A. Martin, George A. Rutherglen, Stephen A. Saltzburg, G.
Edward White, and J. Harvie Wilkinson III. My student assistants John C. Ertmann, James
P. Petrila, and Irene B. Cramer rendered great help. Errors and shortcomings should be
attributed entirely to me.
Police Dep't v. Mosley, 408 U.S. 92, 95 (1972).
2 See notes 50-73 infra and accompanying text.
3 See, e.g., A. Meiklejohn, Political Freedom 27 (1960); Van Alstyne, Political Speakers at
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government to single out Democrats for special restrictions, or to
outlaw criticism of its policies but to sanction praise.
On the other hand, the notion that the Constitution with equal
force forbids distinctions based only on the subject matter of expression, or on any aspect of its content, was new. No prior Court
decision ever had rested its result on the premise of absolute content neutrality. Taken literally, this proposition means that governmental bodies must disregard all differences in the content of
expression and therefore must treat all speech as indistinguishable.
Any otherwise permissible restriction on speech must apply to all
expression, regardless of subject matter, even if a particular restriction seems justified solely by its impact on one particular category of speech. Carried to its logical extreme, this rule of absolute
content neutrality would require, to take one example, that federal
labor law apply uniform rules to all picketing, whether labor-related or not, to ensure that no special burdens or advantages would
attach to the content-based category of labor speech.4
Since its announcement, the constitutional principle limiting the
power of government to distinguish speech according to its content
has played a significant role in the Supreme Court's decisions.5 Although the Court soon backed away from the broad statement that
the Constitution absolutely forbids such discrimination, it has continued to speak of the Constitution's "hostility" to all regulation of
the content of speech, including government "prohibition of public
discussion of an entire topic."
State Universities: Some Constitutional Considerations, 111 U. Pa. L. Rev. 328, 338 (1963).
4 Cf. NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 616-18 (1980) (Blackmun, J., concurring) (questioning the limitation of the National Labor Relations Act to labor speech).
5 The Court, for example, has used this principle to invalidate legislation forbidding the
display of movies containing nudity, but not of other movies, on drive-in theater screens
visible from the highway, Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); discussion
of pending legislative issues, but not of other topics, by corporations, First Nat'l Bank v.
Bellotti, 435 U.S. 765 (1978); the insertion in public utility bills of statements concerning
controversial public issues, but not other subjects, Consolidated Edison Co. v. Public Serv.
Comm'n, 447 U.S. 530 (1980); the picketing of private residences for political ends, but not
for labor or other commercial purposes, Carey v. Brown, 447 U.S. 455 (1980); the display on
signs and billboards of most noncommercial messages, but not of political campaign posting
of a significant range of commercial advertising, Metromedia, Inc. v. City of San Diego, 101
S. Ct. 2882 (1981); and the use of campus facilities by secular groups, but not by religious
speakers, at a State college, Widmar v. Vincent, 102 S. Ct. 269 (1981).
* Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537 (1980).
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Content Discrimination
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Despite its repeated invocations of a near-absolute content neutrality rule, the Court has not followed its own precept. Since 1972,
it has refused to invalidate legislation or administrative action that
forbids political advertising, but not other messages, in a publicly
owned bus;7 that prevents the clustering of theaters featuring adult
movies, but not of other movie theaters; 8 and that prohibits the
radio broadcast of sexually explicit speech, but not of other material, during certain hours.9 In several cases where the principle has
seemed relevant, the Court has not considered seriously whether it
applied. 10 Throughout, it has failed either to reconcile these results
with the absolute rule it enunciated or to describe the dimensions
of the more limited rule it actually has applied.
This divergence of judicial doctrine and judicial action has
prompted confusion and concern. The lower courts have tried to
interpret the mixed signals they have received from the Court, but
the disarray of their decisions suggests the difficulty of their task.1"
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).
FCC v. Pacifica Found., 438 U.S. 726 (1978).
2o See CBS, Inc. v. FCC, 101 S. Ct. 2813 (1981) (distinction between reasonable access
rights of political candidates and of others in the context of TV advertising); NLRB v. Retail Store Employees Local 1001, 447 U.S. 607 (1980) (distinction between incitement to
secondary boycott and other messages in the context of picketing); Greer v. Spock, 424 U.S.
828 (1976) (distinction between political campaign messages and other speech in the context
of speaking on a military base); CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94 (1973)
(distinction between political and commercial speech in the context of TV advertising).
" Compare Knights of KKK v. East Baton Rouge Parish School Bd., 578 F.2d 1122,
1125-26 (5th Cir. 1978) (use of school facilities may not be denied only to groups advocating
either racial or religious discrimination or violent overthrow of the government); Aiona v.
Pai, 516 F.2d 892 (9th Cir. 1975) (ban of only political campaign signs from sidewalks and
areas adjacent to highways is unconstitutional); Troyer v. Town of Babylon, 483 F. Supp.
1135 (E.D.N.Y.) (prohibition of door-to-door distribution of religious literature and of solicitation of funds except by town residents is unconstitutional), aff'd per curiam sub nom.
Town of Southhampton v. Troyer, 628 F.2d 1346 (2d Cir.), aff'd mem., 449 U.S. 988 (1980);
Orazio v. Town of North Hempstead, 426 F. Supp. 1144 (E.D.N.Y. 1977) (ban on political
signs erected more than six weeks before election is unconstitutional); Wilson v. Chancellor,
418 F. Supp. 1358 (D. Or. 1976) (prohibition of all political speakers from high school is
unconstitutional); Lawrence Univ. Bicentennial Comm'n v. City of Appleton, 409 F. Supp.
1319 (E.D. Wis. 1976) (prohibition of use of school facilities for partisan political or religious
activities is unconstitutional); H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444
(Tenn. 1979) (ordinance that prohibits leaving handbills on private premises but that exempts political and religious material is unconstitutional), with Taxation With Representation v. Blumenthal, 1981-1 U.S. Tax Cas. 9329 (D.C. Cir. Apr. 14, 1981) (tax advantage
given veterans organizations but denied all other groups involved in political activities is
constitutional), petition for rehearing en banc granted and opinion vacated, June 11, 1981,
7
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Scholars have sought to guide the Court, but almost without exception, they have adopted the premise that some constitutional
limits must exist on discrimination among subject matters or other
12
broad aspects of the content of speech.
By contrast, this article has as its thesis the proposition that a
broad content neutrality rule not only obscures free speech questions, but is antithetical to any rational analysis of freedom of expression. The approach reflected in the Court's free speech opinions, and in almost every scholarly discussion of the first
amendment, posits some hierarchy of values entitled to constitutional protection. Such a hierarchy implies a similar ranking of
particular categories of expression, according to the degree the expression implicates the underlying values. No sensible approach to
first amendment questions can dispense with such a hierarchy, although the particular categories and the degree of protection they
receive vary with the theory adopted. Yet, a broad content neutrality rule ignores any such hierarchy and requires that all speech receive the same treatment, regardless of the values implicated. In
principle, then, a broad content neutrality rule is indefensible.
This article first reviews generally the traditional formulations of
first amendment values that have guided the courts and scholars.
It then traces the development of the content neutrality rule in the
Court's decisions. Faced with the incoherence of these results, it
analyzes the various rules against content discrimination that logireargued, Oct. 14, 1981; Taxation With Representation v. United States, 585 F.2d 1219 (4th
Cir. 1978) (same), cert. denied, 441 U.S. 905 (1979); DeGregory v. Giesing, 427 F. Supp. 910
(D. Conn. 1977) (prohibition of residential picketing limited to labor disputes is constitutional); Jewish Defense League v. Washington, 347 F. Supp. 1300 (D.D.C. 1972) (three-judge
court) (ban of demonstrations bringing foreign government "into public disrepute" within
500 feet of embassy is constitutional); Sussli v. City of San Mateo, 120 Cal. App. 3d 1, 173
Cal. Rptr. 781 (Ct. App.) (prohibition of posting of political signs on public property is
constitutional), cert. denied, 102 S. Ct. 643 (1981).
" See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.
L.J. 727 (1980); Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi.
L. Rev. 20 (1976); Scanlon, Freedom of Expression and Categories of Expression, 40 U. Pitt.
L. Rev. 519 (1979); Schauer, Categories and the First Amendment: A Play in Three Acts, 34
Vand. L. Rev. 265 (1981); Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978). But see Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum. L. Rev. 1023, 1078-79
(1979); Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537, 560-63 (1982). See also
Redish, The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113 (1981).
I did not receive a copy of Professor Westen's important essay until I had neared completion of this article so I have been unable to take full advantage of his many insights.
Content Discrimination
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cally can be derived from first amendment principles. Finally, it
examines those cases in which the broad content neutrality rule
has been at issue, and considers the extent to which the case results conform to a narrower and more justifiable rule.
I.
FIRST AMENDMENT DOCTRINE
One would err to speak of first amendment doctrine as if a welldefined consensus existed about the principles underlying first
amendment analysis. Anyone who follows the law must agree with
Professor Emerson's observation that "[t]he outstanding fact
about the First Amendment today is that the Supreme Court has
never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete
cases."1 s Scholars have not achieved any greater success in developing a universally accepted first amendment theory.1'4 Yet, in
spite of the wide range of views on the nature of the protection
granted by the first amendment, common themes have emerged,
and something of a mainstream has developed in scholarly literature. What follows is necessarily a simplistic and selective description of these ideas.
Perhaps the leading theme in the Supreme Court's cases is the
primacy of political speech. The expression of views on matters of
public controversy, to quote a recent decision, "has always rested
on the highest rung of the hierarchy of First Amendment values."1 5
In the words of an important earlier opinion by the same author,
Justice Brennan, "the central meaning of the First Amendment"
3 T. Emerson, The System of Freedom of Expression 15 (1970).
H For a sample of the more influential discussions, see A. Bickel, The Morality of Consent (1975); Z. Chafee, Free Speech in the United States (1954); J. Ely, Democracy and
Distrust 105-16 (1980); T. Emerson, supra note 13; A. Meiklejohn, supra note 3; A.
Meiklejohn, Free Speech and Its Relation to Self-government (1948); Baker, Scope of the
First Amendment Freedom of Speech, 25 U.C.L.A. L. Rev. 964 (1978); BeVier, The First
Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle,
30 Stan. L. Rev. 299 (1978); Blasi, The Checking Value in First Amendment Theory, 1977
Am. B. Found. Research J. 521; Bork, Neutral Principles and Some First Amendment
Problems, 47 Ind. L.J. 1 (1971); Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965); Kalven, The New York Times
Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup. Ct. Rev. 191;
Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204 (1972); Wellington, On
Freedom of Expression, 88 Yale L.J. 105 (1979).
" Carey v. Brown, 447 U.S. 455, 467 (1980).
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lies in its protection of debate of public issues."6 Chief Justice
Hughes voiced this theme when in two important early decisions
he described the first amendment as directed "to the end that the
17
government may be responsive to the will of the people."
Through the decades, numerous opinions of the Court have made
similar declarations. 8
Scholarly support for the primacy of political speech also is
abundant. Professor Meiklejohn, the foremost exponent of the political speech principle, argued that complete freedom on the part
of the public to discuss matters relating to government is a precondition of a representative democracy such as the Constitution established in our country. 9 This freedom is necessary both generally to promote the best choices by the electorate and particularly
to safeguard against the government's attempts to subvert democratic supervision of its actions. 20 Most important for a theory that
asserts a judicially enforced right, its proponents have argued that
the judiciary is best suited to implement the protection of political
speech because it is the branch of government least interested in
21
suppressing it.
Acceptance of the basic tenents of the Meiklejohn theory is so
widespread that, in the words of Professors Jackson and Jeffries,
"the fighting issue is not the validity of Meiklejohn's insight but
rather its exclusivity. ' 22 On occasion, the Court has made statements to the effect that, although "a central purpose of the First
Amendment '[is] to protect the free discussion of governmental affairs,'" its "cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters-to
take a nonexhaustive list of labels-is not entitled to full First
New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
Jonge v. Oregon, 299 U.S. 353, 365 (1937); Stromberg v. California, 283 U.S. 359,
369 (1931).
I See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, 776-78 (1978); Cohen v. California,
403 U.S. 15, 24 (1971); Mills v. Alabama, 384 U.S. 214, 218 (1966); Garrison v. Louisiana,
379 U.S. 64, 74-75 (1963); NAACP v. Button, 371 U.S. 415, 429 (1963); Terminiello v. Chicago, 337 U.S. 1, 4 (1949); Bridges v. California, 314 U.S. 252, 270 (1941); Thornhill v. Alabama, 310 U.S. 88, 95-96 (1940).
16 See A. Meiklejohn, supra note 3; Meiklejoln, The First Amendment is an Absolute,
1961 Sup. Ct. Rev. 245.
20 See A. Meiklejohn, supra note 3, at 116-18.
21 See J. Ely, supra note 14, at 106-07; Bork, supra note 14, at 28-29.
22 Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 11 (1979).
