THE FIRST AMENDMENT AND CONTENT DISCRIMINATION III*people.virginia.edu/~pbs/68VaLRev203.pdf · THE...

THE FIRST AMENDMENT AND CONTENTDISCRIMINATION

Paul B. Stephan III*

As an admirer, friend, and former employee of Justice Pow-ell, I can bring more sincerity than elegance to my expres-sion of tribute to him. For me, as for all of his clerks, he hasbeen an inspiration, a model of honor, integrity, judgment,and insight. By example and through kind and patient in-struction he has been my teacher. The failings of the pre-sent essay are attributable entirely to the inadequacy of thepupil.

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, itsideas, its subject matter, or its content."' As often happens withringing declarations of sweeping principles, this statement ob-scured more than it enlightened. It embraced two significantly dif-ferent strands of first amendment analysis without distinguishingthem. One strand was well established in the case law and whollyjustifiable; the other was entirely new and, I believe, indefensible.

The principle that the Constitution forbids government discrimi-nation against the expression of particular messages or ideas, thefirst part of the ringing declaration, was not new. It had emergedin the cases soon after the modern Court had begun taking thefirst amendment seriously.2 Scholars readily had supported theprinciple.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 JohnC. Jeffries, Jr., who have taught with me many of the cases that are the subject of thisarticle. 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, JamesP. Petrila, and Irene B. Cramer rendered great help. Errors and shortcomings should beattributed 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

203

Virginia Law Review

government to single out Democrats for special restrictions, or tooutlaw criticism of its policies but to sanction praise.

On the other hand, the notion that the Constitution with equalforce forbids distinctions based only on the subject matter of ex-pression, or on any aspect of its content, was new. No prior Courtdecision ever had rested its result on the premise of absolute con-tent neutrality. Taken literally, this proposition means that gov-ernmental bodies must disregard all differences in the content ofexpression and therefore must treat all speech as indistinguishable.Any otherwise permissible restriction on speech must apply to allexpression, regardless of subject matter, even if a particular re-striction seems justified solely by its impact on one particular cate-gory of speech. Carried to its logical extreme, this rule of absolutecontent neutrality would require, to take one example, that federallabor law apply uniform rules to all picketing, whether labor-re-lated or not, to ensure that no special burdens or advantages wouldattach to the content-based category of labor speech.4

Since its announcement, the constitutional principle limiting thepower of government to distinguish speech according to its contenthas played a significant role in the Supreme Court's decisions.5 Al-though the Court soon backed away from the broad statement thatthe Constitution absolutely forbids such discrimination, it has con-tinued to speak of the Constitution's "hostility" to all regulation ofthe content of speech, including government "prohibition of publicdiscussion 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) (Black-

mun, J., concurring) (questioning the limitation of the National Labor Relations Act to la-bor 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 screensvisible from the highway, Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); discussionof 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 concerningcontroversial 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 notfor labor or other commercial purposes, Carey v. Brown, 447 U.S. 455 (1980); the display onsigns and billboards of most noncommercial messages, but not of political campaign postingof a significant range of commercial advertising, Metromedia, Inc. v. City of San Diego, 101S. Ct. 2882 (1981); and the use of campus facilities by secular groups, but not by religiousspeakers, 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).

204 [Vol. 68:203

1982] Content Discrimination 205

Despite its repeated invocations of a near-absolute content neu-trality rule, the Court has not followed its own precept. Since 1972,it has refused to invalidate legislation or administrative action thatforbids political advertising, but not other messages, in a publiclyowned bus;7 that prevents the clustering of theaters featuring adultmovies, but not of other movie theaters;8 and that prohibits theradio broadcast of sexually explicit speech, but not of other mate-rial, during certain hours.9 In several cases where the principle hasseemed relevant, the Court has not considered seriously whether itapplied.10 Throughout, it has failed either to reconcile these resultswith the absolute rule it enunciated or to describe the dimensionsof the more limited rule it actually has applied.

This divergence of judicial doctrine and judicial action hasprompted confusion and concern. The lower courts have tried tointerpret the mixed signals they have received from the Court, butthe disarray of their decisions suggests the difficulty of their task.1"

7 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).S 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. Re-tail Store Employees Local 1001, 447 U.S. 607 (1980) (distinction between incitement tosecondary 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 contextof 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 advocatingeither 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 andareas 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 solici-tation 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 politicalsigns 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 isunconstitutional); 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 religiousactivities 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 ex-empts political and religious material is unconstitutional), with Taxation With Representa-tion v. Blumenthal, 1981-1 U.S. Tax Cas. 9329 (D.C. Cir. Apr. 14, 1981) (tax advantagegiven veterans organizations but denied all other groups involved in political activities isconstitutional), petition for rehearing en banc granted and opinion vacated, June 11, 1981,

Virginia Law Review

Scholars have sought to guide the Court, but almost without ex-ception, they have adopted the premise that some constitutionallimits must exist on discrimination among subject matters or otherbroad aspects of the content of speech.12

By contrast, this article has as its thesis the proposition that abroad content neutrality rule not only obscures free speech ques-tions, but is antithetical to any rational analysis of freedom of ex-pression. The approach reflected in the Court's free speech opin-ions, and in almost every scholarly discussion of the firstamendment, posits some hierarchy of values entitled to constitu-tional protection. Such a hierarchy implies a similar ranking ofparticular categories of expression, according to the degree the ex-pression implicates the underlying values. No sensible approach tofirst amendment questions can dispense with such a hierarchy, al-though the particular categories and the degree of protection theyreceive vary with the theory adopted. Yet, a broad content neutral-ity rule ignores any such hierarchy and requires that all speech re-ceive the same treatment, regardless of the values implicated. Inprinciple, then, a broad content neutrality rule is indefensible.

This article first reviews generally the traditional formulations offirst amendment values that have guided the courts and scholars.It then traces the development of the content neutrality rule in theCourt's decisions. Faced with the incoherence of these results, itanalyzes the various rules against content discrimination that logi-

reargued, Oct. 14, 1981; Taxation With Representation v. United States, 585 F.2d 1219 (4thCir. 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 constitu-tional); Jewish Defense League v. Washington, 347 F. Supp. 1300 (D.D.C. 1972) (three-judgecourt) (ban of demonstrations bringing foreign government "into public disrepute" within500 feet of embassy is constitutional); Sussli v. City of San Mateo, 120 Cal. App. 3d 1, 173Cal. Rptr. 781 (Ct. App.) (prohibition of posting of political signs on public property isconstitutional), 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, 34Vand. L. Rev. 265 (1981); Stone, Restrictions of Speech Because of Its Content: The Pecu-liar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978). But see Perry, Mod-ern 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 alsoRedish, 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 comple-tion of this article so I have been unable to take full advantage of his many insights.

[Vol. 68:203

Content Discrimination

cally can be derived from first amendment principles. Finally, itexamines those cases in which the broad content neutrality rulehas been at issue, and considers the extent to which the case re-sults conform to a narrower and more justifiable rule.

I. FIRST AMENDMENT DOCTRINE

One would err to speak of first amendment doctrine as if a well-defined consensus existed about the principles underlying firstamendment analysis. Anyone who follows the law must agree withProfessor Emerson's observation that "[t]he outstanding factabout the First Amendment today is that the Supreme Court hasnever developed any comprehensive theory of what that constitu-tional guarantee means and how it should be applied in concretecases."1 s Scholars have not achieved any greater success in devel-oping a universally accepted first amendment theory.1'4 Yet, inspite of the wide range of views on the nature of the protectiongranted by the first amendment, common themes have emerged,and something of a mainstream has developed in scholarly litera-ture. What follows is necessarily a simplistic and selective descrip-tion of these ideas.

Perhaps the leading theme in the Supreme Court's cases is theprimacy of political speech. The expression of views on matters ofpublic controversy, to quote a recent decision, "has always restedon 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 Con-

sent (1975); Z. Chafee, Free Speech in the United States (1954); J. Ely, Democracy andDistrust 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 theFirst Amendment Freedom of Speech, 25 U.C.L.A. L. Rev. 964 (1978); BeVier, The FirstAmendment 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, 1977Am. B. Found. Research J. 521; Bork, Neutral Principles and Some First AmendmentProblems, 47 Ind. L.J. 1 (1971); Brennan, The Supreme Court and the Meiklejohn Interpre-tation of the First Amendment, 79 Harv. L. Rev. 1 (1965); Kalven, The New York TimesCase: 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, OnFreedom of Expression, 88 Yale L.J. 105 (1979).

" Carey v. Brown, 447 U.S. 455, 467 (1980).

1982] 207

Virginia Law Review

lies in its protection of debate of public issues."6 Chief JusticeHughes voiced this theme when in two important early decisionshe described the first amendment as directed "to the end that thegovernment may be responsive to the will of the people." 17

Through the decades, numerous opinions of the Court have madesimilar declarations. 8

Scholarly support for the primacy of political speech also isabundant. Professor Meiklejohn, the foremost exponent of the po-litical speech principle, argued that complete freedom on the partof the public to discuss matters relating to government is a precon-dition of a representative democracy such as the Constitution es-tablished in our country. 9 This freedom is necessary both gener-ally to promote the best choices by the electorate and particularlyto safeguard against the government's attempts to subvert demo-cratic supervision of its actions. 20 Most important for a theory thatasserts a judicially enforced right, its proponents have argued thatthe judiciary is best suited to implement the protection of politicalspeech because it is the branch of government least interested insuppressing it. 21

Acceptance of the basic tenents of the Meiklejohn theory is sowidespread that, in the words of Professors Jackson and Jeffries,"the fighting issue is not the validity of Meiklejohn's insight butrather its exclusivity. '22 On occasion, the Court has made state-ments to the effect that, although "a central purpose of the FirstAmendment '[is] to protect the free discussion of governmental af-fairs,'" its "cases have never suggested that expression about phil-osophical, social, artistic, economic, literary, or ethical matters-totake a nonexhaustive list of labels-is not entitled to full First

16 New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).17 De 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. Chi-cago, 337 U.S. 1, 4 (1949); Bridges v. California, 314 U.S. 252, 270 (1941); Thornhill v. Ala-bama, 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 Amend-

ment, 65 Va. L. Rev. 1, 11 (1979).

