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- Title
UNCERTAINTY IS THE ONLY CERTAINTY: A FIVE-CATEGORY TEST TO CLARIFY THE UNSURE BOUNDARIES BETWEEN CONTENT-BASED AND CONTENT-NEUTRAL RESTRICTIONS ON SPEECH.
- Authors
Sekulow, Jay Alan; Zimmerman, Erik M.
- Abstract
The lines between content-neutral, content-based, and viewpoint-based restrictions on speech remain unclear in key respects despite the critical importance that these characterizations hold within First Amendment jurisprudence. This Article will analyze the law concerning the boundaries between these categories of laws with respect to speech activities in public and limited forums. The Article argues that the following five categories of laws are inherently suspect under the Free Speech Clause and should be treated as such: 1. The government's actual purpose is to suppress speech based on its content or viewpoint, or to impose subjective editorial control over content or viewpoint. 2. The government interest that the law is intended to further relates to an aspect of the direct or emotive communicative impact of regulated expression, rather than the manner of its delivery. 3. The law, on its face, treats speakers differently due to the content or viewpoint of their message, or excludes from its coverage speech or conduct relating to different subject matters or viewpoints that pose similar threats to the government's asserted interests. 4. The actual or inevitable effect of the law is to prevent speakers espousing certain messages from effectively reaching their intended audience, such as by targeting a particular location or manner of expression that is closely tied to one subject matter or viewpoint. 5. The law lends itself to use for content- or viewpoint-discriminatory purposes, or there is a realistic possibility that official suppression is afoot. Formal recognition by the Court that laws of this nature should be subject to strict scrutiny would bring much needed clarity to this area of law and would help to ensure that freedom of speech receives the robust protection that it deserves, while affording the government ample room to enact reasonable, narrowly tailored laws that address legitimate concerns.
- Subjects
SPEECH -- Law &; legislation; CLAUSES (Law); APPELLATE courts; UNITED States. Constitution. 1st Amendment; MCCULLEN v. Coakley (Supreme Court case)
- Publication
Emory Law Journal, 2015, Vol 65, Issue 2, p455
- ISSN
0094-4076
- Publication type
Article