16
17 De
Content Discrimination
1982]
Amendment protection. 23 This assertion is illustrated best in the
area of obscenity, where the Court has drawn the line between protected and unprotected speech at the point where the expression
lacks any substantial social value, not where it lacks only political
relevance. 24 Outside the area of political speech, however, the
Court's decisions reflect confusion of purpose and uncertainty
about the meaning of "full" first amendment protection.2 5
Scholars also disagree as to whether the political speech principle can justify protecting more than political speech. Meiklejohn
and his colleague, Professor Kalven, believed that the protection of
democratic self-government means protection of those forms of expression that enhance the electorate's "capacity for sane and objective judgment.
' 26
Professor Bork has disagreed with the extension,
arguing that other, obviously unprotected activities form personality and attitudes as much as does intellectual, nonpolitical
speech.27 Professor BeVier has argued that although the logical
limits of the political speech principle do not comprise nonpolitical
speech, considerations of practicality arising from the implementation of the principle may justify some extensions.2
Other scholars, dissatisfied with the limits of the Meiklejohn
theory and the Court's uncertain efforts to protect nonpolitical
speech, have sought to develop different approaches to supplement
them. Most prominent among these is Professor Emerson's "general theory" of the first amendment. 29 Although he has accepted
Meiklejohn's observations about the importance of political
speech, Emerson has posited an independent first amendment
value in the individual's achievement of self-fulfillment through
expression." The Court undoubtedly was alluding to Emerson's
23 Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977) (quoting Buckley v. Valeo, 424
U.S. 1, 14 (1976)).
1'
See, e.g., Miller v. California, 413 U.S. 15, 26 (1973); Bork, supra note 14, at 28-29.
28
See, e.g., Metromedia, Inc. v. City of San Diego, 101 S.Ct. 2882, 2890-95 (1981) (plural-
ity opinion); FCC v. Pacifica Found., 438 U.S. 726 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).
26 Kalven, supra note 14, at 221; Meiklejohn, supra note 19, at 256.
21 Bork,
supra note 14, at 26-31. See W. Berns, The First Amendment and the Future of
American Democracy 186-87 (1976); A. Bickel, supra note 14, at 62-63.
28
BeVier, supra note 14, at 332, 352.
='See T. Emerson, supra note 13; T. Emerson, Toward a General Theory of the First
Amendment (1966); Emerson, First Amendment Doctrine and the Burger Court, 68 Calif. L.
Rev. 422 (1980) [hereinafter cited as Burger Court].
30 T. Emerson, supra note 13, at 6. See BeVier, supra note 14, at 321-22.
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theory when in one case it described the first amendment as
designed "[t]o permit the continued building of our politics and
culture, and to assure self-fulfillment for each individual." ' Emerson based his argument for judicial protection of the self-fulfilling
aspects of speech not on the historical meaning of the first amendment or the implications of constitutional structure, but rather on
the historically
successful role of the Court in enforcing analogous
2
3
rights.
Although I must admit some reservations about the validity, but
not the elegance, of Emerson's contributions to first amendment
theory,3 one observation holds true about both his and
Meiklejohn's approaches. Neither argues that the phenomenon of
speech as such merits constitutional protection. Rather, each contends that certain forms of speech and other expression advance
interests safeguarded by the Constitution. For Meildejohn,
whether a particular instance of speech advances protected interests depends directly on the content of the speech, i.e., on whether
it involves a matter within the scope of political debate. For Emerson, the path has an extra turn, but the destination is the same.
His theory protects "expression," but not "conduct," and the line
between the two is drawn after, among other things, a functional
inquiry about the purpose served by the speech at issue. This inquiry in turn can be resolved only by reference to the content of
34
the speech.
31 Police Dep't v. Mosley, 408 U.S. 92, 95-96 (1972). See also First Nat'l Bank v. Bellotti,
435 U.S. 765, 804-05 (1978) (White, J., dissenting).
32T. Emerson, supra note 13, at 13-14. Although the Meiklejohn and Emerson analyses
have not exhausted the potential interpretations of the first amendment, they have
predominated. For variations on these broad themes, see generally the authorities cited at
note 14 supra.
33
My principal reservations concern the line he draws between expression and conduct,
the purpose for which seems unrelated to the principles he discerns as requiring the protection of expression, see BeVier, supra note 14, at 319; Bork, supra note 14, at 34; Jackson &
Jeffries, supra note 22, at 13 n.46, his failure to articulate a principled basis for judicial
enforcement of this right, see Bork, supra note 14, at 1-4, and the tension that exists between the antidemocratic nature of his approach and the democratic goals of the political
speech principle, see BeVier, supra note 14, at 322.
- See T. Emerson, supra note 13, at 18. To take one example, Emerson draws the line
between expression and conduct so as to exclude speech limited to commercial transactions
from the scope of protected expression. See id. at 311; Burger Court, supra note 29, at 45861. See also Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa L.
Rev. 1 (1976).
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One can make a similar observation about any plausible theory
of first amendment rights. Putting aside for the moment the question of legitimacy, and assuming no constraint on the choice of values that the Court might wish to pursue through protection of
speech, one could not devise a rational system of freedom of expression without differentiating among kinds of speech according
to content. Even a theory that asserts the primacy of communication as such (including, to be rigorous, protecting with equal force
communication of opposition to a bill before Congress, false testimony in a court of law, betrayal of the nation, and a proposal to
kill the President or to set prices at a certain level) distinguishes
between speech that is intelligible to its audience and speech that
is not. 5 The only theory that, as a matter of principle, regards all
speech as indistinguishable is one that regards the phenomenon of
speech itself as a worthy end of constitutional protection. Such a
claim extends defense of individual autonomy to the point of total
solipsism and seems preposterous on its face. It necessarily rejects
the premise that government depends on the maintenance of certain social values and substitutes a bizarre physiological or experiential criterion of value. It also defies bare logic. If individuals
have an absolute right to speak or, more generally, to engage in
expression, regardless of its significance to anyone else, how can
society or, more precisely, the courts consistently retain the power
to distinguish expression from anything else?
The notion that the constitutional value of speech varies according to its content has not been lost completely on the Court. In an
opinion containing one of the more unqualified statements of the
broad content neutrality rule, the Court in a footnote admitted
that some of its own decisions had attached great significance to
the content of speech.36 Whether an instance of expression falls
into the category of libel, offensive speech, commercial speech, or
obscenity determines the degree of protection it receives.87 Select-
3' Although the position outlined in the text may seem extreme and unrealistic, exactly
such a distinction between communicative and uncommunicative speech seems to underlie
the first amendment analysis of at least some Justices. See, e.g., Metromedia, Inc. v. City of
San Diego, 101 S. Ct. 2882, 2890 (1981) (plurality opinion); First Nat'l Bank v. Bellotti, 435
U.S. 765, 805-07 (1978) (White, J., dissenting).
'
37
Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 n.5 (1980).
See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557
(1980) (commercial speech); FCC v. Pacifica Found., 438 U.S. 726 (1978) (offensive speech);
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ing the proper category, of course, requires an inquiry into the content of the speech.
For purposes of illustration, the example of defamation serves
admirably. Under the rules developed by the Court, speech expressing only ideas cannot be punished by libel or slander actions, but
in certain instances, speech containing statements of fact can.3s
The decisionmaker must determine whether the speech contained
statements of fact, and if so, whether these statements were false
and defamatory, and to whom they referred.3 9 False and defamatory statements about a public figure cannot be punished without
proof of purposeful lying or reckless disregard for the truth.40 False
statements about private individuals may result in liability upon a
finding of negligence. 1 Moreover, the thrust of recent decisions
suggests that if false statements about private persons were to
arise entirely in a commercial context, the government could impose some kinds of liability without any finding of fault.42 These
rules, taken together, describe a constitutional formula in which
the independent variable is the content of speech, and the dependent variable is the degree of constitutional protection.
This constitutional formula accomplishes two things: it distinguishes protected speech from wholly unprotected speech, and it
divides protected speech into categories of different constitutional
significance. These two functions require separate justification.
Although some scholars concede the necessity of making distinctions on the basis of content between protected and unprotected
speech, they doubt the wisdom of assigning protected speech to
categories that enjoy different levels of protection. These critics
admit that the Court engages in the practice of categorizing, but
argue that such distinctions encourage judicial manipulation and
result in underprotection of speech. In their view, a hierarchial,
categorical system of protection too readily invites judicial acceptGertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (libel); Miller v. California, 413 U.S. 15
(1973) (obscenity).
38 Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); New York Times Co. v. Sullivan,
376 U.S. 254, 271 (1964).
" New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
40 Id.
41
Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Subsequent statements suggest
that it remains an open question whether this rule applies only to newspapers or to all
speakers. See Hutchinson v. Proxmire, 443 U.S. 111, 133-36 (1979).
42 See Friedman v. Rogers, 440 U.S. 1, 9 (1979).
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ance of governmental justifications for the suppression of less protected speech by allowing the Court to cabin the effect of its decisions. They assert that the Court looks uncritically at such
justifications because of a false sense of security that the result
would be different if more significant speech were involved. 43
On balance, however, the experience of the Court belies these
criticisms. For the most part, the concept of less-protected speech
has been used to expand first amendment protection, not to contract it. Again, the best illustration may be the law of defamation.
Before New York Times Co. v. Sullivan," it appeared reasonably
well settled that because of the strong governmental interest in
compensating injuries to reputation, defamatory falsehoods merited no first amendment protection.4 5 In New York Times, the
Court recognized that apprehension of the risk of errors in distinguishing falsehoods deterred some protected speech. 4" The case resulted in a compromise that gives significant protection to defamatory falsehoods, but that does not remove completely the power of
the government to require compensation for the injuries they
47
cause.
The point may be generalized. Strong arguments can be made
against forcing the Court toward extreme choices in the formulation of constitutional doctrine. If the Court could not give lesser
protection to categories of speech of only moderate constitutional
significance, it probably would be less inclined to honor the strategic and pragmatic reasons for extending safeguards to speech intrinsically lacking in constitutional value.48 The result would be ei43 See Scanlon, supra note 12, at 537-42; Schauer, supra note 12, at 282-96.
44 376 U.S. 254 (1964).
45
See Beauharnais v. Illinois, 343 U.S. 250, 256-57 (1952); Chaplinsky v. New Hampshire,
315 U.S. 568, 571-72 (1942); Near v. Minnesota, 283 U.S. 697, 707-08 (1931).
46
376 U.S. at 278.
41 One may view as a continuation of this extension the Court's decision in Gertz v. Rob-
ert Welch, Inc., 418 U.S. 323 (1974), to provide some constitutional protection to defamation
of indisputably private figures. The development of constitutional protection for incitement
of unlawful conduct and commercial speech also has conformed to this pattern. Compare
Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 (1976) (commercial
speech is entitled to some constitutional protection), and Brandenburg v. Ohio, 395 U.S. 444
(1969) (incitement of unlawful behavior is protected unless unlawful action is imminent),
with Valentine v. Chrestensen, 316 U.S. 52 (1942) (commercial speech is outside the scope of
the first amendment), and Whitney v. California, 274 U.S. 357 (1927) (speech tending to
incite unlawful action is unprotected, whether action is imminent or not).
48 For a discussion of the distinction between speech protected in principle and speech
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ther a more restricted concept of protected speech or a dilution of
the level of protection given to the most significant speech. That
the Court may not make the right distinctions, a fear that seems to
underlie the criticism of categorical analysis, does not mean that it
4
should not attempt to do so. 1
In sum, once one concedes the implausibility of a constitutional
principle that regards all expression as equal in value regardless of
its content, one must confront the task of making distinctions
based on the content of speech as a necessary aspect of defining
the goals the first amendment is to serve. The Court has proceeded
a considerable way in this endeavor, although both the distinctions
and the purposes it has perceived are far from clear. For the purpose of this article, the wisdom of the particular choices the Court
has made is not nearly as important as the fact that it has felt
compelled to make them.
The question remains whether governmental bodies other than
courts are entitled to make distinctions based on the content of
speech. An affirmative answer seems obvious, but the broad content neutrality rule articulated by the Court dictates otherwise. To
understand the tension between the Court's own approach to first
amendment problems and the content neutrality rule it seems to
apply to other bodies, one must trace the gradual development of
the rule in the Court's cases.
II.
CONTENT DISCRIMINATION AND THE COURT
The rule demanding content neutrality in governmental action
affecting speech has gone through four stages of development.
From the inception of modern first amendment jurisprudence
through the early years of the Warren Court, the Court struck
down statutes and ordinances only if they discriminated against
proponents of one side of a particular public issue. In the midprotected only because of strategic and pragmatic considerations, see generally BeVier,
supra note 14.
"
For purposes of this point, it makes no difference whether one employs a first amendment analysis that recognizes certain categories of speech of differing constitutional significance or one that in every case balances the constitutional significance of the particular
speech at issue against the governmental interests in its suppression. The latter approach
can be characterized (or perhaps caricatured) as a form of categorical analysis in which the
number of categories of speech equal the number of cases in which its suppression is at
issue. See generally Farber, supra note 12; Redish, supra note 12.