208 [Vol. 68:203


Amendment protection. 23 This assertion is illustrated best in thearea of obscenity, where the Court has drawn the line between pro-tected and unprotected speech at the point where the expressionlacks any substantial social value, not where it lacks only politicalrelevance. 24 Outside the area of political speech, however, theCourt's decisions reflect confusion of purpose and uncertaintyabout the meaning of "full" first amendment protection.2 5

Scholars also disagree as to whether the political speech princi-ple can justify protecting more than political speech. Meiklejohnand his colleague, Professor Kalven, believed that the protection ofdemocratic self-government means protection of those forms of ex-pression that enhance the electorate's "capacity for sane and objec-tive judgment. ' 26 Professor Bork has disagreed with the extension,arguing that other, obviously unprotected activities form personal-ity and attitudes as much as does intellectual, nonpoliticalspeech.27 Professor BeVier has argued that although the logicallimits of the political speech principle do not comprise nonpoliticalspeech, considerations of practicality arising from the implementa-tion of the principle may justify some extensions.2

Other scholars, dissatisfied with the limits of the Meiklejohntheory and the Court's uncertain efforts to protect nonpoliticalspeech, have sought to develop different approaches to supplementthem. Most prominent among these is Professor Emerson's "gen-eral theory" of the first amendment.29 Although he has acceptedMeiklejohn's observations about the importance of politicalspeech, Emerson has posited an independent first amendmentvalue in the individual's achievement of self-fulfillment throughexpression." 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 Thea-tres, 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.

1982]

Virginia Law Review

theory when in one case it described the first amendment asdesigned "[t]o permit the continued building of our politics andculture, and to assure self-fulfillment for each individual." ' Emer-son based his argument for judicial protection of the self-fulfillingaspects of speech not on the historical meaning of the first amend-ment or the implications of constitutional structure, but rather onthe historically successful role of the Court in enforcing analogousrights.

3 2

Although I must admit some reservations about the validity, butnot the elegance, of Emerson's contributions to first amendmenttheory,3 one observation holds true about both his andMeiklejohn's approaches. Neither argues that the phenomenon ofspeech as such merits constitutional protection. Rather, each con-tends that certain forms of speech and other expression advanceinterests safeguarded by the Constitution. For Meildejohn,whether a particular instance of speech advances protected inter-ests depends directly on the content of the speech, i.e., on whetherit involves a matter within the scope of political debate. For Emer-son, the path has an extra turn, but the destination is the same.His theory protects "expression," but not "conduct," and the linebetween the two is drawn after, among other things, a functionalinquiry about the purpose served by the speech at issue. This in-quiry in turn can be resolved only by reference to the content ofthe speech.

34

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).32 T. Emerson, supra note 13, at 13-14. Although the Meiklejohn and Emerson analyses

have not exhausted the potential interpretations of the first amendment, they havepredominated. For variations on these broad themes, see generally the authorities cited atnote 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 protec-tion 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 judicialenforcement of this right, see Bork, supra note 14, at 1-4, and the tension that exists be-tween the antidemocratic nature of his approach and the democratic goals of the politicalspeech principle, see BeVier, supra note 14, at 322.

- See T. Emerson, supra note 13, at 18. To take one example, Emerson draws the linebetween expression and conduct so as to exclude speech limited to commercial transactionsfrom the scope of protected expression. See id. at 311; Burger Court, supra note 29, at 458-61. See also Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa L.Rev. 1 (1976).

210 [Vol. 68:203


One can make a similar observation about any plausible theoryof first amendment rights. Putting aside for the moment the ques-tion of legitimacy, and assuming no constraint on the choice of val-ues that the Court might wish to pursue through protection ofspeech, one could not devise a rational system of freedom of ex-pression without differentiating among kinds of speech accordingto content. Even a theory that asserts the primacy of communica-tion as such (including, to be rigorous, protecting with equal forcecommunication of opposition to a bill before Congress, false testi-mony in a court of law, betrayal of the nation, and a proposal tokill the President or to set prices at a certain level) distinguishesbetween speech that is intelligible to its audience and speech thatis not. 5 The only theory that, as a matter of principle, regards allspeech as indistinguishable is one that regards the phenomenon ofspeech itself as a worthy end of constitutional protection. Such aclaim extends defense of individual autonomy to the point of totalsolipsism and seems preposterous on its face. It necessarily rejectsthe premise that government depends on the maintenance of cer-tain social values and substitutes a bizarre physiological or experi-ential criterion of value. It also defies bare logic. If individualshave an absolute right to speak or, more generally, to engage inexpression, regardless of its significance to anyone else, how cansociety or, more precisely, the courts consistently retain the powerto distinguish expression from anything else?

The notion that the constitutional value of speech varies accord-ing to its content has not been lost completely on the Court. In anopinion containing one of the more unqualified statements of thebroad content neutrality rule, the Court in a footnote admittedthat some of its own decisions had attached great significance tothe content of speech.36 Whether an instance of expression fallsinto the category of libel, offensive speech, commercial speech, orobscenity determines the degree of protection it receives.87 Select-

3' Although the position outlined in the text may seem extreme and unrealistic, exactlysuch a distinction between communicative and uncommunicative speech seems to underliethe first amendment analysis of at least some Justices. See, e.g., Metromedia, Inc. v. City ofSan Diego, 101 S. Ct. 2882, 2890 (1981) (plurality opinion); First Nat'l Bank v. Bellotti, 435U.S. 765, 805-07 (1978) (White, J., dissenting).

' Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 n.5 (1980).37 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);

1982]

212 Virginia Law Review [Vol. 68:203

ing the proper category, of course, requires an inquiry into the con-tent of the speech.

For purposes of illustration, the example of defamation servesadmirably. Under the rules developed by the Court, speech expres-sing only ideas cannot be punished by libel or slander actions, butin certain instances, speech containing statements of fact can.3s

The decisionmaker must determine whether the speech containedstatements of fact, and if so, whether these statements were falseand defamatory, and to whom they referred.39 False and defama-tory statements about a public figure cannot be punished withoutproof of purposeful lying or reckless disregard for the truth.40 Falsestatements about private individuals may result in liability upon afinding of negligence. 1 Moreover, the thrust of recent decisionssuggests that if false statements about private persons were toarise entirely in a commercial context, the government could im-pose some kinds of liability without any finding of fault.42 Theserules, taken together, describe a constitutional formula in whichthe independent variable is the content of speech, and the depen-dent variable is the degree of constitutional protection.

This constitutional formula accomplishes two things: it distin-guishes protected speech from wholly unprotected speech, and itdivides protected speech into categories of different constitutionalsignificance. These two functions require separate justification.Although some scholars concede the necessity of making distinc-tions on the basis of content between protected and unprotectedspeech, they doubt the wisdom of assigning protected speech tocategories that enjoy different levels of protection. These criticsadmit that the Court engages in the practice of categorizing, butargue that such distinctions encourage judicial manipulation andresult in underprotection of speech. In their view, a hierarchial,categorical system of protection too readily invites judicial accept-

Gertz 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 allspeakers. See Hutchinson v. Proxmire, 443 U.S. 111, 133-36 (1979).

42 See Friedman v. Rogers, 440 U.S. 1, 9 (1979).


ance of governmental justifications for the suppression of less pro-tected speech by allowing the Court to cabin the effect of its deci-sions. They assert that the Court looks uncritically at suchjustifications because of a false sense of security that the resultwould be different if more significant speech were involved.43

On balance, however, the experience of the Court belies thesecriticisms. For the most part, the concept of less-protected speechhas been used to expand first amendment protection, not to con-tract it. Again, the best illustration may be the law of defamation.Before New York Times Co. v. Sullivan," it appeared reasonablywell settled that because of the strong governmental interest incompensating injuries to reputation, defamatory falsehoods mer-ited no first amendment protection.45 In New York Times, theCourt recognized that apprehension of the risk of errors in distin-guishing falsehoods deterred some protected speech.4" The case re-sulted in a compromise that gives significant protection to defama-tory falsehoods, but that does not remove completely the power ofthe government to require compensation for the injuries theycause.

47

The point may be generalized. Strong arguments can be madeagainst forcing the Court toward extreme choices in the formula-tion of constitutional doctrine. If the Court could not give lesserprotection to categories of speech of only moderate constitutionalsignificance, it probably would be less inclined to honor the strate-gic and pragmatic reasons for extending safeguards to speech in-trinsically lacking in constitutional value.48 The result would be ei-

43 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 defamationof indisputably private figures. The development of constitutional protection for incitementof unlawful conduct and commercial speech also has conformed to this pattern. CompareVirginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 (1976) (commercialspeech 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 ofthe first amendment), and Whitney v. California, 274 U.S. 357 (1927) (speech tending toincite unlawful action is unprotected, whether action is imminent or not).

48 For a discussion of the distinction between speech protected in principle and speech

1982]

Virginia Law Review

ther a more restricted concept of protected speech or a dilution ofthe level of protection given to the most significant speech. Thatthe Court may not make the right distinctions, a fear that seems tounderlie the criticism of categorical analysis, does not mean that itshould not attempt to do so.4 1

In sum, once one concedes the implausibility of a constitutionalprinciple that regards all expression as equal in value regardless ofits content, one must confront the task of making distinctionsbased on the content of speech as a necessary aspect of definingthe goals the first amendment is to serve. The Court has proceededa considerable way in this endeavor, although both the distinctionsand the purposes it has perceived are far from clear. For the pur-pose of this article, the wisdom of the particular choices the Courthas made is not nearly as important as the fact that it has feltcompelled to make them.

The question remains whether governmental bodies other thancourts are entitled to make distinctions based on the content ofspeech. An affirmative answer seems obvious, but the broad con-tent neutrality rule articulated by the Court dictates otherwise. Tounderstand the tension between the Court's own approach to firstamendment problems and the content neutrality rule it seems toapply to other bodies, one must trace the gradual development ofthe rule in the Court's cases.