Content Discrimination
19821
1960's, some members of the Court began to suggest that the first
amendment requires a broader neutrality rule. Later, the Burger
Court adopted absolute content neutrality as a constitutional rule.
The Court soon discovered, however, that it could not adhere consistently to this rule.
A.
From Grosjean to Fowler: Viewpoint Discrimination
Concern about discrimination in the context of free expression
emerged as an outgrowth of the general extension of the first
amendment undertaken by the Hughes Court. In Grosjean v.
American Press,5 0 the Court held unconstitutional a Louisiana tax
on newspapers enjoying circulations of greater than 20,000 copies a
week. Justice Sutherland's opinion for the Court leaves much to be
desired in terms of clarity and candor, but a plausible reading in
light of the record would ground its holding on the tax's discriminatory purpose and effect. The tax applied to only 13 of Louisiana's 163 newspapers, and 12 of the 13 had constituted the entire
journalistic opposition to a recent legislative proposal of Governor
Huey Long. Proponents of the tax, particularly Governor Long,
identified its purpose as punishment of the maleficent twelve, with
the inclusion of the innocent thirteenth a regrettable necessity.5 1
In striking down the tax, the Court disclaimed any intention "to
suggest that the owners of newspapers are immune from any of the
ordinary forms of taxation for support of the government. 5 2 Because the tax had the "plain purpose of penalizing the publishers
5' 3
and curtailing the circulation of a selected group of newspapers,
however, it could not survive constitutional scrutiny. If one focuses
on this aspect of the case, Grosjean appears to stand for the proposition that because a discriminatory tax can deter protected
speech just as can criminal penalties, it is objectionable for the
same reasons that criminal penalties would be. Because the first
amendment obviously forbids the government to put people in jail
for opposing legislation, it also precludes fines in the form of a tax.
In the Term following Grosjean, the Court again struck down a
51
297 U.S. 233 (1936).
See Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J.
1205, 1330-32 (1970).
" 297 U.S. at 250.
"
Id. at 251.
216
Virginia Law Review
[Vol. 68:203
statute that limited expression because of the prior statements of
the speaker. De Jonge v. Oregon" involved a criminal syndicalism
statute that prohibited public meetings by groups that advocated
the forceful overthrow of the government. As construed by the Oregon Supreme Court, the statute outlawed even meetings in which
forceful overthrow was not mentioned." The issue presented was
analytically distinct from the question decided in Grosjean because, under the contemporary interpretation of the first amendment, the prior speech that triggered the prohibition did not itself
enjoy first amendment protection. 6 The De Jonge Court, however,
reached the same result as Grosjean, in part because it perceived a
distinct value in protecting peaceable utterances on issues of public moment, even - perhaps especially - by persons otherwise inclined to indulge in constitutionally unprotected incitements to violence. Oregon's selective ban on public meetings suppressed
speech that, although unprotected, bore a close relation to speech
that served a fundamental constitutional end, and therefore had
57
the effect of suppressing the latter.
Following Grosjean and De Jonge, the attention of the Court
shifted to legislation that did not explicitly suppress specific viewpoints, but permitted public authorities to achieve this result. Although the facts differed, each case involved some sort of prior licensing scheme for some form of public expression. In each case
where the Court struck down the legislation, the standard for
granting a license was sufficiently elastic to allow the authorities to
prevent the expression of unconventional views. Each case involved instances where this power had been exercised to the detriment of unpopular minorities and with respect to speech clearly
within the core of first amendment protection.58 Although the
Court saw other evils in these licensing schemes besides the danger
299 U.S. 353 (1937).
Id. at 360-62.
See Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652
(1925); Abrams v. United States, 250 U.S. 616 (1919); Schenck v. United States, 249 U.S. 47
(1919).
57 299 U.S. at 365.
" See Fowler v. Rhode Island, 345 U.S. 67 (1953); Kunz v. New York, 340 U.S. 290
(1951); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948);
Thomas v. Collins, 323 U.S. 516 (1945); Largent v. Texas, 318 U.S. 418 (1943); Cantwell v.
Connecticut, 310 U.S. 296 (1940); Hague v. CIO, 307 U.S. 496 (1939); Lovell v. Griffin, 303
U.S. 444 (1938).
Content Discrimination
1982]
of selective enforcement, these cases support the proposition that
the Constitution does not tolerate legislation that grants government the discretion to burden the expression of particular ideas.59
In 1951, the Court invoked the equal protection clause for the
first time in a standardless permit case. The town of Havre de
Grace, Maryland, traditionally had allowed most groups to use its
park for meetings and demonstrations, conditioned only on obtaining a permit in advance. The town council, however, refused a
request by Jehovah's Witnesses to use the otherwise available park
for a Sunday bible reading. When the sect convened anyway, arrests and prosecutions for disorderly conduct ensued. In Niemotko
v. Maryland,e0 the Court held in a brief opinion that a conviction
under these circumstances violated the Constitution. Chief Justice
Vinson, speaking for the Court, declared that "[t]he right to equal
protection of the laws, in the exercise of those freedoms of speech
and religion protected by the First and Fourteenth Amendments,
has a firmer foundation than the whims or personal opinions of a
local governing body." 61
The terseness of the Niemotko opinion and its cryptic reference
to the equal protection clause make a definitive analysis impossible. What seems noteworthy about the case, however, is that the
Court probably based its concern about discrimination not on the
different treatment of Niemotko's actions and of other forms of
expression generally, but rather on the narrower ground that similar religious observances sponsored by other sects had taken place
in the park without objection. 2 This point is highlighted by Fowler
v. Rhode Island,63 a case arising two years later, which the Court
found "on all fours" with Niemotko." The statute struck down in
Fowler allowed "church services" to be conducted in public parks,
but otherwise prohibited any "religious meeting" in those places. 65
59 See generally
Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, 2907-09 (1981)
(Brennan, J., concurring in result); Note, The Void-for-Vagueness Doctrine in the Supreme
Court, 109 U. Pa. L. Rev. 67, 111-13 (1960).
60 340 U.S. 268 (1951).
61 Id. at 272.
11 See id. at 273.
345 U.S. 67 (1953).
Id. at 69.
During oral argument Raymond J. Pettine, Rhode Island's assistant attorney general
and later a distinguished federal judge, conceded both that the statute at issue did not
prohibit church services in a public park and that the Jehovah's Witnesses convicted of
218
Virginia Law Review
[Vol. 68:203
As the Court analyzed the case, "a relgious service of Jehovah's
Witnesses is treated differently than a religious service of other
sects. That amounts to the state preferring some religious groups
over this one."66 Niemotko, in the view of the Court that recently
67
had decided it, prohibited exactly such discrimination.
Although significant differences exist among the cases, the common thread running through them seems more striking. Grosjean
and De Jonge involved suppressions of the use of private channels
of communication, whereas the standardless permit cases, including Niemotko and Fowler, dealt with denials of access to public
property. In each case, however, the Court held unconstitutional
legislation that singled out particular ideas or beliefs for special
penalties while leaving unfettered the expression of closely related,
and in some sense directly competing, messages. What this article
terms "viewpoint discrimination," or discrimination between competing viewpoints over a particular issue, was the problem
throughout, and in every case the expression of the point of view
discriminated against fell well within the undisputed core of first
amendment protection.
B. Cox v. Louisiana: Intimations of a Broader Rule
The first suggestion that the Constitution prohibits differential
treatment of messages that do not address the same subject matter
appeared in Justice Black's concurring opinion in Cox v. Louisi5 in which Justice
ana,"
Clark joined.6 9 This case was one of several
contemporaneous decisions considering first amendment rights in
the context of southern civil rights demonstrations. 70 Cox, who led
a peaceful march on a public street to protest racial segregation,
was arrested for and convicted of breaching the peace and obstructing a public passageway. 71 Louisiana defined each of these
violating it were engaged in a religious meeting. Id.
" Id.
67
Id.
:8 379 U.S. 536, 580-81 (1965) (concurring opinion).
I9Id. at 591.
70 See Adderley v. Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966);
Edwards v. South Carolina, 372 U.S. 229 (1963); Garner v. Louisiana, 368 U.S. 157 (1961).
See generally H. Kalven, The Negro and the First Amendment (1965).
71 Cox also was convicted of violating a statute prohibiting demonstrations near a courthouse. The Court dealt with this conviction in a separate opinion, see Cox v. Louisiana (Cox
1982]
Content Discrimination
219
crimes through a statute that excepted from its general prohibition
"any of [the] legitimate activities" of "a bona fide legitimate labor
organization. 72 A majority of the Justices voted to strike down
both the disorderly conduct conviction, on the grounds of insufficient evidence and overbreadth, and the blocking traffic conviction, on the ground that the local authorities regularly authorized
exceptions to the general prohibition but followed no governing
standard in doing so. For these Justices, the underlying issue with
respect to the latter conviction was viewpoint discrimination, and
the result reached was firmly in the tradition of the earlier cases. 7
Unlike the Cox majority, Justice Black was unwilling to rest his
holding entirely on the rather sketchy indications of viewpoint discrimination or to reach the insufficient evidence issue. Instead, he
contended that the statutes' unambiguous labor exceptions rendered the provisions unconstitutional. His discussion deserves quotation in full:
I believe that the First and Fourteenth Amendments require that
if the streets of a town are open to some views, they must be open
to all. It is worth noting in passing that the objectives of labor unions and of the group led by Cox here may have much in common.
Both frequently protest discrimination against their members in
the matter of employment .... This Louisiana law opens the
streets for union assembly, picketing, and public advocacy, while
denying that opportunity to groups protesting against racial discrimination. As I said above, I have no doubt about the general
power of Louisiana to bar all picketing on its streets and highways.
Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited.
But by specifically permitting picketing for the publication of labor
union views, Louisiana is attempting to pick and choose among the
II), 379 U.S. 599 (1965), from which Justice Black dissented. The majority reasoned that
although Louisiana undoubtedly could forbid demonstrations "near" a courthouse, law authorities had advised Cox that his demonstration was not so near as to trigger the prohibition. Justice Black disagreed with the majority's characterization of the facts, but not with
its premise. See id. at 576-90 (Black, J., concurring and dissenting).
7'See id. at 576 n.1, 580 n.2 (quoting La. Rev. Stat. §§ 14:103.1, :100.1 (Cum. Supp.
1962)).
11 379 U.S. at 549-52, 553-58. Justice Black concurred in the Court's overbreadth holding
as to the breach-of-peace conviction, Cox II, 379 U.S. at 576-77, and apparently agreed that
the obstructing-passageway conviction constituted viewpoint discrimination, id. at 581. Accordingly, his discussion of other forms of discrimination amounted only to an alternate
holding as to each of the convictions.
Virginia Law Review
[Vol. 68:203
views it is willing to have discussed on its streets. It thus is trying
to prescribe by law what matters of public interest people whom it
allows to assemble on its streets may and may not discuss. This
seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny
this appellant and his group use of the streets because of their
views against racial discrimination, while allowing other groups to
use the streets to voice opinions on other subjects, also amounts, I
think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment. Moreover, as the
Court points out, city officials despite this statute apparently have
permitted favored groups other than labor unions to block the
streets with their gatherings.""
Justice Black saw the case as embodying three distinct forms of
discrimination, any one of which would justify reversal of the convictions. First, by giving preferential treatment to the meetings of
organized labor groups, Louisiana had attempted "to pick and
choose among the views it is willing to have discussed on its
streets. '75 Second, it had employed racial criteria to select disfa-
vored views. Third, in practice the State "apparently" had employed a system of viewpoint discrimination.
Of the three forms of discrimination Justice Black identified,
only the first raised a novel constitutional question. Grosjean, De
Jonge, and the standardless permit cases had struck down legislation that not only had permitted picking and choosing among various views as such, but had required or allowed the imposition of
special burdens on particular viewpoints. Cox, by contrast, involved an extensive but incomplete limitation on expression. Of
the messages burdened by Louisiana's statutes, only a fraction
readily could be portrayed as related to, or competitive with, the
speech protected by the statutes. For example, persons wishing to
protest the existence of nuclear weapons or United States membership in the United Nations were no worse off under Louisiana's
statutes than under a total ban of public demonstrations, because
none of the permitted labor speech would address these subjects.
Perhaps in response to this point, Justice Black struggled hard to
demonstrate that at least some of the speech allowed by Louisi-
7"
75
Cox II, 379 U.S. at 580-81.
Id. at 581.
1982]
Content Discrimination
221
ana's labor exception could address the same subject as the message Cox had attempted to express. If Louisiana tolerated the
views of union members on the issue of employment discrimination, he asserted, the Constitution required similar tolerance for
Cox's opinions on the subject.
Surely Louisiana did not enact these statutes with the purpose
of bringing about any particular instance of viewpoint discrimination. The sweep of the statutes' prohibitions extended far beyond
what was needed to give labor unions an advantage on questions of
employment discrimination. Whatever evils the statutes embodied,
they certainly did not represent a concerted effort by Louisiana to
skew public debate on the issue Cox sought to address.
Such an absence of invidious purpose, however, may not be fatal
to Justice Black's constitutional objection. The statutes, at least as
Justice Black interpreted them, allowed the expression of one
point of view on the issue of employment while forbidding others.
His position may have been that any legislation that effects the
differential treatment of different points of view, even in a single
instance, should fall because courts must not tolerate viewpoint
discrimination in any form. If this had been his position, he might
have been tempted to adopt a constitutional rule forbidding any
distinction among kinds of speech based on content, because almost every distinction has the potential for competing views on
opposite sides."6
Another possible explanation of Justice Black's position rests on
the different perspective the civil rights cases brought to the question of access to public facilities. The pressure and conflict of the
civil rights movement in the South made much more acute the issue of access to public streets and grounds for purposes of political
protest. For the most part, the Court had dealt with this issue,
encapsulated in what has become known as the public forum doctrine, in the context of patent viewpoint discrimination against unpopular minorities. Lurking in Cox, by contrast, was the question
whether civil rights demonstrators had a particular right to picket
in a forum of great moment to their cause, even if a general restric77
tion on picketing were appropriate.
7' See notes 158-60 infra and accompanying text.
7 See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1.
Professor Kalven's description of the Court's stance in the earlier public access cases is
222
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[Vol. 68:203
Delineating a selective right of access for particular speakers in a
particular place seems an especially complex and difficult task.
Satisfactory resolution of the problem requires, among other
things, a fairly coherent sense of the priority of the values at
stake.7 8 Furthermore, by its very complexity, the question of selective access may invite manipulative resolution by judges hostile to
particular outcomes. Perhaps to avoid these difficulties, Justice
Black chose in Cox to announce an all-or-nothing rule: denials of
access to public facilities for purposes of demonstrations should be
tolerated, if at all, only when all possible users are excluded. By
applying this formula, he avoided addressing the selective access
question head-on in a context where it could pose the most
problems, namely a public street, and confined the issue to areas
where he satisfactorily could sustain a rule of no access for anyone.79 The result, however, was to graft onto the established rule of
viewpoint neutrality an extension apparently meant to address a
problem different from discrimination against protected speech. At
the very least, this apparent confusion of access and discrimination
rules is analytically sloppy.8 0
In the years following Cox, the Court took no further steps to
explore the implications of Justice Black's position. It did decide
another selective exclusion case, but the issue as framed by the
Court involved the traditional problem of imposition of special
penalties on proponents of a particular view by a governmental
body. In Tinker v. Des Moines Independent Community School
District,8 1 the Court overturned school suspensions imposed on
two students who had worn black armbands to class to protest
American involvement in the Vietnam war. The Court noted that
school authorities had allowed the wearing of other political symbols such as political campaign buttons, and concluded that "the
worth quoting: "We were likely to regard the law that had been developed as one that concerned a luxury civil liberty. It was a sign of how tolerant toward a sharply dissident minority our society could be, if the minority was small and eccentric." Id. at 2.
See note 155 infra and accompanying text.
For Justice Black, see Cox II, 379 U.S. at 583 (Black, J., concurring and dissenting), as
for his Brethren, see id. at 562, the areas where public access could be completely denied
included the vicinity of courthouses, and of jails, Adderley v. Florida, 385 U.S. 39, 47 (1966).
s For arguments that this confusion may have led the Court both to unsatisfactory access
results and to adoption of unjustifiably broad antidiscrimination rules, see notes 155, 191-93
infra and accompanying text.
81 383 U.S. 503 (1969).
19821
Content Discrimination
prohibition of expression of one particular opinion, at least without
evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally
permissible. '8 2 Justice Black dissented, apparently convinced that
the school officials had acted because of legitimate disciplinary
concerns rather than from a desire to suppress a particular point of
view.8 3 In this instance, his conviction about the good faith of the
authorities overcame whatever reservations he might have had
about the discriminatory effect of the school's actions.
C. Police Department v. Mosley: Announcement of a Content
Neutrality Rule
It was not until the 1972 case of Police Department v. Mosley,"
after Justices Black and Harlan had died and the full complement
of Nixon-appointed Justices was in place, that the Court mined
the possible implications of Justice Black's concurrence in Cox. In
1968, Earl Mosley, a postal employee, spent his free time picketing
a Chicago high school during class hours. His sign accused the
school administration of racial discrimination. When Chicago, for
reasons apparently unrelated to Mosley's protest, enacted an ordinance prohibiting any demonstration within 150 feet of a school
building while classes were in session, Mosely went to federal court
to prevent enforcement. The district court dismissed his complaint, but on appeal the United States Court of Appeals for the
Seventh Circuit held the ordinance constitutionally overbroad
under the first amendment.8 5 The Supreme Court affirmed unanimously, but it rested its decision on a different ground.8 6
s' Id. at 511.
s' Id. at 515-18 (Black, J., dissenting).
84 408 U.S. 92 (1972).
s5 Police Dep't v. Mosley, 432 F.2d 1256 (7th Cir. 1970).
88 The companion case, Grayned v. City of Rockford, 408 U.S. 104 (1972), may shed some
light on the Mosley decision. The Grayned Court upheld a conviction based on facts not
unlike those in Mosley for the violation of an ordinance prohibiting the creation of "any
noise or diversion" tending to disturb a school session. Id. at 108 (quoting Code of Ordinances of City of Rockford, ch. 28 § 19.2(a)). Although Mosley himself engaged in slightly
less disruptive behavior, the juxtaposition of the two cases strongly suggests that the Court
was prepared to uphold a complete ban on access to the vicinity of schools and therefore
that Mosley could have been convicted constitutionally but for the labor exception in the
statute, quoted in text accompanying note 87 infra. The Court, however, explicitly reserved
this question. Id. at 107 n.2.
Virginia Law Review
[Vol. 68:203
The Chicago ordinance excluded from its prohibition "the peaceful picketing of any school involved in a labor dispute. 8' 7 Because
of this exclusion, the Court chose to analyze the ordinance in terms
of the equal protection clause. Although the first amendment
informed its analysis, the Court asserted that, at bottom, the crucial question was one posed by "all" equal protection cases:
"[W]hether there is an appropriate governmental interest suitably
furthered by the differential treatment."88 What constituted an
"appropriate" governmental interest, however, was not made clear
by the Court's analysis.
At points in the Mosley opinion, one finds flat assertions that
"the government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content"8 and that it
"may not select which issues are worth discussing or debating in
public facilities." 90 The opinion declares that "'a concern about
content' . .. is never permitted." 91 Elsewhere, however, it concedes that "there may be sufficient regulatory interests justifying
selective exclusions or distinctions among pickets,"92 and demands
only that "discriminations among pickets.
. .
be tailored to serve
a substantial governmental interest."9 The Court did not clarify
matters by stating that it adopted the views expressed by Justice
perceived three different kinds
Black in Cox, inasmuch as he 9 had
4
case.
that
in
of discrimination
However unsatisfactory may have been the Mosley Court's
description of the standard governing discrimination of the sort at
87
408 U.S. at 93 (quoting Chicago, Ill., Municipal Code, ch. 193-1(i)).
Id. at 95. There followed a string citation to Weber v. Aetna Casualty & Sur. Co., 406
U.S. 164 (1972); Dunn v. Blumstein, 405 U.S. 330 (1972); Reed v. Reed, 404 U.S. 71 (1971).
In retrospect, the citation seems significant because two of these cases are the progenitors of
the "middle-tier" line of equal protection cases. See Gunther, The Supreme Court, 1971
Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer
Equal Protection, 86 Harv. L. Rev. 1 (1972). At the time of the decision, however, this standard of review had not been articulated, and one cannot assume its application to speech
discrimination cases even if one were sure of its content.
:9 408 U.S. at 95.
0oId. at 96.
91Id. at 99 (quoting Kalven, supra note 77, at 29). Professor Kalven, however, appears to
have used the term "content" to refer to a speaker's point of view and not to broad categories of speech. See Kalven, supra note 77, at 30.
92 408 U.S. at 98.
93 Id. at 99.
94 See
note 74 supra and accompanying text.
19821
Content Discrimination
225
issue, the Court's application of the standard raised even more
questions. Chicago had asserted that its ordinance was "a device
for preventing disruption of the school," a concern the Court conceded to be "legitimate."9 5 But, the Court asserted, "Chicago itself
has determined that peaceful labor picketing during school hours
is not an undue interference with school," and this determination
undermined any justification for a prohibition of peaceful nonlabor
picketing.9 The City could not argue that labor picketing as a
class was less prone to produce violence, because "[plredictions
about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of
broad classifications, especially those based on subject matter."' ' 7
These responses to the City's argument can support either of
two very different conclusions: Chicago did not prevail because its
reasoning did not provide even minimal support for the rationality
of its ordinance, or Chicago did not prevail because the perfectly
rational arguments it could have advanced for its ordinance were
insufficient to meet a very heavy burden of justification. Either
conclusion is possible, because the Court did not consider, and
therefore did not indicate how it would weigh, one potentially significant explanation of the ordinance's distinction between labor
and other forms of picketing.
Chicago may have included the labor exception not because it
regarded labor picketing as nondisruptive, but because it believed
higher authorities already had dealt with this problem in a manner
that prevented municipal regulation. The City argued that federal
labor law had preempted the field of worksite picketing in a way
that would have invalidated an extension of the ordinance to labor
picketing."' The Court did not meet this argument directly, but
instead noted that public schools such as the one Mosley picketed
fell outside the scope of federal regulation.99
408 U.S. at 99-100.
"Id.
7
Id. at 100-01.
HsArguing before the Seventh Circuit, Chicago had relied simply on labor preemption.
Before the Supreme Court, the City conceded that the National Labor Relations Act did not
apply to its public schools, but argued that "observance by employees of private employers
of picket lines of public employees can have repercussions in the federal sphere." Id. at 102
n.9 (quoting Reply Brief at 12).
" Id.
Virginia Law Review
[Vol. 68:203
The Court's response, however, was incomplete. It accounted
neither for the application of federal labor law to private
schools, 100 nor for the effect of state regulation on public schools.
As for the latter, at the time Chicago passed its ordinance Illinois
law prohibited public employees, including school employees, from
going on strike and authorized state courts to enjoin such activities. 101 Chicago reasonably may have assumed that the only labor
picketing that was likely to occur at public schools during class
time would be the product of an illegal, enjoinable strike and thus
may have concluded that a prohibition of such picketing would be
redundant. Although this explanation for the labor exception is far
from airtight, it seems at least as plausible as the hypothesis that
Chicago enacted its sweeping prohibition of school picketing with a
view toward silencing Mosley and those like him.
• A more significant and less defensible omission in the Mosley
opinion is its failure to establish a constitutionally significant relationship between the expression allowed by the labor exception
and the message Mosley wished to convey. The Court may have
meant to adopt the relationship described by Justice Black in
Cox,
02
tying union views on employment discrimination to other
viewpoints on that subject. The facts in Mosley were consistent
with Justice Black's linkage, as the labor picketing allowed by Chicago might have competed with the attack on racial discrimination
expressed by Mosley.10 The failure of the Mosley Court explicitly
to make this connection, however, leaves the impression that it did
not consider such a relationship necessary. The opinion's broader
statements about the impermissibility of all content discrimination
reinforce this impression.
Least defensible of all was the Court's failure to acknowledge the
100Chicago hardly can be faulted for its failure to realize that private parochial secondary
schools also did not come under the National Labor Relations Act. This discovery came as
something of a surpise some years later. See NLRB v. Catholic Bishop of Chicago, 440 U.S.
490, 507 (1979).
101 Board of Educ. v. Redding, 32 IlM. 2d 567, 573, 207 N.E.2d 427, 431 (1965). See City of
Pana v. Crowe, 57 Il1. 2d 547, 550-51, 316 N.E.2d 513, 515 (1974), noted in 6 Loy. U. Chi.
L.J. 187 (1975).
'0' See 379 U.S. at 580-81 (concurring opinion); notes 74-80 supra and accompanying text.
103 Indeed, the link may have been stronger in Mosley than in Cox, as the latter case
involved a general ban on picketing. Mosley, by contrast, involved a limitation only on
school picketing, a restriction with particular impact on persons interested in publicizing
views on school policy. See note 137 infra and accompanying text.
1982
Content Discrimination
227
contradiction between the new content neutrality rule it was announcing and the content-oriented jurisprudence of the first
amendment. Only Chief Justice Burger, demurring in a concurrence from the Court's broad statement of the rule, cited obscenity, fighting words, and libel cases as evidence that the first
amendment quite readily tolerated distinctions based on content. 1 " For the majority, the challenge went unanswered, and the
innovation went unexplained.
D. Content Neutrality After Mosley: The Search for a
Tolerable Rule
Although Mosley left much for clarification, subsequent decisions have accomplished little of this task. In CBS, Inc. v. Democratic National Committee,10 5 the Court refused to apply Mosley
to the television networks' practice of selling time for commercial
messages to all comers but restricting political advertising. 1 In
Lehman v. City of Shaker Heights,10 7 four Justices voted to sustain a similar practice in the leasing of advertising space on publicly owned buses because the municipality did not discriminate
within the respective categories of commercial and political
messages.1 08 Four Justices, however, endorsed the proposition that
"discrimination. . .among entire classes of ideas" is as "odious"
as discrimination "among points of view within a particular
class,"10 9 and the decisive concurring opinion of Justice Douglas
110
did not address the issue.