II. CONTENT DISCRIMINATION AND THE COURT

The rule demanding content neutrality in governmental actionaffecting speech has gone through four stages of development.From the inception of modern first amendment jurisprudencethrough the early years of the Warren Court, the Court struckdown statutes and ordinances only if they discriminated againstproponents of one side of a particular public issue. In the mid-

protected 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 amend-ment analysis that recognizes certain categories of speech of differing constitutional signifi-cance or one that in every case balances the constitutional significance of the particularspeech at issue against the governmental interests in its suppression. The latter approachcan be characterized (or perhaps caricatured) as a form of categorical analysis in which thenumber of categories of speech equal the number of cases in which its suppression is atissue. See generally Farber, supra note 12; Redish, supra note 12.

[Vol. 68:203


1960's, some members of the Court began to suggest that the firstamendment requires a broader neutrality rule. Later, the BurgerCourt adopted absolute content neutrality as a constitutional rule.The Court soon discovered, however, that it could not adhere con-sistently to this rule.

A. From Grosjean to Fowler: Viewpoint Discrimination

Concern about discrimination in the context of free expressionemerged as an outgrowth of the general extension of the firstamendment undertaken by the Hughes Court. In Grosjean v.American Press,50 the Court held unconstitutional a Louisiana taxon newspapers enjoying circulations of greater than 20,000 copies aweek. Justice Sutherland's opinion for the Court leaves much to bedesired in terms of clarity and candor, but a plausible reading inlight of the record would ground its holding on the tax's discrimi-natory purpose and effect. The tax applied to only 13 of Louisi-ana's 163 newspapers, and 12 of the 13 had constituted the entirejournalistic opposition to a recent legislative proposal of GovernorHuey Long. Proponents of the tax, particularly Governor Long,identified its purpose as punishment of the maleficent twelve, withthe inclusion of the innocent thirteenth a regrettable necessity.5 1

In striking down the tax, the Court disclaimed any intention "tosuggest that the owners of newspapers are immune from any of theordinary forms of taxation for support of the government. 5 2 Be-cause the tax had the "plain purpose of penalizing the publishersand curtailing the circulation of a selected group of newspapers, '5 3

however, it could not survive constitutional scrutiny. If one focuseson this aspect of the case, Grosjean appears to stand for the pro-position that because a discriminatory tax can deter protectedspeech just as can criminal penalties, it is objectionable for thesame reasons that criminal penalties would be. Because the firstamendment obviously forbids the government to put people in jailfor opposing legislation, it also precludes fines in the form of a tax.

In the Term following Grosjean, the Court again struck down a

297 U.S. 233 (1936).51 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.

19821

Virginia Law Review

statute that limited expression because of the prior statements ofthe speaker. De Jonge v. Oregon" involved a criminal syndicalismstatute that prohibited public meetings by groups that advocatedthe forceful overthrow of the government. As construed by the Or-egon Supreme Court, the statute outlawed even meetings in whichforceful overthrow was not mentioned." The issue presented wasanalytically distinct from the question decided in Grosjean be-cause, under the contemporary interpretation of the first amend-ment, the prior speech that triggered the prohibition did not itselfenjoy first amendment protection. 6 The De Jonge Court, however,reached the same result as Grosjean, in part because it perceived adistinct value in protecting peaceable utterances on issues of pub-lic moment, even - perhaps especially - by persons otherwise in-clined to indulge in constitutionally unprotected incitements to vi-olence. Oregon's selective ban on public meetings suppressedspeech that, although unprotected, bore a close relation to speechthat served a fundamental constitutional end, and therefore hadthe effect of suppressing the latter.5 7

Following Grosjean and De Jonge, the attention of the Courtshifted to legislation that did not explicitly suppress specific view-points, but permitted public authorities to achieve this result. Al-though the facts differed, each case involved some sort of prior li-censing scheme for some form of public expression. In each casewhere the Court struck down the legislation, the standard forgranting a license was sufficiently elastic to allow the authorities toprevent the expression of unconventional views. Each case in-volved instances where this power had been exercised to the detri-ment of unpopular minorities and with respect to speech clearlywithin the core of first amendment protection.58 Although theCourt 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, 303U.S. 444 (1938).

216 [Vol. 68:203


of selective enforcement, these cases support the proposition thatthe Constitution does not tolerate legislation that grants govern-ment the discretion to burden the expression of particular ideas.59

In 1951, the Court invoked the equal protection clause for thefirst time in a standardless permit case. The town of Havre deGrace, Maryland, traditionally had allowed most groups to use itspark for meetings and demonstrations, conditioned only on ob-taining a permit in advance. The town council, however, refused arequest by Jehovah's Witnesses to use the otherwise available parkfor a Sunday bible reading. When the sect convened anyway, ar-rests and prosecutions for disorderly conduct ensued. In Niemotkov. Maryland,e0 the Court held in a brief opinion that a convictionunder these circumstances violated the Constitution. Chief JusticeVinson, speaking for the Court, declared that "[t]he right to equalprotection of the laws, in the exercise of those freedoms of speechand religion protected by the First and Fourteenth Amendments,has a firmer foundation than the whims or personal opinions of alocal governing body."61

The terseness of the Niemotko opinion and its cryptic referenceto the equal protection clause make a definitive analysis impossi-ble. What seems noteworthy about the case, however, is that theCourt probably based its concern about discrimination not on thedifferent treatment of Niemotko's actions and of other forms ofexpression generally, but rather on the narrower ground that simi-lar religious observances sponsored by other sects had taken placein the park without objection. 2 This point is highlighted by Fowlerv. Rhode Island,63 a case arising two years later, which the Courtfound "on all fours" with Niemotko." The statute struck down inFowler 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 SupremeCourt, 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 notprohibit church services in a public park and that the Jehovah's Witnesses convicted of

1982]

Virginia Law Review

As the Court analyzed the case, "a relgious service of Jehovah'sWitnesses is treated differently than a religious service of othersects. That amounts to the state preferring some religious groupsover this one."66 Niemotko, in the view of the Court that recentlyhad decided it, prohibited exactly such discrimination.6 7

Although significant differences exist among the cases, the com-mon thread running through them seems more striking. Grosjeanand De Jonge involved suppressions of the use of private channelsof communication, whereas the standardless permit cases, includ-ing Niemotko and Fowler, dealt with denials of access to publicproperty. In each case, however, the Court held unconstitutionallegislation that singled out particular ideas or beliefs for specialpenalties while leaving unfettered the expression of closely related,and in some sense directly competing, messages. What this articleterms "viewpoint discrimination," or discrimination between com-peting viewpoints over a particular issue, was the problemthroughout, and in every case the expression of the point of viewdiscriminated against fell well within the undisputed core of firstamendment protection.

B. Cox v. Louisiana: Intimations of a Broader Rule

The first suggestion that the Constitution prohibits differentialtreatment of messages that do not address the same subject matterappeared in Justice Black's concurring opinion in Cox v. Louisi-ana,"5 in which Justice Clark joined.6 9 This case was one of severalcontemporaneous decisions considering first amendment rights inthe context of southern civil rights demonstrations. 70 Cox, who leda peaceful march on a public street to protest racial segregation,was arrested for and convicted of breaching the peace and ob-structing 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).I9 Id. 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 court-house. The Court dealt with this conviction in a separate opinion, see Cox v. Louisiana (Cox

218 [Vol. 68:203


crimes through a statute that excepted from its general prohibition"any of [the] legitimate activities" of "a bona fide legitimate labororganization. 72 A majority of the Justices voted to strike downboth the disorderly conduct conviction, on the grounds of insuffi-cient evidence and overbreadth, and the blocking traffic convic-tion, on the ground that the local authorities regularly authorizedexceptions to the general prohibition but followed no governingstandard in doing so. For these Justices, the underlying issue withrespect to the latter conviction was viewpoint discrimination, andthe result reached was firmly in the tradition of the earlier cases .7

Unlike the Cox majority, Justice Black was unwilling to rest hisholding entirely on the rather sketchy indications of viewpoint dis-crimination or to reach the insufficient evidence issue. Instead, hecontended that the statutes' unambiguous labor exceptions ren-dered the provisions unconstitutional. His discussion deserves quo-tation in full:

I believe that the First and Fourteenth Amendments require thatif the streets of a town are open to some views, they must be opento all. It is worth noting in passing that the objectives of labor un-ions and of the group led by Cox here may have much in common.Both frequently protest discrimination against their members inthe matter of employment .... This Louisiana law opens thestreets for union assembly, picketing, and public advocacy, whiledenying that opportunity to groups protesting against racial dis-crimination. As I said above, I have no doubt about the generalpower of Louisiana to bar all picketing on its streets and highways.Standing, patrolling, or marching back and forth on streets is con-duct, not speech, and as conduct can be regulated or prohibited.But by specifically permitting picketing for the publication of laborunion views, Louisiana is attempting to pick and choose among the

II), 379 U.S. 599 (1965), from which Justice Black dissented. The majority reasoned thatalthough Louisiana undoubtedly could forbid demonstrations "near" a courthouse, law au-thorities had advised Cox that his demonstration was not so near as to trigger the prohibi-tion. Justice Black disagreed with the majority's characterization of the facts, but not withits 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 thatthe obstructing-passageway conviction constituted viewpoint discrimination, id. at 581. Ac-cordingly, his discussion of other forms of discrimination amounted only to an alternateholding as to each of the convictions.

Virginia Law Review

views it is willing to have discussed on its streets. It thus is tryingto prescribe by law what matters of public interest people whom itallows to assemble on its streets may and may not discuss. Thisseems to me to be censorship in a most odious form, unconstitu-tional under the First and Fourteenth Amendments. And to denythis appellant and his group use of the streets because of theirviews against racial discrimination, while allowing other groups touse the streets to voice opinions on other subjects, also amounts, Ithink, to an invidious discrimination forbidden by the Equal Pro-tection Clause of the Fourteenth Amendment. Moreover, as theCourt points out, city officials despite this statute apparently havepermitted favored groups other than labor unions to block thestreets with their gatherings.""

Justice Black saw the case as embodying three distinct forms ofdiscrimination, any one of which would justify reversal of the con-victions. First, by giving preferential treatment to the meetings oforganized labor groups, Louisiana had attempted "to pick andchoose among the views it is willing to have discussed on itsstreets. '75 Second, it had employed racial criteria to select disfa-vored views. Third, in practice the State "apparently" had em-ployed a system of viewpoint discrimination.

Of the three forms of discrimination Justice Black identified,only the first raised a novel constitutional question. Grosjean, DeJonge, and the standardless permit cases had struck down legisla-tion that not only had permitted picking and choosing among vari-ous views as such, but had required or allowed the imposition ofspecial burdens on particular viewpoints. Cox, by contrast, in-volved an extensive but incomplete limitation on expression. Ofthe messages burdened by Louisiana's statutes, only a fractionreadily could be portrayed as related to, or competitive with, thespeech protected by the statutes. For example, persons wishing toprotest the existence of nuclear weapons or United States member-ship in the United Nations were no worse off under Louisiana'sstatutes than under a total ban of public demonstrations, becausenone of the permitted labor speech would address these subjects.Perhaps in response to this point, Justice Black struggled hard todemonstrate that at least some of the speech allowed by Louisi-

7" Cox II, 379 U.S. at 580-81.75 Id. at 581.

[Vol. 68:203


ana's labor exception could address the same subject as the mes-sage Cox had attempted to express. If Louisiana tolerated theviews of union members on the issue of employment discrimina-tion, he asserted, the Constitution required similar tolerance forCox's opinions on the subject.

Surely Louisiana did not enact these statutes with the purposeof bringing about any particular instance of viewpoint discrimina-tion. The sweep of the statutes' prohibitions extended far beyondwhat was needed to give labor unions an advantage on questions ofemployment discrimination. Whatever evils the statutes embodied,they certainly did not represent a concerted effort by Louisiana toskew public debate on the issue Cox sought to address.

Such an absence of invidious purpose, however, may not be fatalto Justice Black's constitutional objection. The statutes, at least asJustice Black interpreted them, allowed the expression of onepoint of view on the issue of employment while forbidding others.His position may have been that any legislation that effects thedifferential treatment of different points of view, even in a singleinstance, should fall because courts must not tolerate viewpointdiscrimination in any form. If this had been his position, he mighthave been tempted to adopt a constitutional rule forbidding anydistinction among kinds of speech based on content, because al-most every distinction has the potential for competing views onopposite sides."6

Another possible explanation of Justice Black's position rests onthe different perspective the civil rights cases brought to the ques-tion of access to public facilities. The pressure and conflict of thecivil rights movement in the South made much more acute the is-sue of access to public streets and grounds for purposes of politicalprotest. For the most part, the Court had dealt with this issue,encapsulated in what has become known as the public forum doc-trine, in the context of patent viewpoint discrimination against un-popular minorities. Lurking in Cox, by contrast, was the questionwhether civil rights demonstrators had a particular right to picketin a forum of great moment to their cause, even if a general restric-tion on picketing were appropriate.77

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

1982] 221

Virginia Law Review

Delineating a selective right of access for particular speakers in aparticular place seems an especially complex and difficult task.Satisfactory resolution of the problem requires, among otherthings, a fairly coherent sense of the priority of the values atstake.78 Furthermore, by its very complexity, the question of selec-tive access may invite manipulative resolution by judges hostile toparticular outcomes. Perhaps to avoid these difficulties, JusticeBlack chose in Cox to announce an all-or-nothing rule: denials ofaccess to public facilities for purposes of demonstrations should betolerated, if at all, only when all possible users are excluded. Byapplying this formula, he avoided addressing the selective accessquestion head-on in a context where it could pose the mostproblems, namely a public street, and confined the issue to areaswhere he satisfactorily could sustain a rule of no access for any-one. 79 The result, however, was to graft onto the established rule ofviewpoint neutrality an extension apparently meant to address aproblem different from discrimination against protected speech. Atthe very least, this apparent confusion of access and discriminationrules is analytically sloppy.80

In the years following Cox, the Court took no further steps toexplore the implications of Justice Black's position. It did decideanother selective exclusion case, but the issue as framed by theCourt involved the traditional problem of imposition of specialpenalties on proponents of a particular view by a governmentalbody. In Tinker v. Des Moines Independent Community SchoolDistrict,81 the Court overturned school suspensions imposed ontwo students who had worn black armbands to class to protestAmerican involvement in the Vietnam war. The Court noted thatschool authorities had allowed the wearing of other political sym-bols 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 con-cerned a luxury civil liberty. It was a sign of how tolerant toward a sharply dissident minor-ity 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 deniedincluded 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, 191-93infra and accompanying text.

81 383 U.S. 503 (1969).

[Vol. 68:203222


prohibition of expression of one particular opinion, at least withoutevidence that it is necessary to avoid material and substantial in-terference with schoolwork or discipline, is not constitutionallypermissible. '8 2 Justice Black dissented, apparently convinced thatthe school officials had acted because of legitimate disciplinaryconcerns rather than from a desire to suppress a particular point ofview.83 In this instance, his conviction about the good faith of theauthorities overcame whatever reservations he might have hadabout the discriminatory effect of the school's actions.

C. Police Department v. Mosley: Announcement of a ContentNeutrality Rule

It was not until the 1972 case of Police Department v. Mosley,"after Justices Black and Harlan had died and the full complementof Nixon-appointed Justices was in place, that the Court minedthe possible implications of Justice Black's concurrence in Cox. In1968, Earl Mosley, a postal employee, spent his free time picketinga Chicago high school during class hours. His sign accused theschool administration of racial discrimination. When Chicago, forreasons apparently unrelated to Mosley's protest, enacted an ordi-nance prohibiting any demonstration within 150 feet of a schoolbuilding while classes were in session, Mosely went to federal courtto prevent enforcement. The district court dismissed his com-plaint, but on appeal the United States Court of Appeals for theSeventh Circuit held the ordinance constitutionally overbroadunder the first amendment.8 5 The Supreme Court affirmed unani-mously, but it rested its decision on a different ground.86

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 notunlike those in Mosley for the violation of an ordinance prohibiting the creation of "anynoise or diversion" tending to disturb a school session. Id. at 108 (quoting Code of Ordi-nances of City of Rockford, ch. 28 § 19.2(a)). Although Mosley himself engaged in slightlyless disruptive behavior, the juxtaposition of the two cases strongly suggests that the Courtwas prepared to uphold a complete ban on access to the vicinity of schools and thereforethat Mosley could have been convicted constitutionally but for the labor exception in thestatute, quoted in text accompanying note 87 infra. The Court, however, explicitly reservedthis question. Id. at 107 n.2.

19821

Virginia Law Review

The Chicago ordinance excluded from its prohibition "the peace-ful picketing of any school involved in a labor dispute. '8 7 Becauseof this exclusion, the Court chose to analyze the ordinance in termsof the equal protection clause. Although the first amendmentinformed its analysis, the Court asserted that, at bottom, the cru-cial question was one posed by "all" equal protection cases:"[W]hether there is an appropriate governmental interest suitablyfurthered by the differential treatment."88 What constituted an"appropriate" governmental interest, however, was not made clearby 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 itsmessage, its ideas, its subject matter, or its content"8 and that it"may not select which issues are worth discussing or debating inpublic facilities." 90 The opinion declares that "'a concern aboutcontent' . .. is never permitted." 91 Elsewhere, however, it con-cedes that "there may be sufficient regulatory interests justifyingselective exclusions or distinctions among pickets,"92 and demandsonly that "discriminations among pickets. . . be tailored to servea substantial governmental interest."9 The Court did not clarifymatters by stating that it adopted the views expressed by JusticeBlack in Cox, inasmuch as he had perceived three different kindsof discrimination in that case.9 4

However unsatisfactory may have been the Mosley Court'sdescription 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., 406U.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 ofthe "middle-tier" line of equal protection cases. See Gunther, The Supreme Court, 1971Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a NewerEqual Protection, 86 Harv. L. Rev. 1 (1972). At the time of the decision, however, this stan-dard of review had not been articulated, and one cannot assume its application to speechdiscrimination cases even if one were sure of its content.

:9 408 U.S. at 95.0o Id. at 96.91 Id. 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 cate-gories 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.

[Vol. 68:203


issue, the Court's application of the standard raised even morequestions. Chicago had asserted that its ordinance was "a devicefor preventing disruption of the school," a concern the Court con-ceded to be "legitimate."9 5 But, the Court asserted, "Chicago itselfhas determined that peaceful labor picketing during school hoursis not an undue interference with school," and this determinationundermined any justification for a prohibition of peaceful nonlaborpicketing.9 The City could not argue that labor picketing as aclass was less prone to produce violence, because "[plredictionsabout imminent disruption from picketing involve judgments ap-propriately made on an individualized basis, not by means ofbroad classifications, especially those based on subject matter."' ' 7

These responses to the City's argument can support either oftwo very different conclusions: Chicago did not prevail because itsreasoning did not provide even minimal support for the rationalityof its ordinance, or Chicago did not prevail because the perfectlyrational arguments it could have advanced for its ordinance wereinsufficient to meet a very heavy burden of justification. Eitherconclusion is possible, because the Court did not consider, andtherefore did not indicate how it would weigh, one potentially sig-nificant explanation of the ordinance's distinction between laborand other forms of picketing.

Chicago may have included the labor exception not because itregarded labor picketing as nondisruptive, but because it believedhigher authorities already had dealt with this problem in a mannerthat prevented municipal regulation. The City argued that federallabor law had preempted the field of worksite picketing in a waythat would have invalidated an extension of the ordinance to laborpicketing."' The Court did not meet this argument directly, butinstead noted that public schools such as the one Mosley picketedfell outside the scope of federal regulation.99

408 U.S. at 99-100."Id.7 Id. at 100-01.Hs Arguing 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 notapply to its public schools, but argued that "observance by employees of private employersof picket lines of public employees can have repercussions in the federal sphere." Id. at 102n.9 (quoting Reply Brief at 12).

" Id.

19821 225

Virginia Law Review

The Court's response, however, was incomplete. It accountedneither for the application of federal labor law to privateschools,100 nor for the effect of state regulation on public schools.As for the latter, at the time Chicago passed its ordinance Illinoislaw prohibited public employees, including school employees, fromgoing on strike and authorized state courts to enjoin such activi-ties.101 Chicago reasonably may have assumed that the only laborpicketing that was likely to occur at public schools during classtime would be the product of an illegal, enjoinable strike and thusmay have concluded that a prohibition of such picketing would beredundant. Although this explanation for the labor exception is farfrom airtight, it seems at least as plausible as the hypothesis thatChicago enacted its sweeping prohibition of school picketing with aview 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 rela-tionship between the expression allowed by the labor exceptionand the message Mosley wished to convey. The Court may havemeant to adopt the relationship described by Justice Black inCox, 02 tying union views on employment discrimination to otherviewpoints on that subject. The facts in Mosley were consistentwith Justice Black's linkage, as the labor picketing allowed by Chi-cago might have competed with the attack on racial discriminationexpressed by Mosley.10 The failure of the Mosley Court explicitlyto make this connection, however, leaves the impression that it didnot consider such a relationship necessary. The opinion's broaderstatements about the impermissibility of all content discriminationreinforce this impression.