More recently, in FirstNational Bank v. Bellotti1 1 and Consoli10
408 U.S. at 103 (citing Roth v. United States, 354 U.S. 476 (1957); Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942); New York Times Co. v. Sullivan, 376 U.S. 254 (1964)).
412 U.S. 94 (1973).
'"Although the opinion of the Court is hardly a model of clarity, the apparent holding of
the majority was that the editorial judgment of the network constituted a private function
unregulated by first amendment access or discrimination considerations. See id. at 114-18.
But cf. CBS, Inc. v. FCC, 101 S.Ct. 2813 (1981) (Congress may compel access to TV broadcasts on behalf of political candidates).
'
'o*
418 U.S. 298 (1974).
Id. at 303-04.
Id. at 316 (Brennan, J., dissenting).
110 Justice Douglas argued that Lehman lacked standing to raise the question of the mu-
nicipality's treatment of commercial speech, because no one has a "constitutional right to
spread his message before this captive audience." Id. at 308 (Douglas, J., concurring in the
judgment).
" 435 U.S. 765 (1978).
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[Vol. 68:203
dated Edison Co. v. Public Service Commission,1 1 2 the Court invoked the broad language of Mosley in striking down prohibitions
limited to the political expressions of corporations " and utilities,114 respectively. The latter opinion, however, speaks of the first
amendment's "hostility" to "prohibition of public discussion of an
entire topic," implying that the barrier against content discrimination was high but not insurmountable. 5 In Metromedia, Inc. v.
City of San Diego,18 the plurality opinion of four Justices, including the author of Bellotti and Consolidated Edison, cited Mosley
for the considerably more modest statement that "[a]lthough the
[government] may distinguish between the relative value of different categories of commercial speech, [it] does not have the same
range of choice in the area of noncommercial speech to evaluate
the strength of, or distinguish between, various communicative interests. 1 1 7 Whether this restatement reflects retrenchment or only
caution in the face of a divided Court remains to be seen.
The most extensive effort to date to amplify the meaning of
Mosley is Carey v. Brown.' 8 That case involved an Illinois statute
that forbade picketing of a private residence but that contained
exceptions both for picketing by the resident and for picketing by
anyone at residences involved in a labor dispute, used as a place of
business, or employed commonly for meetings to discuss matters of
public interest. " 9 Several members of the Committee Against Racism, who had picketed the home of the Mayor of Chicago to protest his position on busing, were convicted of violating this statute.
They then sought a declaratory judgment that the statute was unconstitutional in light of Mosley. On appeal, the Court2 0found the
case "constitutionally indistinguishable" from Mosley.1
12
447 U.S. 530 (1980).
,3 435 U.S. at 784-85.
114
447 U.S. at 537-38.
115 Id. at 537.
I's 101 S. Ct. 2882 (1981).
117
Id. at 2896.
118
447 U.S. 455 (1980).
19 Id. at 457 (quoting Ill. Rev. Stat. ch. 38, § 21.1-2 (1977)). The nature of these exceptions was not altogether free from ambiguity, especially as no state court construction of the
statute existed. Portions of Justice Brennan's opinion can be read as ignoring the exceptions
for residences used for public interest matters and for picketing by the resident. Compare
id. at 468-69 & n.13, with id. at 473-74 (Rehnquist, J., dissenting).
22 Id. at 460.
1982]
Content Discrimination
229
For the most part, the discussion in Carey mirrors Mosley.1" 1 Although the Court suggested "that certain state interests may be so
compelling that where no adequate alternatives exist a contentbased distinction-if narrowly drawn-would be a permissible way
of furthering those objectives," it did not find such interests present in the Illinois statute. 122 It dismissed as "dubious" the argument that federal labor law prevented Illinois from implementing a
judgment that labor picketing was disruptive.12 3 It rebutted the
contention that all the exceptions to the picketing bans involved
instances where residents had waived a legitimate expectation of
privacy with the inapposite assertion that public figures such as
the mayor had even a lesser right to privacy.1 24 As in Mosley, the
Court made no effort to bring under a common topical heading the
views permitted to be expressed under the statute's exceptions and
1 25
the prohibited speech.
The absence of any discussion of the constitutionally relevant
ties between the favored views and the suppressed speech may
have been more significant in Carey than in Mosley, because one
has a harder time seeing any common subject matter in Carey. All
of the exceptions to Illinois's prohibition of residential picketing
involved expression that in some way referred to the use to which
One significant difference between the two opinions is the degree to which the Court
relied on the equal protection clause as an independent source of constitutional rules concerning content discrimination. The Mosley opinion insisted that the issue was analogous to
that present in "all" equal protection cases and stressed the importance of equal protection
as a ground for decision. See notes 87-88 supra and accompanying text. Although the Carey
majority quoted the relevant passages in Mosley concerning equal protection, see 447 U.S.
at 459-60, 461-62, in general the Court looked more directly to the first amendment for the
source of the underlying right, id. at 460, 462. Justice Stewart, who concurred only in the
judgment, explicitly rejected equal protection as a useful analytical tool in this context and
declared that the case involved only "the basic meaning of the constitutional protection of
free speech." Id. at 471. See Westen, supra note 12, at 562 n.84. More recently, the Court
has indicated its acceptance of the notion that equal protection doctrine does not add to the
analysis of the protection required by fundamental constitutional rights. See Jones v.
Helms, 101 S. Ct. 2434, 2443 (1981) (once statute limiting right to interstate travel is determined not to interfere impermissibly with that right, only rational-basis scrutiny under the
equal protection clause will be applied); id. at 2443-44 (White, J., concurring). See also note
161 infra.
121 447 U.S. at 465.
,:3 Id. at 466 n.10.
42 Id. at 469.
125 See notes 164-71 infra and accompanying text.
230
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the picketed residence was put.126 The Committee Against Racism,
on the other hand, had no concern with what the mayor did in his
home and picketed that place only because of the identity of the
occupant. It is difficult to see how the expression of the tolerated
views would have had any relation to what the Committee wished
to communicate to the public. This absence of any readily apparent nexus between the advantaged and burdened views suggests
that the Court applied a strong prophylactic antidiscrimination
rule, but the opinion does not reveal its boundaries.
Also absent from Carey, as from Mosley, is any discussion of the
apparent inconsistency between the majority's statement of the
content neutrality rule and the Court's own practice of varying the
level of first amendment protection according to content. This
omission seems most glaring in Carey, a decision delivered the
same day the Court handed down one opinion acknowledging the
existence of a relationship between content and protection, 12 7 another specifying the significantly lower protection given the
content-based category of commercial speech, 12' and a third upholding a form of content discrimination against the category of
labor speech."2 9 The Court made no effort to reconcile this melange
of statements and results. Instead, Carey reads as if it existed in
an entirely separate universe, independent of the problems and
concerns that produced a content-oriented first amendment
jurisprudence.
In sum, since Mosley the Court has seemed committed to a rule
that demands more than viewpoint neutrality of legislation affecting speech. How much more remains an open question. 30 The
problem of defining the boundaries of this rule has been exacerbated by the Court's failure either to explain why it was broaden12, See 447 U.S. at 474 (Rehnquist, J., dissenting) ("principal determinant" of the right to
picket is "the character of the residence sought to be picketed").
127 Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 n.5 (1980).
2
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562-63
(1980).
I NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 616 (1980) (plurality opinion); id. at 616-18 (Blackmun, J., concurring in judgment); id. at 618-19 (Stevens, J., concur-
ring in judgment).
130
In Widner v. Vincent, 102 S. Ct. 269, 277 (1981), the most recent decision to address
this matter, the Court declared that its cases "have required the most exacting scrutiny in
cases in which a State undertakes to regulate speech on the basis of its content." Unfortunately, one still must ask: Scrutiny for what?
Content Discrimination
1982]
ing the rule developed in earlier cases or to reconcile the rule with
its own practice of content discrimination in the decision of first
amendment cases. To determine what rule the Court should apply,
it is necessary to explore the kinds of content discrimination the
Court may seek to prohibit and the role each kind plays in an analysis of freedom of expression.
HI.
FORMS OF CONTENT NEUTRALITY
Logic and a close reading of the Court's decisions suggest at least
five possible antidiscrimination rules concerning the content of
speech. One of these rules has an obvious and important role to
play in any first amendment theory. Another just as obviously is
antithetical to any conceivable system of free speech. The validity
of the remaining three possible rules can be tested by analyzing
them in the context of particular cases.
A.
The Possible Rules
If one begins with the assumption that the first amendment recognizes the existence of distinct categories of speech of varying degrees of constitutional significance, then at least five antidiscrimination rules are possible, regardless of the number or content
of the categories. A rule of viewpoint neutrality would not allow
the government to disadvantage one point of view in relation to
another on the same subject if the disadvantaged point of view
otherwise would enjoy first amendment protection. This rule would
require only what the pre-Mosley cases demanded.
A rule of hierarchicalneutrality would compel the government
to treat equally all speech that falls within a particular category of
first amendment significance. This rule would rest on the assumption that the boundaries of each hierarchy would embrace all
points of view concerning subjects within the hierarchy." 1 It would
demand, for example, that a state that permits political campaign
speeches in a particular time and place also allow all other expres131 It seems self-evident that all points of view on a particular subject should have the
same constitutional significance and therefore fall within the same constitutional hierarchy.
Execution of this principle in practice involves some difficulties, see notes 158-60 infra and
accompanying text, but the problems involved do not seem qualitatively different from
those entailed in the application of any abstract principle to the complexities of the real
world.
232
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sion of equal constitutional significance-calls for structural political change, philosophical discussion, or whatever-to proceed on
the same terms. This rule, however, would not require the same
treatment for speech that falls in either a more or less protected
category.
A rule of equal-or-greaterneutrality would forbid the government to give any advantage to expression in relation to its treatment of speech of equal or greater first amendment significance.
Unlike hierarchical neutrality, this rule would extend the advantage at issue to speech in a different but higher first amendment
category. If, for the sake of argument, the first amendment protected the categories of political speech, intellectual speech, and
commercial speech in descending order and the government gave a
benefit to some subcategory of intellectual speech, equal-or-greater
neutrality would compel the government to give a similar benefit
to all political and other intellectual speech, but not to commercial
speech.
A rule of protected-speech neutrality would not let the government disadvantage any speech protected by the first amendment
in relation to its treatment of any other expression. It would regard
the categorical boundaries employed in other first amendment contexts as irrelevant to the validity of discrimination among kinds of
protected speech. Assuming the same hypothetical hierarchy of
categories of expression as in the previous paragraph, a protectedspeech neutrality rule would require the government to treat commercial speech on the same terms as it does political campaign
speeches. This rule would allow only neutral "time, place, or manner" restrictions on speech otherwise within the ambit of the first
amendment." 2
Finally, a rule of absolute content neutrality would forbid any
distinction on the basis of the content of speech. It would not let
the government recognize a difference between, for example, honest and false tax returns, true and false defamation, or obscene and
12 On the formulation of the "time, place, or manner" doctrine generally, see Heffron v.
International Soc'y for Krishna Consciousness, 101 S. Ct. 2559, 2563-65 (1981); Grayned v.
City of Rockford, 408 U.S. 104, 116 (1972); Adderley v. Florida, 385 U.S. 39, 47-48 (1966);
Kovacs v. Cooper, 336 U.S. 77, 85-87 (1949); Cox v. New Hampshire, 312 U.S. 569, 574-76
(1941); Kalven, supra note 77, at 23-27. Implicit in this article is a criticism of the traditional formulation of this doctrine to the extent it presupposes a complete prohibition of
distinctions based on the content of speech.
Content Discrimination
1982]
233
nonobscene movies. It would take literally the statement in Mosley
that a concern about content is "never permitted.""'
With the exception of absolute content neutrality, for which the
Court has given only rhetorical support, each of these rules has
received the endorsement of one or more Justices as the exclusive
standard for assessing discrimination in speech."" As a matter of
principle, the arguments for a viewpoint neutrality rule and
against absolute content neutrality are simple and straightforward.
The validity of either the hierarchical, equal-or-greater, or protected-speech neutrality rules seems more problematic.
B.
The Obvious Cases: Viewpoint and Absolute Content
Neutrality
Long before the Court decided Mosley, it had embraced a rule of
viewpoint neutrality with respect to legislation affecting speech. "
Such a precept seems an essential concomitant of any rational system of freedom of expression. It rests on the realization that
speech of constitutional significance suffers indirectly from advantages given to opposing points of view, and that this indirect harm
amounts to suppression. Thus, any system that protects speech
must insist to the same degree on viewpoint neutrality.136
It is interesting to note how many of the Court's post-Mosley
decisions could have reached the same result if they had rested
exclusively on a viewpoint neutrality rule. Mosley itself is typical.