Least defensible of all was the Court's failure to acknowledge the

100 Chicago hardly can be faulted for its failure to realize that private parochial secondaryschools also did not come under the National Labor Relations Act. This discovery came assomething 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 ofPana 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 onschool picketing, a restriction with particular impact on persons interested in publicizingviews on school policy. See note 137 infra and accompanying text.

[Vol. 68:203

1982 Content Discrimination 227

contradiction between the new content neutrality rule it was an-nouncing and the content-oriented jurisprudence of the firstamendment. Only Chief Justice Burger, demurring in a concur-rence from the Court's broad statement of the rule, cited obscen-ity, fighting words, and libel cases as evidence that the firstamendment quite readily tolerated distinctions based on con-tent.1" For the majority, the challenge went unanswered, and theinnovation went unexplained.

D. Content Neutrality After Mosley: The Search for aTolerable Rule

Although Mosley left much for clarification, subsequent deci-sions have accomplished little of this task. In CBS, Inc. v. Demo-cratic National Committee,105 the Court refused to apply Mosleyto the television networks' practice of selling time for commercialmessages to all comers but restricting political advertising.1 InLehman v. City of Shaker Heights,10 7 four Justices voted to sus-tain a similar practice in the leasing of advertising space on pub-licly owned buses because the municipality did not discriminatewithin the respective categories of commercial and politicalmessages.108 Four Justices, however, endorsed the proposition that"discrimination. . .among entire classes of ideas" is as "odious"as discrimination "among points of view within a particularclass,"10 9 and the decisive concurring opinion of Justice Douglasdid not address the issue.110

More recently, in First National Bank v. Bellotti11 and Consoli-

10 408 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 ofthe majority was that the editorial judgment of the network constituted a private functionunregulated 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 broad-casts on behalf of political candidates).' 418 U.S. 298 (1974).'o* 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 tospread his message before this captive audience." Id. at 308 (Douglas, J., concurring in thejudgment).

" 435 U.S. 765 (1978).

Virginia Law Review

dated Edison Co. v. Public Service Commission,1 1 2 the Court in-voked the broad language of Mosley in striking down prohibitionslimited to the political expressions of corporations " and utili-ties,114 respectively. The latter opinion, however, speaks of the firstamendment's "hostility" to "prohibition of public discussion of anentire topic," implying that the barrier against content discrimina-tion was high but not insurmountable. 5 In Metromedia, Inc. v.City of San Diego,18 the plurality opinion of four Justices, includ-ing the author of Bellotti and Consolidated Edison, cited Mosleyfor the considerably more modest statement that "[a]lthough the[government] may distinguish between the relative value of differ-ent categories of commercial speech, [it] does not have the samerange of choice in the area of noncommercial speech to evaluatethe strength of, or distinguish between, various communicative in-terests.117 Whether this restatement reflects retrenchment or onlycaution in the face of a divided Court remains to be seen.

The most extensive effort to date to amplify the meaning ofMosley is Carey v. Brown.' 8 That case involved an Illinois statutethat forbade picketing of a private residence but that containedexceptions both for picketing by the resident and for picketing byanyone at residences involved in a labor dispute, used as a place ofbusiness, or employed commonly for meetings to discuss matters ofpublic interest." 9 Several members of the Committee Against Rac-ism, who had picketed the home of the Mayor of Chicago to pro-test his position on busing, were convicted of violating this statute.They then sought a declaratory judgment that the statute was un-constitutional in light of Mosley. On appeal, the Court found thecase "constitutionally indistinguishable" from Mosley.12 0

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 excep-tions was not altogether free from ambiguity, especially as no state court construction of thestatute existed. Portions of Justice Brennan's opinion can be read as ignoring the exceptionsfor residences used for public interest matters and for picketing by the resident. Compareid. at 468-69 & n.13, with id. at 473-74 (Rehnquist, J., dissenting).

22 Id. at 460.

[Vol. 68:203


For the most part, the discussion in Carey mirrors Mosley.1" 1 Al-though the Court suggested "that certain state interests may be socompelling that where no adequate alternatives exist a content-based distinction-if narrowly drawn-would be a permissible wayof furthering those objectives," it did not find such interests pre-sent in the Illinois statute. 122 It dismissed as "dubious" the argu-ment that federal labor law prevented Illinois from implementing ajudgment that labor picketing was disruptive.12 3 It rebutted thecontention that all the exceptions to the picketing bans involvedinstances where residents had waived a legitimate expectation ofprivacy with the inapposite assertion that public figures such asthe mayor had even a lesser right to privacy.1 24 As in Mosley, theCourt made no effort to bring under a common topical heading theviews permitted to be expressed under the statute's exceptions andthe prohibited speech.1 25

The absence of any discussion of the constitutionally relevantties between the favored views and the suppressed speech mayhave been more significant in Carey than in Mosley, because onehas a harder time seeing any common subject matter in Carey. Allof the exceptions to Illinois's prohibition of residential picketinginvolved expression that in some way referred to the use to which

One significant difference between the two opinions is the degree to which the Courtrelied on the equal protection clause as an independent source of constitutional rules con-cerning content discrimination. The Mosley opinion insisted that the issue was analogous tothat present in "all" equal protection cases and stressed the importance of equal protectionas a ground for decision. See notes 87-88 supra and accompanying text. Although the Careymajority 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 thesource of the underlying right, id. at 460, 462. Justice Stewart, who concurred only in thejudgment, explicitly rejected equal protection as a useful analytical tool in this context anddeclared that the case involved only "the basic meaning of the constitutional protection offree speech." Id. at 471. See Westen, supra note 12, at 562 n.84. More recently, the Courthas indicated its acceptance of the notion that equal protection doctrine does not add to theanalysis 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 deter-mined not to interfere impermissibly with that right, only rational-basis scrutiny under theequal protection clause will be applied); id. at 2443-44 (White, J., concurring). See also note161 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.

1982] 229

Virginia Law Review

the picketed residence was put.126 The Committee Against Racism,on the other hand, had no concern with what the mayor did in hishome and picketed that place only because of the identity of theoccupant. It is difficult to see how the expression of the toleratedviews would have had any relation to what the Committee wishedto communicate to the public. This absence of any readily appar-ent nexus between the advantaged and burdened views suggeststhat the Court applied a strong prophylactic antidiscriminationrule, but the opinion does not reveal its boundaries.

Also absent from Carey, as from Mosley, is any discussion of theapparent inconsistency between the majority's statement of thecontent neutrality rule and the Court's own practice of varying thelevel of first amendment protection according to content. Thisomission seems most glaring in Carey, a decision delivered thesame day the Court handed down one opinion acknowledging theexistence of a relationship between content and protection,12 7 an-other specifying the significantly lower protection given thecontent-based category of commercial speech, 12' and a third up-holding a form of content discrimination against the category oflabor speech."2 9 The Court made no effort to reconcile this melangeof statements and results. Instead, Carey reads as if it existed inan entirely separate universe, independent of the problems andconcerns that produced a content-oriented first amendmentjurisprudence.

In sum, since Mosley the Court has seemed committed to a rulethat demands more than viewpoint neutrality of legislation affect-ing speech. How much more remains an open question. 30 Theproblem of defining the boundaries of this rule has been exacer-bated by the Court's failure either to explain why it was broaden-

12, 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 opin-

ion); 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 addressthis matter, the Court declared that its cases "have required the most exacting scrutiny incases in which a State undertakes to regulate speech on the basis of its content." Unfortu-nately, one still must ask: Scrutiny for what?

230 [Vol. 68:203


ing the rule developed in earlier cases or to reconcile the rule withits own practice of content discrimination in the decision of firstamendment cases. To determine what rule the Court should apply,it is necessary to explore the kinds of content discrimination theCourt may seek to prohibit and the role each kind plays in an anal-ysis of freedom of expression.

HI. FORMS OF CONTENT NEUTRALITY

Logic and a close reading of the Court's decisions suggest at leastfive possible antidiscrimination rules concerning the content ofspeech. One of these rules has an obvious and important role toplay in any first amendment theory. Another just as obviously isantithetical to any conceivable system of free speech. The validityof the remaining three possible rules can be tested by analyzingthem in the context of particular cases.

A. The Possible Rules

If one begins with the assumption that the first amendment rec-ognizes the existence of distinct categories of speech of varying de-grees of constitutional significance, then at least five antidis-crimination rules are possible, regardless of the number or contentof the categories. A rule of viewpoint neutrality would not allowthe government to disadvantage one point of view in relation toanother on the same subject if the disadvantaged point of viewotherwise would enjoy first amendment protection. This rule wouldrequire only what the pre-Mosley cases demanded.

A rule of hierarchical neutrality would compel the governmentto treat equally all speech that falls within a particular category offirst amendment significance. This rule would rest on the assump-tion that the boundaries of each hierarchy would embrace allpoints of view concerning subjects within the hierarchy." 1 It woulddemand, for example, that a state that permits political campaignspeeches in a particular time and place also allow all other expres-

131 It seems self-evident that all points of view on a particular subject should have thesame constitutional significance and therefore fall within the same constitutional hierarchy.Execution of this principle in practice involves some difficulties, see notes 158-60 infra andaccompanying text, but the problems involved do not seem qualitatively different fromthose entailed in the application of any abstract principle to the complexities of the realworld.

1982]

Virginia Law Review

sion of equal constitutional significance-calls for structural politi-cal change, philosophical discussion, or whatever-to proceed onthe same terms. This rule, however, would not require the sametreatment for speech that falls in either a more or less protectedcategory.