That case, it will be recalled, involved an ordinance that allowed
only labor picketing near schools during class hours. As construed
by the Court, the ordinance apparently allowed working teachers
to express their views about conditions of employment, but denied
access near schools to interested parents, prospective teachers, and
others generally interested in school policies. 3 If one makes the
13
408 U.S. at 99.
134
See, e.g., Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882 (1981); notes 159-84
infra and accompanying text.
See notes 50-73, 81-83 supra and accompanying text.
Meiklejohn appreciated this point and incorporated it in his assertion of "equality of
status in the field of ideas," A. Meiklejohn, supra note 3, at 27. This phrase was quoted out
of context in Mosley. See 408 U.S. at 96 & n.4. As the complete passage reveals, Meiklejohn
believed not that all ideas always enjoy equal status, but rather that all ideas regarding a
particular subject of public discussion must be accorded the same privileges.
137 At least, this restriction seems implicit in the Court's reading of the exception as lim135
136
234
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[Vol. 68:203
reasonable assumption that persons who wish to address questions
of school policy have the greatest interest in picketing near a
school, then those with the strongest interest in opposing teachers
on school issues suffered disproportionately under the Mosley ordinance. In particular, the ordinance benefited teachers on questions of employment policy, a matter about which they were especially interested, and discriminated against those who wished to
change the school's employment policy to the disadvantage of
those teachers. Mosley held exactly this view, if one may construe
his rather broad protest as calling for racial integration of the
teaching staff. Seen in this light, Mosley's claim of viewpoint discrimination seems at least plausible, if not quite overwhelming.
Other cases in which the Court has articulated a broad neutrality rule also can be cast as involving viewpoint discrimination. In
City of Madison Joint School District v. Wisconsin Employment
Relations Commission,""8 the Court struck down an administrative
order prohibiting school teachers other than union representatives
from addressing board of education meetings about school policy.
The Court noted that the order excluded from "public discussion
of public business" a class of speakers who were "vitally concerned" with the matter about which they could not speak.13, In
many ways, the discrimination paralleled that in Mosley, with
anti-union teachers rather than antiteacher citizens the victims.
First National Bank v. Bellotti1 40 involved a first amendment
challenge to a Massachusetts statute forbidding corporations from
spending money to influence public referenda on taxation.14 1 In
ited to "labor picketing." 408 U.S. at 94 n.2 (emphasis in original). Perhaps the exception
would have extended to nonworking teachers seeking to organize a school's work force, cf.
Carey v. Brown, 447 U.S. at 467 n.12 (1980) (labor speech exemption includes third party
labor picketing), but under the Court's interpretation it appears not to have reached persons
who simply wished to be hired as teachers.
118 429 U.S. 167 (1976).
138Id. at 175. The Court also noted that the neutrality rule it applied would not interfere
with the power of public bodies to "confine their meetings to specified subject matter." Id.
at 175 n.8.
140 435 U.S. 765 (1978).
141 Mass. Gen. Laws Ann. ch. 55, § 8 (West Supp. 1977). The provision forbade corporations from making any expenditures "for the purpose of. . . influencing or affecting the
vote on any question submitted to the voters, other than one materially affecting any of [its]
property, business, or assets," and specifically excluded questions "solely concerning the
taxation of the income, property, or transactions of individuals" from the "materially affecting" exception. For an insightful analysis of this and other issues raised by Bellotti, see
Content Discrimination
1982]
striking down the statute, the Court observed that "the legislature's suppression of speech suggests an attempt to give one side of
a debatable public question an advantage in expressing its views to
the people."14 In Village of Schaumburg v. Citizens for a Better
Environment,143 the Court held unconstitutional an ordinance forbidding door-to-door solicitation by those charitable organizations
that gathered and disseminated information and opinions about issues of public concern, but not by those acting as conduits for contributions.1 " The majority's opinion is rather murky and does not
mention discrimination as such, but its underlying concern may
have been the apparent disadvantage the ordinance gave to organizations seeking to promote social change in relation to organizations dispensing more traditional forms of charity.1 45 Finally, the
1 46
Court in ConsolidatedEdison Co. v. Public Service Commission
invalidated an administrative order forbidding utilities from including in their monthly bills inserts expressing opinions "on controversial issues of public policy.
' 147
Although only Justice Stevens
based the decision on this narrow ground, the order limited the
right of one distinct group of persons-managers and owners of
utilities-to address important public issues, and exactly as did
the statute in Bellotti, it suggested an attempt to skew public
1
debate.
48
The real issue, then, is not the validity of a viewpoint neutrality
BeVier, Justice Powell and the First Amendments "Societal Function": A Preliminary
Analysis, 68 Va. L. Rev. 177 (1982).
141 435 U.S. at 785.
143
444 U.S. 620 (1980).
The ordinance permitted solicitation only by those organizations that submitted "satisfactory proof that at least seventy-five percent of the proceeds of such solicitation will be
used directly for the charitable purpose of the organization." Id. at 624 (quoting Schaumburg Village Code § 22-20(g) (1975)). As the Court understood this restriction, a "charitable
purpose" did not include gathering and disseminating information and ideas about issues of
public concern. See id. at 635.
145 Id.
146 447 U.S. 530 (1980) (quoting App. to Juris. Statement at 43).
147 See id. at 533.
146 See id. at 546 (Stevens, J., concurring in the judgment). Another way of bringing the
result under an exclusive viewpoint neutrality rule would be to emphasize the rule's limitation to "controversial" issues. The suppression of controversy itself may reflect a systematic
bias in favor of support for or tolerance of the status quo. Cf. Metromedia, Inc. v. City of
San Diego, 101 S. Ct. 2882, 2915 (1981) (Stevens, J., dissenting) (asking whether the distinction "is a subtle method of regulating the controversial subjects that may be placed on the
agenda for public debate").
144
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rule, but rather its exclusivity. Among the four possible rules that
forbid more than viewpoint discrimination, one seems totally implausible as a rule for constitutional decisions and can be eliminated immediately. A requirement of absolute content neutrality
would deny to government the power to distinguish speech falling
within the ambit of the first amendment from that without. Despite the hyperbole found in Mosley and other opinions, it seems
clear that the Court never has embraced such a rule and never
149
will.
The problem, then, boils down to the appropriateness of the hierarchical, equal-or-greater, and protected-speech neutrality rules
as alternatives to exclusive reliance on the viewpoint neutrality requirement. Rather than discuss this question in the abstract, the
article analyzes these three rules through illustrative cases.
C. Hierarchical,Equal-or-Greater,and Protected-Speech
Neutrality Rules in the Court's Decisions
Three cases highlight both the range of rules that the Court has
applied and the arguments that support them. In Lehman v. City
of Shaker Heights,150 a divided Court reached a result compatible
with hierarchical neutrality, but not with any broader rule. The
result in Carey v. Brown 51 is consistent with a rule of hierarchical
neutrality, but the Court rather clearly articulated an equal-orgreater rule. In Metromedia, Inc. v. City of San Diego, 52 viewpoint, hierarchical, equal-or-greater, and protected-speech neutrality rules each received the endorsement of one or more Justices as
the exclusive standard for judging claims of discrimination. Each
case is examined in turn.153
149
See notes 13-42 supra and accompanying text.
250 418 U.S. 298 (1974).
151
447 U.S. 455 (1980).
152 101 S. Ct. 2882 (1981).
153 These cases are illustrative, but by no means exhaustive. Other decisions since Mosley
have raised speech discrimination issues, but extraneous factors have complicated their
analysis. In several cases where the Court has sustained distinctions between political and
other speech, the government was able to justify the restriction on the need, arguably of
first amendment significance, to limit its own political involvement. See Greer v. Spock, 424
U.S. 828 (1976) (Army regulations may ban political activity on base); Broadrick v.
Oklahoma, 413 U.S. 601 (1973) (a state may restrict its civil servants' partisan political activities); Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973)
(federal law may ban partisan political activity or political management by federal employ-
1982]
Content Discrimination
1. The Lehman Case
Lehman involved a first amendment challenge to a municipality's refusal to lease advertising space in its buses to a candidate
for political office. Shaker Heights prohibited any advertising connected with politics or other public issues, although it otherwise
leased space on a first-come, first-served basis.1 " The Court upheld this restriction, although a majority of the Justices could not
agree on the reasons for doing so.
If one puts aside the rather unsatisfactory opinions in the case
and looks at only the facts and the result, a reasonable basis for
the decision may emerge. Harry Lehman, the candidate who
sought to lease advertising space, made two arguments. First, he
asserted a right of access to the bus walls based on the intrinsic
value of that medium to the expression of his message. Second, he
ees). Cf. Branti v. Finkel, 445 U.S. 507 (1980) (federal government may not discharge federal
legal aid employees because of their political party affiliations); Elrod v. Burns, 427 U.S. 347
(1976) (a state may not discharge sheriff's deputies because of their political party affiliations). In other cases, the Court has displayed uncertainty as to whether restrictions on the
expenditure of money constitutes suppression of expression. Compare California Medical
Ass'n v. FEC, 101 S. Ct. 2712 (1981) (federal law may limit political contributions) and
Buckley v. Valeo, 424 U.S. 1 (1976) (same), with Citizens Against Rent Control/Coalition for
Fair Housing v. City of Berkeley, 102 S. Ct. 434 (1981) (municipal ordinance limiting contributions to communities supporting or opposing local ballot initiatives violated the first
amendment). Cf. Wright, Politics and the Constitution: Is Money Speech? 85 Yale L.J. 1001
(1976) (answering the question in the negative). The Court has sustained what can be described only as limited viewpoint discrimination against "indecent" speech, apparently because of uncertainty as to what first amendment interests, if any, are implicated by this
particular form of expression. Compare FCC v. Pacifica Found., 438 U.S. 726 (1978) (the
FCC may prohibit profanity during daytime radio broadcasts), and Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976) (movie theatres featuring explicit sex may be subjected to
special zoning requirements), with Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (an
ordinance may not prohibit drive-in theaters from showing movies containing nudity that
are visible from street). In one case, the Court's content discrimination analysis appears to
have served as a substitute for resolution of free exercise and establishment clause questions. See Widmar v. Vincent, 102 S. Ct. 269 (1981). Finally, implicit in the Court's recognition of a lower constitutional status for commercial speech has been a willingness to tolerate
government choices among the economic interests implicated by such speech. See notes 18485 infra and accompanying text. This tolerance may explain the Court's willingness to sustain discriminatory regulation affecting the entirely commercial aspects of labor speech. See
NLRB v. Retail Store Employees Local 1001, 447 U.S. 607 (1980) (prohibition limited to
secondary boycott communications is constitutional); American Radio Ass'n v. Mobile S.S.
Ass'n, 419 U.S. 213 (1974) (prohibition limited to advocacy of strikes is constitutional). Cf.
NLRB v. Gissell Packing Co., 395 U.S. 575, 616-20 (1969) (labor relations do not implicate
the first amendment to the same degree as political debate).
I5 See 418 U.S. at 300-01.
238
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claimed discrimination by the City based on the access it gave to
persons with other messages. For each of these claims, it mattered
that Shaker Heights let others use bus advertising, but it mattered
for different reasons.
With respect to Lehman's access claim, one of his strongest arguments was that Shaker Heights belied whatever reason it had for
limiting access by letting others speak through the medium of bus
advertising. The access allowed to others is an important consideration in balancing the incremental benefit from Lehman's expression against the incremental cost to the City of providing access,
because
it helps indicate the value of the City's asserted regulatory
aims. 155 A reasonable judge might still decide, as perhaps did the
Lehman plurality,1 5 that the gain to expression from bus advertising would be too slight to outweigh even a heavily discounted governmental interest. The dissent, however, reached a different conclusion.1 57 In any event, the correct resolution of the access
problem falls outside the scope of this article.
With respect to Lehman's discrimination claim, the access enjoyed by others would be significant only if the permitted speech
in some way reduced the impact of his own message. Given the
breadth of the City's ban, establishing such harm probably would
be impossible. Lehman wished to promote his candidacy, a matter
155 A nonexhaustive list of the factors one might consider in weighing a particular
speaker's claim to speak in a particular place might include the following:
1) the relationship of the place to the speech and the degree its use will enhance the
impact of the speech;
2) the general constitutional significance of the speech;
3) the traditional availability of similar places to similar speech;
4) the availability of alternative channels for the speech;
5) the ease with which use of the place can be rationed to limit the costs associated with
access;
6) the overall costs of access;
7) the government's noncost justifications for limiting access; and,
8) the availability of the particular place to other speakers.
This last factor might justify the result discussed in the text. The seminal discussion of
access questions is found in Kalven, supra note 77. See also Cass, First Amendment Access
to Government Facilities, 65 Va. L. Rev. 1287 (1979); Stone, Fora Americana: Speech in
Public Places, 1974 Sup. Ct. Rev. 233.
, See 418 U.S. at 304.
See id. at 312-14 (Brennan, J., dissenting). Although the dissent recognized the legitimacy of balancing, id. at 312, it found that no balancing was necessary in this case because
the City had waived any argument against letting Lehman buy space by providing access to
commercial advertisers, id. at 314.