A rule of equal-or-greater neutrality would forbid the govern-ment to give any advantage to expression in relation to its treat-ment of speech of equal or greater first amendment significance.Unlike hierarchical neutrality, this rule would extend the advan-tage at issue to speech in a different but higher first amendmentcategory. If, for the sake of argument, the first amendment pro-tected the categories of political speech, intellectual speech, andcommercial speech in descending order and the government gave abenefit to some subcategory of intellectual speech, equal-or-greaterneutrality would compel the government to give a similar benefitto all political and other intellectual speech, but not to commercialspeech.

A rule of protected-speech neutrality would not let the govern-ment disadvantage any speech protected by the first amendmentin relation to its treatment of any other expression. It would regardthe categorical boundaries employed in other first amendment con-texts as irrelevant to the validity of discrimination among kinds ofprotected speech. Assuming the same hypothetical hierarchy ofcategories of expression as in the previous paragraph, a protected-speech neutrality rule would require the government to treat com-mercial speech on the same terms as it does political campaignspeeches. This rule would allow only neutral "time, place, or man-ner" restrictions on speech otherwise within the ambit of the firstamendment." 2

Finally, a rule of absolute content neutrality would forbid anydistinction on the basis of the content of speech. It would not letthe government recognize a difference between, for example, hon-est 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 tradi-tional formulation of this doctrine to the extent it presupposes a complete prohibition ofdistinctions based on the content of speech.

232 [Vol. 68:203


nonobscene movies. It would take literally the statement in Mosleythat a concern about content is "never permitted.""'

With the exception of absolute content neutrality, for which theCourt has given only rhetorical support, each of these rules hasreceived the endorsement of one or more Justices as the exclusivestandard for assessing discrimination in speech."" As a matter ofprinciple, the arguments for a viewpoint neutrality rule andagainst absolute content neutrality are simple and straightforward.The validity of either the hierarchical, equal-or-greater, or pro-tected-speech neutrality rules seems more problematic.

B. The Obvious Cases: Viewpoint and Absolute ContentNeutrality

Long before the Court decided Mosley, it had embraced a rule ofviewpoint neutrality with respect to legislation affecting speech. "

Such a precept seems an essential concomitant of any rational sys-tem of freedom of expression. It rests on the realization thatspeech of constitutional significance suffers indirectly from advan-tages given to opposing points of view, and that this indirect harmamounts to suppression. Thus, any system that protects speechmust insist to the same degree on viewpoint neutrality.136

It is interesting to note how many of the Court's post-Mosleydecisions could have reached the same result if they had restedexclusively on a viewpoint neutrality rule. Mosley itself is typical.That case, it will be recalled, involved an ordinance that allowedonly labor picketing near schools during class hours. As construedby the Court, the ordinance apparently allowed working teachersto express their views about conditions of employment, but deniedaccess near schools to interested parents, prospective teachers, andothers 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.135 See notes 50-73, 81-83 supra and accompanying text.136 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 outof context in Mosley. See 408 U.S. at 96 & n.4. As the complete passage reveals, Meiklejohnbelieved not that all ideas always enjoy equal status, but rather that all ideas regarding aparticular 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 lim-


reasonable assumption that persons who wish to address questionsof school policy have the greatest interest in picketing near aschool, then those with the strongest interest in opposing teacherson school issues suffered disproportionately under the Mosley or-dinance. In particular, the ordinance benefited teachers on ques-tions of employment policy, a matter about which they were espe-cially interested, and discriminated against those who wished tochange the school's employment policy to the disadvantage ofthose teachers. Mosley held exactly this view, if one may construehis rather broad protest as calling for racial integration of theteaching staff. Seen in this light, Mosley's claim of viewpoint dis-crimination seems at least plausible, if not quite overwhelming.

Other cases in which the Court has articulated a broad neutral-ity rule also can be cast as involving viewpoint discrimination. InCity of Madison Joint School District v. Wisconsin EmploymentRelations Commission,""8 the Court struck down an administrativeorder prohibiting school teachers other than union representativesfrom addressing board of education meetings about school policy.The Court noted that the order excluded from "public discussionof public business" a class of speakers who were "vitally con-cerned" with the matter about which they could not speak.1,3 Inmany ways, the discrimination paralleled that in Mosley, withanti-union teachers rather than antiteacher citizens the victims.First National Bank v. Bellotti1 40 involved a first amendmentchallenge to a Massachusetts statute forbidding corporations fromspending money to influence public referenda on taxation.141 In

ited to "labor picketing." 408 U.S. at 94 n.2 (emphasis in original). Perhaps the exceptionwould 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 partylabor picketing), but under the Court's interpretation it appears not to have reached personswho simply wished to be hired as teachers.

118 429 U.S. 167 (1976).138 Id. 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 corpora-

tions from making any expenditures "for the purpose of. . . influencing or affecting thevote 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 thetaxation of the income, property, or transactions of individuals" from the "materially affect-ing" exception. For an insightful analysis of this and other issues raised by Bellotti, see


striking down the statute, the Court observed that "the legisla-ture's suppression of speech suggests an attempt to give one side ofa debatable public question an advantage in expressing its views tothe people."14 In Village of Schaumburg v. Citizens for a BetterEnvironment,143 the Court held unconstitutional an ordinance for-bidding door-to-door solicitation by those charitable organizationsthat gathered and disseminated information and opinions about is-sues of public concern, but not by those acting as conduits for con-tributions.1 " The majority's opinion is rather murky and does notmention discrimination as such, but its underlying concern mayhave been the apparent disadvantage the ordinance gave to organi-zations seeking to promote social change in relation to organiza-tions dispensing more traditional forms of charity.1 45 Finally, theCourt in Consolidated Edison Co. v. Public Service Commission1 46

invalidated an administrative order forbidding utilities from in-cluding in their monthly bills inserts expressing opinions "on con-troversial issues of public policy. ' 147 Although only Justice Stevensbased the decision on this narrow ground, the order limited theright of one distinct group of persons-managers and owners ofutilities-to address important public issues, and exactly as didthe statute in Bellotti, it suggested an attempt to skew publicdebate.

1 48

The real issue, then, is not the validity of a viewpoint neutrality

BeVier, Justice Powell and the First Amendments "Societal Function": A PreliminaryAnalysis, 68 Va. L. Rev. 177 (1982).

141 435 U.S. at 785.143 444 U.S. 620 (1980).144 The ordinance permitted solicitation only by those organizations that submitted "sat-

isfactory proof that at least seventy-five percent of the proceeds of such solicitation will beused directly for the charitable purpose of the organization." Id. at 624 (quoting Schaum-burg Village Code § 22-20(g) (1975)). As the Court understood this restriction, a "charitablepurpose" did not include gathering and disseminating information and ideas about issues ofpublic 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 limita-tion to "controversial" issues. The suppression of controversy itself may reflect a systematicbias in favor of support for or tolerance of the status quo. Cf. Metromedia, Inc. v. City ofSan Diego, 101 S. Ct. 2882, 2915 (1981) (Stevens, J., dissenting) (asking whether the distinc-tion "is a subtle method of regulating the controversial subjects that may be placed on theagenda for public debate").

1982]

Virginia Law Review

rule, but rather its exclusivity. Among the four possible rules thatforbid more than viewpoint discrimination, one seems totally im-plausible as a rule for constitutional decisions and can be elimi-nated immediately. A requirement of absolute content neutralitywould deny to government the power to distinguish speech fallingwithin the ambit of the first amendment from that without. De-spite the hyperbole found in Mosley and other opinions, it seemsclear that the Court never has embraced such a rule and neverwill.

1 4 9

The problem, then, boils down to the appropriateness of the hi-erarchical, equal-or-greater, and protected-speech neutrality rulesas alternatives to exclusive reliance on the viewpoint neutrality re-quirement. Rather than discuss this question in the abstract, thearticle analyzes these three rules through illustrative cases.

C. Hierarchical, Equal-or-Greater, and Protected-SpeechNeutrality Rules in the Court's Decisions

Three cases highlight both the range of rules that the Court hasapplied and the arguments that support them. In Lehman v. Cityof Shaker Heights,150 a divided Court reached a result compatiblewith hierarchical neutrality, but not with any broader rule. Theresult in Carey v. Brown 51 is consistent with a rule of hierarchicalneutrality, but the Court rather clearly articulated an equal-or-greater rule. In Metromedia, Inc. v. City of San Diego, 52 view-point, hierarchical, equal-or-greater, and protected-speech neutral-ity rules each received the endorsement of one or more Justices asthe exclusive standard for judging claims of discrimination. Eachcase 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 theiranalysis. In several cases where the Court has sustained distinctions between political andother speech, the government was able to justify the restriction on the need, arguably offirst amendment significance, to limit its own political involvement. See Greer v. Spock, 424U.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 ac-tivities); 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-

[Vol. 68:203

1982] Content Discrimination

1. The Lehman Case

Lehman involved a first amendment challenge to a municipal-ity's refusal to lease advertising space in its buses to a candidatefor political office. Shaker Heights prohibited any advertising con-nected with politics or other public issues, although it otherwiseleased space on a first-come, first-served basis.1 " The Court up-held this restriction, although a majority of the Justices could notagree on the reasons for doing so.

If one puts aside the rather unsatisfactory opinions in the caseand looks at only the facts and the result, a reasonable basis forthe decision may emerge. Harry Lehman, the candidate whosought to lease advertising space, made two arguments. First, heasserted a right of access to the bus walls based on the intrinsicvalue 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 federallegal 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 affilia-tions). In other cases, the Court has displayed uncertainty as to whether restrictions on theexpenditure of money constitutes suppression of expression. Compare California MedicalAss'n v. FEC, 101 S. Ct. 2712 (1981) (federal law may limit political contributions) andBuckley v. Valeo, 424 U.S. 1 (1976) (same), with Citizens Against Rent Control/Coalition forFair Housing v. City of Berkeley, 102 S. Ct. 434 (1981) (municipal ordinance limiting contri-butions to communities supporting or opposing local ballot initiatives violated the firstamendment). 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 de-scribed only as limited viewpoint discrimination against "indecent" speech, apparently be-cause of uncertainty as to what first amendment interests, if any, are implicated by thisparticular form of expression. Compare FCC v. Pacifica Found., 438 U.S. 726 (1978) (theFCC may prohibit profanity during daytime radio broadcasts), and Young v. American MiniTheatres, Inc., 427 U.S. 50 (1976) (movie theatres featuring explicit sex may be subjected tospecial zoning requirements), with Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (anordinance may not prohibit drive-in theaters from showing movies containing nudity thatare visible from street). In one case, the Court's content discrimination analysis appears tohave served as a substitute for resolution of free exercise and establishment clause ques-tions. See Widmar v. Vincent, 102 S. Ct. 269 (1981). Finally, implicit in the Court's recogni-tion of a lower constitutional status for commercial speech has been a willingness to tolerategovernment choices among the economic interests implicated by such speech. See notes 184-85 infra and accompanying text. This tolerance may explain the Court's willingness to sus-tain discriminatory regulation affecting the entirely commercial aspects of labor speech. SeeNLRB v. Retail Store Employees Local 1001, 447 U.S. 607 (1980) (prohibition limited tosecondary 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 implicatethe first amendment to the same degree as political debate).