19821
Content Discrimination
of public importance. By contrast, none of the sanctioned bus advertising addressed any public issue at all.
Although Lehman himself could not show that he had suffered
any harm, the question remains whether the City's policy resulted
in viewpoint discrimination in other instances. The dissent implied
that the line drawn by the City violated viewpoint neutrality inasmuch as merchants could hawk their wares, but those who opposed
these goods on ideological grounds could not advertise their convictions. "For instance, a commercial advertisement peddling
snowmobiles would be accepted, while a counter-advertisement
calling upon the public to support legislation controlling the environmental destruction and noise pollution caused by snowmobiles
would be rejected.
' 158
The point suggests that recognition of a dis-
tinction between commercial and noncommercial speech can result
in viewpoint discrimination and, more generally, that any attempt
to distinguish among categories of protected speech has the potential to engender discrimination.
On balance, the point seems forced. The competition between
prohibited and allowed messages suggested by the dissent's hypothetical rests on a perception of an implicit message in the snowmobile advertisement, not on its express content. One might as
well argue that any commercial advertising constitutes an implicit
endorsement of capitalism and therefore competes with exposition
of the Marxist critique of bourgeois political economy. Although
these implications may create certain tensions between speech falling into different categories of expression, the clear differences between these kinds of speech seem far more significant.
Commercial advertising, in terms of the Court's own definition
of this category of expression, looks only to induce a private relationship between a buyer and a seller and presupposes the larger
social background in which the solicited relationship will exist.15
This tacit assumption that the status quo will endure hardly
amounts to political advocacy, or indeed to advocacy of any sort.
Its expression does not seem a substantial threat to any focused
commentary on public issues. More generally, although a sensitive
168Id. at 317.
161See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561
(1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S.
748, 762 (1976).
240
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ear might detect undertones in almost all speech that would defeat
any kind of categorical distinction, it seems possible to devise categories that comprise all points of view among which significant
competition exists.160
If one accepts the conclusion that a distinction between political
and other speech does not produce any appreciable viewpoint discrimination, then the refusal of Shaker Heights to allow discussion
of public issues through bus advertising conformed to viewpoint
neutrality. If one also accepts the validity of the Court's frequent
endorsements of the unique significance of political speech, then
the City's definition of forbidden advertising obviously preserved
hierarchical neutrality as well. The City's definition of what speech
it would not permit in advertisements apparently was identical to
the Court's definition of political speech, and the City clearly
treated alike all speech in that category.
It is equally clear that the City's restriction violated both the
equal-or-greater and protected-speech neutrality rules. At least
under the Court's current first amendment jurisprudence, the constitutional value of Lehman's speech was considerably greater than
that of the commercial advertising the City permitted. Additionally, under any mainstream first amendment theory, pronouncements of a politician regarding his candidacy enjoy constitutional
protection. As a result, either the equal-or-greater or the protected-speech neutrality rule would entitle Lehman to the advantages Shaker Heights granted commercial advertising.
The reasons for not adopting either the equal-or-greater or protected-speech rule as the solution to the discrimination problem
seem evident. Whatever role they might play in resolving whether
access to a particular channel of expression is appropriate, these
rules go far beyond what is necessary to obviate the dangers of
discrimination. They require equal treatment not only of categories of speech that the Court regards as constitutionally equivalent,
160 The remarks of Professor Bork, although made in another context, are relevant here:
Any theory of the first amendment that does not accord absolute protection for all
verbal expression, which is to say any theory worth discussing, will require that a
spectrum be cut and the location of the cut will always be, arguably, arbitrary. The
question is whether the general location of the cut is justified. The existence of close
cases is not a reason to refuse to draw a line and so deny majorities the power to
govern in areas where their power is legitimate.
Bork, supra note 14, at 28.
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Content Discrimination
but also of other categories that the Court itself considers distinguishable for purposes of determining the degree of constitutional
protection.16 1
Whatever it merits as an access decision, Lehman reached the
right result on the question of discrimination. By upholding
Shaker Heights's distinction between permitted and forbidden bus
advertisements, the Court merely reaffirmed its own pronouncements that political speech stands on a separate footing from other
forms of expression. The fact that political speech enjoys special
protection under the first amendment but suffers special burdens
under the City's rules may impeach the wisdom of the Court's access holding, but it in no way undermines its discrimination result.
The Carey Case
2.
Although this article already has said much about Carey,1 6 2 a
few additional observations are in order. Unlike in Lehman, a majority of the Court was able to agree on an opinion, but much of
what was agreed on seems especially vulnerable to criticism. As
Justice Rehnquist pointed out in his dissent, the majority opinion
analyzes the Illinois statute as if it had contained an exception
only for labor speech.16 s This failure to acknowledge the significant
differences between Carey and Mosley obscures the basis of the
majority's holding. Portions of the opinion nonetheless deserve
careful attention.
A critical point in the Court's argument concerns the legitimacy
of the State's attempt to provide special protection for labor protests. The majority did not argue that this purpose could not justify the other exceptions to the statute's picketing prohibition, perhaps because this response would have admitted how different the
This last point also illustrates the inappositeness of the equal protection rhetoric that
the Court used in Mosley. The equal protection principle that "like be treated alike" cannot
apply to speech if for first amendment purposes we must regard the content of speech as
irrelevant. Unlike voting, where the Constitution regards each vote and each political candi11
date as having equal merit and therefore demands similar treatment of each by government,
see Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979); Williams
v. Rhodes, 393 U.S. 23 (1968); Baker v. Carr, 369 U.S. 186 (1962); J. Ely, supra note 14, at
116-25, a system of freedom of expression demands that government recognize the superior
value of certain kinds of speech. See notes 13-49 supra and accompanying text.
142 See notes 118-29 supra and accompanying text.
13 See note 119 supra and accompanying text.
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Illinois statute was from the ordinance involved in Mosley.,, Instead, the Court accepted the asserted purpose as valid, but held
that such a purpose could not outweigh the first amendment values implicated by the prohibited speech. According to the Court,
the labor justification "forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are
public protests over other issues, particularly the important economic, social, and political subjects about which [members of the
Committee Against Racism] wish to demonstrate." 16 5 The Court
rejected this presupposition, noting that "[p]ublic issue picketing
...
has always rested on the highest rung of the hierarchy of First
Amendment values.""
At this point, the Court clearly was contending for equal-orgreater neutrality, but its justification for doing so had little to do
with discrimination. As in Lehman, one must separate the access
and discrimination issues. With respect to access, one properly can
balance the government's interests in limiting access against both
the Committee's assertion that picketing in front of the mayor's
6
home would substantially augment the impact of its message" 7
and the State's willingness to allow picketing of far less constitutional significance at this site.6 8 These considerations, along with
others such as the traditional resort to street picketing by protest
movements, the availability of legitimate scheduling devices to
limit the disruption caused by such picketing, and the overall importance of the speech at issue, very well might lead to a conclusion that the Committee Against Racism should enjoy a reasonable
right of access to the mayor's doorstep. This right of access, however, would be related only indirectly to the access enjoyed by
others, and indeed might exist even if no other residential picketing were allowed."6 "
In particular, the majority would have had to explain why a distinction between
speech related to the function of the residence and all other speech would have raised a
constitutional problem. See note 116 supra and accompanying text. Instead, it posed several
examples to illustrate the alleged underinclusiveness of the statute's exceptions, each of
which, however, seemed in fact to fall within one of them. See 447 U.S. at 468 n.13, 469.
:65 447 U.S. at 466.
16 Id. at 466-67.
167 Id. at 469 n.13.
168 See note 155 supra and accompanying text.
169 One presumably would not allow an access right
to depend only on the availability of
the particular place to other speakers both because of the general relevance of other factors,
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Content Discrimination
As an access case, then, Carey seems completely defensible. The
equal-or-greater neutrality rule that the Court seemed to apply
may constitute a practical tool for resolving the issue of access to
traditional channels of political expression. The discrimination
principle on which the rule rests, however, is distinct from the access issue. The problem with Carey is that the Court obscured this
distinction. It purported to address the question of discrimination
generally and laid down a rule that by its terms applies to cases
where access problems do not exist. As argued above, resort to an
equal-or-greater rule of this scope seems contrary to logic and at
odds with those Court decisions that recognize separate categories
of speech that enjoy different degrees of constitutional pro17 0
tection.
The question remains whether the Carey majority could have
reached its result by relying solely on a viewpoint or hierarchical
neutrality rule. Unlike Mosley, where at least a case can be made
for the existence of viewpoint discrimination, no aspect of the tolerated residential picketing seems competitive with the prohibited
speech. Nor is it clear that the exceptions to the Illinois statute
violated hierarchical neutrality. As the Court interpreted the statute, each of the exceptions related to private commercial disputes
rather than to political questions, and the Committee Against Racism's speech, as the Court noted, occupied the highest rung in the
17 1
first amendment hierarchy.
In sum, Carey seems best understood as a right-of-access case
masquerading as a discrimination decision. As an access decision,
the opinion can be faulted for its failure to reveal its reasoning and
its limits, but not necessarily for its result. One cannot tell whether
see note 143 supra, and because it seems somewhat unsatisfactory to allow an access right to
rest on a decision that the government remains free to reverse. This last point was used by
commentators to criticize Mosley's apparent reliance on a discrimination rather than an
access rationale. See Note, The Public Forum: Minimum Access, Equal Access, and the
First Amendment, 28 Stan. L. Rev. 117, 141 n.157 (1975); Note, Equal but Inadequate Protection: A Look at Mosley and Grayned, 8 Harv. Civ. Rights-C.R.-C.L. L. Rev. 469 (1973).
See also Westen, supra note 12, at 562.
170 See notes 43-49 supra and accompanying text.
M The statute's exception for picketing "the place of holding a meeting or assembly on
premises commonly used to discuss subjects of general public interest," 447 U.S. at 457
(quoting Ill. Rev. Stat. ch. 38, § 21.1-2 (1977)), on its face would allow some political speech.
The majority, however, analyzed the statute as if this exception did not exist. See, e.g., id. at
469 (statute would not allow picketing of residence used by county chairman to meet with
district captains for discussion of controversial issues).
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the decision applies only to mayors' residences and only with respect to political speech, or whether the Court intended a broader
access right, but later cases can address these issues. As a discrimination decision independent of the access issue, however, Carey
seems indefensible.
3.
The Metromedia Case
Perhaps not surprisingly, the most recent of the Court's major
content-discrimination cases is its most confused. Metromedia,
Inc. v. City of San Diego17 2 presented a first amendment challenge
to a San Diego ordinance that regulated outdoor advertising displays. Different restrictions applied depending on whether the
message of the sign related to the premises on which it was located. "Off-site" billboard displays were forbidden except for holiday decorations, public service signs limited to conveying the time,
temperature, and news, and temporary political campaign signs.17 3
"On-site" signs were allowed to advertise goods or services manufactured or sold on the premises, or to contain religious or historical identification.1 74
Seven of the Justices agreed that San Diego could prohibit all
off-site commercial advertising in spite of its tolerance of on-site
advertising. Four of these seven, plus Justices Brennan and Blackmun, nevertheless regarded the ordinance as unconstitutional, but
their reasons differed significantly. Chief Justice Burger, Justice
Rehnquist, and Justice Stevens would have upheld the ordinance
on its face, although Justice Stevens suggested that a constitutional problem might emerge in the application of the ordinance.
Not only did the Justices disagree as to outcome, but they could
172 101 S. Ct. 2882 (1981).
13 Id. at 2885 n.1, 2886 & n.3 (quoting San Diego Ordinance No. 10795). See id. at 2916
n.25 (Stevens, J., dissenting) (noting exceptions eliminated from ordinance by state court
construction). Although none of the opinions made this point, the exception for political
campaign signs also may have been excised from the ordinance through judicial construction. The California Supreme Court limited application of the ordinance to signs "permanently" attached to the ground or some structure. Metromedia, Inc. v. San Diego, 26 Cal. 3d
848, 856 n.2, 164 Cal. Rptr. 510, 513 n.2, 610 P.2d 407, 410 n.2 (1980). The political sign
exception, by contrast, applied only to "temporary" signs that were "erected or maintained
for no longer than 90 days." San Diego Ordinance No. 10795, § 101.0700(F)(12). One could
construe the ordinance, however, as applying to displays temporarily maintained on permanent billboards.
174 See 101 S. Ct. at 2885 n.1, 2886 & n.3.
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Content Discrimination
not reach a consensus even as to the issue presented by the case.