I5 See 418 U.S. at 300-01.

Virginia Law Review

claimed discrimination by the City based on the access it gave topersons with other messages. For each of these claims, it matteredthat Shaker Heights let others use bus advertising, but it matteredfor different reasons.

With respect to Lehman's access claim, one of his strongest ar-guments was that Shaker Heights belied whatever reason it had forlimiting access by letting others speak through the medium of busadvertising. The access allowed to others is an important consider-ation in balancing the incremental benefit from Lehman's expres-sion against the incremental cost to the City of providing access,because it helps indicate the value of the City's asserted regulatoryaims.155 A reasonable judge might still decide, as perhaps did theLehman plurality,1 5 that the gain to expression from bus advertis-ing would be too slight to outweigh even a heavily discounted gov-ernmental interest. The dissent, however, reached a different con-clusion.1 57 In any event, the correct resolution of the accessproblem falls outside the scope of this article.

With respect to Lehman's discrimination claim, the access en-joyed by others would be significant only if the permitted speechin some way reduced the impact of his own message. Given thebreadth of the City's ban, establishing such harm probably wouldbe impossible. Lehman wished to promote his candidacy, a matter

155 A nonexhaustive list of the factors one might consider in weighing a particularspeaker'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 theimpact 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 ofaccess questions is found in Kalven, supra note 77. See also Cass, First Amendment Accessto Government Facilities, 65 Va. L. Rev. 1287 (1979); Stone, Fora Americana: Speech inPublic 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 legiti-

macy of balancing, id. at 312, it found that no balancing was necessary in this case becausethe City had waived any argument against letting Lehman buy space by providing access tocommercial advertisers, id. at 314.

238 [Vol. 68:203


of public importance. By contrast, none of the sanctioned bus ad-vertising addressed any public issue at all.

Although Lehman himself could not show that he had sufferedany harm, the question remains whether the City's policy resultedin viewpoint discrimination in other instances. The dissent impliedthat the line drawn by the City violated viewpoint neutrality inas-much as merchants could hawk their wares, but those who opposedthese goods on ideological grounds could not advertise their con-victions. "For instance, a commercial advertisement peddlingsnowmobiles would be accepted, while a counter-advertisementcalling upon the public to support legislation controlling the envi-ronmental destruction and noise pollution caused by snowmobileswould be rejected. ' 158 The point suggests that recognition of a dis-tinction between commercial and noncommercial speech can resultin viewpoint discrimination and, more generally, that any attemptto distinguish among categories of protected speech has the poten-tial to engender discrimination.

On balance, the point seems forced. The competition betweenprohibited and allowed messages suggested by the dissent's hypo-thetical rests on a perception of an implicit message in the snow-mobile advertisement, not on its express content. One might aswell argue that any commercial advertising constitutes an implicitendorsement of capitalism and therefore competes with expositionof the Marxist critique of bourgeois political economy. Althoughthese implications may create certain tensions between speech fall-ing into different categories of expression, the clear differences be-tween these kinds of speech seem far more significant.

Commercial advertising, in terms of the Court's own definitionof this category of expression, looks only to induce a private rela-tionship between a buyer and a seller and presupposes the largersocial background in which the solicited relationship will exist.15

This tacit assumption that the status quo will endure hardlyamounts to political advocacy, or indeed to advocacy of any sort.Its expression does not seem a substantial threat to any focusedcommentary on public issues. More generally, although a sensitive

168 Id. at 317.

161 See 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).

19821

Virginia Law Review

ear might detect undertones in almost all speech that would defeatany kind of categorical distinction, it seems possible to devise cate-gories that comprise all points of view among which significantcompetition exists.160

If one accepts the conclusion that a distinction between politicaland other speech does not produce any appreciable viewpoint dis-crimination, then the refusal of Shaker Heights to allow discussionof public issues through bus advertising conformed to viewpointneutrality. If one also accepts the validity of the Court's frequentendorsements of the unique significance of political speech, thenthe City's definition of forbidden advertising obviously preservedhierarchical neutrality as well. The City's definition of what speechit would not permit in advertisements apparently was identical tothe Court's definition of political speech, and the City clearlytreated alike all speech in that category.

It is equally clear that the City's restriction violated both theequal-or-greater and protected-speech neutrality rules. At leastunder the Court's current first amendment jurisprudence, the con-stitutional value of Lehman's speech was considerably greater thanthat of the commercial advertising the City permitted. Addition-ally, under any mainstream first amendment theory, pronounce-ments of a politician regarding his candidacy enjoy constitutionalprotection. As a result, either the equal-or-greater or the pro-tected-speech neutrality rule would entitle Lehman to the advan-tages Shaker Heights granted commercial advertising.

The reasons for not adopting either the equal-or-greater or pro-tected-speech rule as the solution to the discrimination problemseem evident. Whatever role they might play in resolving whetheraccess to a particular channel of expression is appropriate, theserules go far beyond what is necessary to obviate the dangers ofdiscrimination. They require equal treatment not only of catego-ries 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 allverbal expression, which is to say any theory worth discussing, will require that aspectrum be cut and the location of the cut will always be, arguably, arbitrary. Thequestion is whether the general location of the cut is justified. The existence of closecases is not a reason to refuse to draw a line and so deny majorities the power togovern in areas where their power is legitimate.

Bork, supra note 14, at 28.

[Vol. 68:203240


but also of other categories that the Court itself considers distin-guishable for purposes of determining the degree of constitutionalprotection.161

Whatever it merits as an access decision, Lehman reached theright result on the question of discrimination. By upholdingShaker Heights's distinction between permitted and forbidden busadvertisements, the Court merely reaffirmed its own pronounce-ments that political speech stands on a separate footing from otherforms of expression. The fact that political speech enjoys specialprotection under the first amendment but suffers special burdensunder the City's rules may impeach the wisdom of the Court's ac-cess holding, but it in no way undermines its discrimination result.

2. The Carey Case

Although this article already has said much about Carey,1 62 a

few additional observations are in order. Unlike in Lehman, a ma-jority of the Court was able to agree on an opinion, but much ofwhat was agreed on seems especially vulnerable to criticism. AsJustice Rehnquist pointed out in his dissent, the majority opinionanalyzes the Illinois statute as if it had contained an exceptiononly for labor speech.16 s This failure to acknowledge the significantdifferences between Carey and Mosley obscures the basis of themajority's holding. Portions of the opinion nonetheless deservecareful attention.

A critical point in the Court's argument concerns the legitimacyof the State's attempt to provide special protection for labor pro-tests. The majority did not argue that this purpose could not jus-tify the other exceptions to the statute's picketing prohibition, per-haps because this response would have admitted how different the

11 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" cannotapply to speech if for first amendment purposes we must regard the content of speech asirrelevant. Unlike voting, where the Constitution regards each vote and each political candi-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); Williamsv. Rhodes, 393 U.S. 23 (1968); Baker v. Carr, 369 U.S. 186 (1962); J. Ely, supra note 14, at116-25, a system of freedom of expression demands that government recognize the superiorvalue 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.

1982]

Virginia Law Review

Illinois statute was from the ordinance involved in Mosley.,, In-stead, the Court accepted the asserted purpose as valid, but heldthat such a purpose could not outweigh the first amendment val-ues implicated by the prohibited speech. According to the Court,the labor justification "forthrightly presupposes that labor picket-ing is more deserving of First Amendment protection than arepublic protests over other issues, particularly the important eco-nomic, social, and political subjects about which [members of theCommittee Against Racism] wish to demonstrate." 16 5 The Courtrejected this presupposition, noting that "[p]ublic issue picketing... has always rested on the highest rung of the hierarchy of FirstAmendment values.""

At this point, the Court clearly was contending for equal-or-greater neutrality, but its justification for doing so had little to dowith discrimination. As in Lehman, one must separate the accessand discrimination issues. With respect to access, one properly canbalance the government's interests in limiting access against boththe Committee's assertion that picketing in front of the mayor'shome would substantially augment the impact of its message"67and the State's willingness to allow picketing of far less constitu-tional significance at this site.6 8 These considerations, along withothers such as the traditional resort to street picketing by protestmovements, the availability of legitimate scheduling devices tolimit the disruption caused by such picketing, and the overall im-portance of the speech at issue, very well might lead to a conclu-sion that the Committee Against Racism should enjoy a reasonableright of access to the mayor's doorstep. This right of access, how-ever, would be related only indirectly to the access enjoyed byothers, and indeed might exist even if no other residential picket-ing were allowed."6"

In particular, the majority would have had to explain why a distinction betweenspeech related to the function of the residence and all other speech would have raised aconstitutional problem. See note 116 supra and accompanying text. Instead, it posed severalexamples to illustrate the alleged underinclusiveness of the statute's exceptions, each ofwhich, 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,

242 [Vol. 68:203


As an access case, then, Carey seems completely defensible. Theequal-or-greater neutrality rule that the Court seemed to applymay constitute a practical tool for resolving the issue of access totraditional channels of political expression. The discriminationprinciple on which the rule rests, however, is distinct from the ac-cess issue. The problem with Carey is that the Court obscured thisdistinction. It purported to address the question of discriminationgenerally and laid down a rule that by its terms applies to caseswhere access problems do not exist. As argued above, resort to anequal-or-greater rule of this scope seems contrary to logic and atodds with those Court decisions that recognize separate categoriesof speech that enjoy different degrees of constitutional pro-tection.