For Justices Brennan and Blackmun, the case in "practicaleffect"
involved a total ban on billboard advertising, and as such, they
would have found the ordinance invalid. 17 5 Chief Justice Burger
and Justices Rehnquist and Stevens agreed that the question of a
total ban was before the Court, but they would have upheld the
restriction. 176 Justices Stewart, White, Marshall, and Powell re-
on the orfused to reach the total ban issue and relied exclusively
1
dinance's content discrimination to invalidate it. "
Finding order in this melange of conflicting perspectives and
opinions seems almost a Sisyphean task. Perhaps the most fascinating aspect of the case, however, is precisely the variety of discrimination rules propounded by one or more Justices. By tracing
through each of these rules as it was developed in the case, one
may obtain a better understanding of this complex decision.
a. The Dissenters: Viewpoint Neutrality as the Exclusive Test
The narrowest discrimination rule was that advanced by Justice
Stevens and implicitly adopted by Chief Justice Burger and Justice Rehnquist.1 7 8 Justice Stevens approached the case differently
from his Brethren by asserting that the plaintiffs-billboard companies-lacked standing to attack the restrictions imposed on onsite advertising displays.M For him, the case involved only a
sweeping ban on billboard advertising with a few narrow exceptions. He began by asking whether complete elimination of this
channel of expression would violate the first amendment. After
concluding that it would not, for reasons that fall outside the scope
of this article,1 80 he then examined the exceptions. He found only
the limited tolerance of political campaign advertising troubling.
175 Id.
at 2901 (opinion concurring in the judgment) (emphasis in original).
176 Id. at 2910 (Stevens, J., dissenting); id. at 2918 (Burger, C.J., dissenting); id. at 2924-
25 (Rehnquist, J., dissenting).
1 Id. at 2896 n.20 (plurality opinion).
178 Id. at 2916-17 (Stevens, J., dissenting). See id. at 2920-21 (Burger, C.J., dissenting)
("San Diego has not attempted to suppress any particular point of view or any category of
messages."); id. at 2924-25 (Rehnquist, J., dissenting).
179 Id. at 2910-13 (Stevens, J., dissenting).
"'0 Justice Stevens based his access decision on the legitimacy of the government's economic and aesthetic interests and the adequacy of the overall communication market in the
vicinity. Id.
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He observed that "if there were reason to believe that billboards
were especially useful to one political party or candidate, this exception would be suspect."181 Because no evidence of such hidden
favoritism existed, and because, for him, only viewpoint discrimination presented a constitutional problem, Justice Stevens would
182
have sustained the ordinance.
b. The Plurality:Equal-or-Greaterand HierarchicalNeutrality
The plurality opinion of Justice White, joined in its entirety by
Justices Stewart, Marshall, and Powell, 83 is the most convoluted
of the five opinions in the case. The plurality employed a different
analysis than did Justice Stevens and relied on alternate holdings
that suggested three different discrimination rules. Rather than
distinguish billboards from on-site signs, the plurality regarded all
outdoor display signs as fungible. It first sustained the ordinance's
distinction between commercial advertising relating to the premises and other commercial speech. After determining that a complete ban of commercial advertising would not violate the Constitution, the plurality reasoned that "[i]t does not follow from the
fact that the city has concluded that some commercial interests
outweigh its municipal interests in this context that it must give
similar weight to all other commercial advertising. ' On its face,
this argument permits the government to favor one form of commercial speech over its competitors. The plurality apparently
would tolerate even viewpoint discrimination if it were limited to
commercial speech. This position, although inconsistent with general first amendment principles, is defensible to the extent it reflects a convergence of the constitutional protection given commercial speech and that provided other economic interests subject to
181 Id. at 2917. Because of his standing determination, Justice Stevens did not reach the
question whether the restrictions of on-site signs were constitutional.
182 Id. Justice Stevens has developed his position on viewpoint discrimination in several
cases. See Widmar v. Vincent, 102 S. Ct. 269, 278-80 (1981) (Stevens, J., concurring in the
judgment); NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 618-19 (1980) (Stevens, J., concurring in the judgment); Consolidated Edison Co. v. Public Serv. Comm'n, 447
U.S. 530, 544-48 (1980) (Stevens, J., concurring in the judgment); FCC v. Pacifica Found.,
438 U.S. 726, 745-46 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-73
(1976).
183 Justice Stevens also joined those portions of the plurality's opinion that upheld the
ordinance's distinctions among kinds of commercial speech.
184 101 S. Ct. at 2895.
1982]
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247
185
governmental regulation.
The plurality next examined the distinctions drawn by the ordinance among various forms of noncommercial speech and between
commercial and noncommercial speech and found two reasons for
finding these distinctions unconstitutional. It first noted that the
City did tolerate some commercial speech on fixed display signs by
permitting on-site advertising. It then held that "the city may not
conclude the communication of commercial information concerning
goods and services connected with a particular site is of greater
value than the communication of noncommercial messages."1 8 Its
reasoning constitutes a variant of the equal-or-greater rule: although the government may discriminate relentlessly among commercial messages, the tolerance of any commercial speech requires
similar treatment of all speech of superior value.
The plurality also observed that the ordinance permitted religious symbols, commemorative plaques, signs conveying the time,
temperature, and news, and temporary political campaign signs,
but allowed no other "noncommercial or ideological" messages.187
These distinctions represented another form of impermissible discrimination: "Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial
zones, San Diego must similarly allow billboards conveying other
noncommercial messages throughout those zones."1 88 The rule appears to be one of hierarchical neutrality for the category of "non18 9
commercial" speech.
For the reasons already discussed in this article, the plurality's
choice of an equal-or-greater neutrality rule seems questionable.190
As in Carey, the plurality may have attempted to reach an access
165 For a persuasive argument that commercial speech should receive no greater protection than any other form of commercial activity, see Jackson & Jeffries, supra note 22. See
also Baker, supra note 34; Burger Court, supra note 29, at 458-61. But see Redish, The First
Amendment in the Marketplace: Commercial Speech and the Values of Free Expression, 39
Geo. Wash. L. Rev. 429 (1971).
:8 101 S. Ct. at 2895.
187 Id. at 2896.
I" Id.
169 Justice White, the author of the Metromedia plurality opinion, has been the most
reluctant of the Justices to accept unique protection for the category of political speech. See
note 39 supra.
190 See notes 167-70 supra and accompanying text.
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result through a rule couched in terms of discrimination. 191 Although privately owned, billboards are a useful channel of expression, and an attempt to eliminate them raises some of the same
problems as does restriction of more traditional channels. Some
support for the hypothesis that the plurality really was grappling
with an access issue comes from its treatment of Lehman, which it
fact situation involving a "governdistinguished as a "unique"
192
ment-created" forum.
The nature of the forum, however, suggests a significant problem
lurking in the plurality's opinion. Because billboards are not "government-created" but rather lie in private hands, the question of
access to billboards is considerably more complex than the question of access to streets and other government-controlled fora. Unless the Court intended to enforce access rights onto private property, a course it generally has avoided,193 any access claim it might
have entertained would have been qualified by the retained right
of the private owners to refuse to sell advertising space. The inability or disinclination of the courts to control the terms of access, in
turn, undercuts the argument for judicial abrogation of governmental restrictions. By substituting discrimination rhetoric for access analysis, the plurality may have overlooked the difficulty of
the access question and may have reached a result it could not
have supported if it had asked the right questions.
The plurality's requirement of hierarchical neutrality, by contrast, seems defensible, but problematic. At the least, the differential treatment of campaign advertising and other discussion of
public issues presented a discrimination issue different from that
in Lehman. Unlike Shaker Heights, San Diego treated some political points of view differently from others. It gave electoral candidates an advantage in relation to others seeking to promote more
fundamental political or social changes. Although the Court had no
evidence that such discrimination actually occurred, the risk of poll" See id.
192 101 S. Ct. at 2896 n.19.
See Hudgens v. NLRB, 424 U.S. 507 (1976). A channel of communication in private
hands differs significantly from one in the public domain, especially with respect to the
government's ability to ration access. See note 155 supra. The Court generally has rejected
first amendment claims of access to private property in cases where the owner opposed
them. As a result, monitoring private owners' decisions as to who may use billboards, and
for what purposes, would be exceedingly difficult.
293
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249
tential discrimination may have provided a sufficient reason to invalidate the distinction.
Viewed from this perspective, the effects of viewpoint and hierarchical neutrality rules tend to converge. A viewpoint rule demands equality of treatment of all speech that can be seen as competitive. A hierarchical rule makes the same demand, but in
addition assumes that all speech within a particular hierarchy is
mutually competitive. In the context of overbreadth challenges,
where the party attacking a statute need not have suffered from
intolerable discrimination himself,194 the practical effect of the two
rules may be identical due to the cognizability of hypothetical
harms.
On the other hand, the more cautious posture adopted by Justice Stevens is not without merit. Legitimate reasons can exist for
distinguishing speech of similar constitutional significance but addressed to different subjects. Systematic, organized political debate
cannot proceed without an agenda and a requirement that speakers stick to the topic. 1 9 5 Imposition of such rules does not necessa-
rily suggest a government attempt to rig public debate. Room
should remain for inquiry into the neutrality of the government's
reasons for imposing particular topical restrictions in light of the
restrictions' potential for creating viewpoint discrimination and alternate opportunities for expression about the restricted topics.1 9
c.
The Concurrence:Protected-SpeechNeutrality
Justice Brennan, in an opinion joined by Justice Blackmun,
agreed with the plurality's conclusion that San Diego's ordinance
violated the first amendment. In most respects, however, his position was further from that of the plurality than the plurality's was
from the dissenters'. Like the dissenters, Justice Brennan believed
the ordinance for all practical purposes constituted a complete
prohibition of billboard advertising, but he reached the opposite
19 See, e.g., Gooding v. Wilson, 405 U.S. 518, 520-21 (1972); Coates v. Cincinnati, 402
U.S. 611, 616 (1971); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965).
115 See A. Meiklejohn, supra note 3, at 24-28.
"' See Metromedia, 101 S. Ct. at 2915 (Stevens, J., dissenting); Madison School Dist. v.
Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 n.8 (1976). Cf. Democratic
Party of United States v. Wisconsin, 450 U.S. 107, 131-33 (1981) (Powell, J., dissenting)
(suggesting mainstream and splinter political parties enjoy different constitutional status for
purposes of state regulation of their activities).
250
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conclusion as to its constitutionality. 97 As with the dissenters, the
merits of Justice Brennan's resolution of this access issue fall
outside the scope of this article.
Justice Brennan went on to address the Court's premise that a
ban on only commercial billboard advertising would pass constitutional muster. Although he conceded that the Court's decisions
had recognized a distinction between commercial and noncommercial speech, he insisted that the plurality had erred "in assuming
that a governmental unit may be put in the position in the first
instance of deciding whether the proposed speech is commercial or
noncommercial."1" 8 In his view, application of this standard would
invite the same unacceptable discrimination as the standardless
permit cases had sought to prohibit.1 9 9
In the terminology of this article, Justice Brennan advocated a
rule of protected-speech neutrality. The arguments he employed in
Metromedia suggest exactly why this rule is an implausible solution to the discrimination problem. There is no readily apparent
reason why courts are better qualified than other governmental
bodies to distinguish commercial from noncommercial speech, especially given the relatively clear functional standard on which the
Court has based the distinction.20 Justice Brennan's assertion that
the line is so vague as to invite unfettered discretion, if true, would
imply a disturbing observation about the Court's own decisionmaking. This may be precisely what Justice Brennan intended, however. One suspects that the root of Justice Brennan's objection
may be not a concern about the inability of nonjudicial officials to
distinguish between commercial and noncommercial speech, but
rather resistance to the use of the distinction in the Court's own
first amendment analysis.2 0 1
10 101 S. Ct. at 2901-06 (Brennan, J., concurring in the judgment). Justice Brennan did
not discuss the problem of controlling access decisions by private owners discussed in note
193 supra. He would not have allowed any ban on billboards except as part of a comprehensive and entrenched beautification plan.
198 Id. at 2907 (emphasis in original).
1 0 Id. at 2907-09. See notes 58-67 supra and accompanying text.
2oo See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561
(1980) ("The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience.").
201 Justice Brennan expressed just such resistance in Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm'n, 447 U.S. 557, 572 (1980) (Brennan, J., concurring in the judgment)
(rejecting majority's distinction between commercial and noncommercial speech).
1982]
Content Discrimination
V.
CONCLUSION
A close reading of the Court's decisions suggests that only rarely
has it departed from an exclusive rule of viewpoint neutrality, and
then usually it has done so to avoid a difficult access question. To
the extent the Court has disguised access questions as discrimination problems, it has both confused analysis of the access problem
and suggested the existence of unacceptably broad antidiscrimination rules. Nowhere is this confusion and the potential for misleading signals more evident than in Metromedia.
A careful examination of the problem of content discrimination
in light of traditional first amendment jurisprudence indicates that
the Court has said far more than it has meant when it has proclaimed the impermissibility of distinctions based on the content
of speech. To the contrary, distinguishing speech according to its
content is the only intelligible way to commence any first amendment analysis. The distinctions will vary with the substantive values one believes underlie the amendment, but the necessity of
these distinctions will not.
The pattern of the Court's decisions over the last decade displays considerable sensitivity to differences in the content of
speech. What the Court has not done yet is to identify the wellsprings of its concerns about content and particularly their relationship to the problem of discrimination. Until it does, the Court
is likely to trip over its own rhetoric and to sow confusion
elsewhere.