170

The question remains whether the Carey majority could havereached its result by relying solely on a viewpoint or hierarchicalneutrality rule. Unlike Mosley, where at least a case can be madefor the existence of viewpoint discrimination, no aspect of the tol-erated residential picketing seems competitive with the prohibitedspeech. Nor is it clear that the exceptions to the Illinois statuteviolated hierarchical neutrality. As the Court interpreted the stat-ute, each of the exceptions related to private commercial disputesrather than to political questions, and the Committee Against Ra-cism's speech, as the Court noted, occupied the highest rung in thefirst amendment hierarchy.17 1

In sum, Carey seems best understood as a right-of-access casemasquerading as a discrimination decision. As an access decision,the opinion can be faulted for its failure to reveal its reasoning andits 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 torest on a decision that the government remains free to reverse. This last point was used bycommentators to criticize Mosley's apparent reliance on a discrimination rather than anaccess rationale. See Note, The Public Forum: Minimum Access, Equal Access, and theFirst Amendment, 28 Stan. L. Rev. 117, 141 n.157 (1975); Note, Equal but Inadequate Pro-tection: 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. at469 (statute would not allow picketing of residence used by county chairman to meet withdistrict captains for discussion of controversial issues).

19821

Virginia Law Review

the decision applies only to mayors' residences and only with re-spect to political speech, or whether the Court intended a broaderaccess right, but later cases can address these issues. As a discrimi-nation decision independent of the access issue, however, Careyseems indefensible.

3. The Metromedia Case

Perhaps not surprisingly, the most recent of the Court's majorcontent-discrimination cases is its most confused. Metromedia,Inc. v. City of San Diego17 2 presented a first amendment challengeto a San Diego ordinance that regulated outdoor advertising dis-plays. Different restrictions applied depending on whether themessage of the sign related to the premises on which it was lo-cated. "Off-site" billboard displays were forbidden except for holi-day 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 manu-factured or sold on the premises, or to contain religious or histori-cal identification.174

Seven of the Justices agreed that San Diego could prohibit alloff-site commercial advertising in spite of its tolerance of on-siteadvertising. Four of these seven, plus Justices Brennan and Black-mun, nevertheless regarded the ordinance as unconstitutional, buttheir reasons differed significantly. Chief Justice Burger, JusticeRehnquist, and Justice Stevens would have upheld the ordinanceon its face, although Justice Stevens suggested that a constitu-tional 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 courtconstruction). Although none of the opinions made this point, the exception for politicalcampaign signs also may have been excised from the ordinance through judicial construc-tion. The California Supreme Court limited application of the ordinance to signs "perma-nently" attached to the ground or some structure. Metromedia, Inc. v. San Diego, 26 Cal. 3d848, 856 n.2, 164 Cal. Rptr. 510, 513 n.2, 610 P.2d 407, 410 n.2 (1980). The political signexception, by contrast, applied only to "temporary" signs that were "erected or maintainedfor no longer than 90 days." San Diego Ordinance No. 10795, § 101.0700(F)(12). One couldconstrue the ordinance, however, as applying to displays temporarily maintained on perma-nent billboards.

174 See 101 S. Ct. at 2885 n.1, 2886 & n.3.

244 [Vol. 68:203


not reach a consensus even as to the issue presented by the case.For Justices Brennan and Blackmun, the case in "practical effect"involved a total ban on billboard advertising, and as such, theywould have found the ordinance invalid. 17 5 Chief Justice Burgerand Justices Rehnquist and Stevens agreed that the question of atotal ban was before the Court, but they would have upheld therestriction. 176 Justices Stewart, White, Marshall, and Powell re-fused to reach the total ban issue and relied exclusively on the or-dinance's content discrimination to invalidate it. 1"

Finding order in this melange of conflicting perspectives andopinions seems almost a Sisyphean task. Perhaps the most fasci-nating aspect of the case, however, is precisely the variety of dis-crimination rules propounded by one or more Justices. By tracingthrough each of these rules as it was developed in the case, onemay 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 JusticeStevens and implicitly adopted by Chief Justice Burger and Jus-tice Rehnquist.1 7 8 Justice Stevens approached the case differentlyfrom his Brethren by asserting that the plaintiffs-billboard com-panies-lacked standing to attack the restrictions imposed on on-site advertising displays.M For him, the case involved only asweeping ban on billboard advertising with a few narrow excep-tions. He began by asking whether complete elimination of thischannel of expression would violate the first amendment. Afterconcluding that it would not, for reasons that fall outside the scopeof this article,1 80 he then examined the exceptions. He found onlythe 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 ofmessages."); 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 eco-

nomic and aesthetic interests and the adequacy of the overall communication market in thevicinity. Id.

19821

Virginia Law Review

He observed that "if there were reason to believe that billboardswere especially useful to one political party or candidate, this ex-ception would be suspect."181 Because no evidence of such hiddenfavoritism existed, and because, for him, only viewpoint discrimi-nation presented a constitutional problem, Justice Stevens wouldhave sustained the ordinance. 182

b. The Plurality: Equal-or-Greater and Hierarchical Neutrality

The plurality opinion of Justice White, joined in its entirety byJustices Stewart, Marshall, and Powell, 83 is the most convolutedof the five opinions in the case. The plurality employed a differentanalysis than did Justice Stevens and relied on alternate holdingsthat suggested three different discrimination rules. Rather thandistinguish billboards from on-site signs, the plurality regarded alloutdoor display signs as fungible. It first sustained the ordinance'sdistinction between commercial advertising relating to the prem-ises and other commercial speech. After determining that a com-plete ban of commercial advertising would not violate the Consti-tution, the plurality reasoned that "[i]t does not follow from thefact that the city has concluded that some commercial interestsoutweigh its municipal interests in this context that it must givesimilar weight to all other commercial advertising. ' On its face,this argument permits the government to favor one form of com-mercial speech over its competitors. The plurality apparentlywould tolerate even viewpoint discrimination if it were limited tocommercial speech. This position, although inconsistent with gen-eral first amendment principles, is defensible to the extent it re-flects a convergence of the constitutional protection given commer-cial speech and that provided other economic interests subject to

181 Id. at 2917. Because of his standing determination, Justice Stevens did not reach thequestion whether the restrictions of on-site signs were constitutional.

182 Id. Justice Stevens has developed his position on viewpoint discrimination in severalcases. See Widmar v. Vincent, 102 S. Ct. 269, 278-80 (1981) (Stevens, J., concurring in thejudgment); NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 618-19 (1980) (Ste-vens, J., concurring in the judgment); Consolidated Edison Co. v. Public Serv. Comm'n, 447U.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 theordinance's distinctions among kinds of commercial speech.

184 101 S. Ct. at 2895.

[Vol. 68:203246


governmental regulation.1 8 5

The plurality next examined the distinctions drawn by the ordi-nance among various forms of noncommercial speech and betweencommercial and noncommercial speech and found two reasons forfinding these distinctions unconstitutional. It first noted that theCity did tolerate some commercial speech on fixed display signs bypermitting on-site advertising. It then held that "the city may notconclude the communication of commercial information concerninggoods and services connected with a particular site is of greatervalue than the communication of noncommercial messages."18 Itsreasoning constitutes a variant of the equal-or-greater rule: al-though the government may discriminate relentlessly among com-mercial messages, the tolerance of any commercial speech requiressimilar treatment of all speech of superior value.

The plurality also observed that the ordinance permitted reli-gious symbols, commemorative plaques, signs conveying the time,temperature, and news, and temporary political campaign signs,but allowed no other "noncommercial or ideological" messages.187These distinctions represented another form of impermissible dis-crimination: "Because some noncommercial messages may be con-veyed on billboards throughout the commercial and industrialzones, San Diego must similarly allow billboards conveying othernoncommercial messages throughout those zones."188 The rule ap-pears to be one of hierarchical neutrality for the category of "non-commercial" speech.18 9

For the reasons already discussed in this article, the plurality'schoice 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 protec-

tion than any other form of commercial activity, see Jackson & Jeffries, supra note 22. Seealso Baker, supra note 34; Burger Court, supra note 29, at 458-61. But see Redish, The FirstAmendment in the Marketplace: Commercial Speech and the Values of Free Expression, 39Geo. 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. Seenote 39 supra.

190 See notes 167-70 supra and accompanying text.

Virginia Law Review

result through a rule couched in terms of discrimination. 191 Al-though privately owned, billboards are a useful channel of expres-sion, and an attempt to eliminate them raises some of the sameproblems as does restriction of more traditional channels. Somesupport for the hypothesis that the plurality really was grapplingwith an access issue comes from its treatment of Lehman, which itdistinguished as a "unique" fact situation involving a "govern-ment-created" forum.192

The nature of the forum, however, suggests a significant problemlurking in the plurality's opinion. Because billboards are not "gov-ernment-created" but rather lie in private hands, the question ofaccess to billboards is considerably more complex than the ques-tion of access to streets and other government-controlled fora. Un-less the Court intended to enforce access rights onto private prop-erty, a course it generally has avoided,193 any access claim it mighthave entertained would have been qualified by the retained rightof the private owners to refuse to sell advertising space. The inabil-ity or disinclination of the courts to control the terms of access, inturn, undercuts the argument for judicial abrogation of govern-mental restrictions. By substituting discrimination rhetoric for ac-cess analysis, the plurality may have overlooked the difficulty ofthe access question and may have reached a result it could nothave supported if it had asked the right questions.

The plurality's requirement of hierarchical neutrality, by con-trast, seems defensible, but problematic. At the least, the differen-tial treatment of campaign advertising and other discussion ofpublic issues presented a discrimination issue different from thatin Lehman. Unlike Shaker Heights, San Diego treated some politi-cal points of view differently from others. It gave electoral candi-dates an advantage in relation to others seeking to promote morefundamental political or social changes. Although the Court had noevidence that such discrimination actually occurred, the risk of po-

ll" See id.192 101 S. Ct. at 2896 n.19.293 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 thegovernment's ability to ration access. See note 155 supra. The Court generally has rejectedfirst amendment claims of access to private property in cases where the owner opposedthem. As a result, monitoring private owners' decisions as to who may use billboards, andfor what purposes, would be exceedingly difficult.

[Vol. 68:203


tential discrimination may have provided a sufficient reason to in-validate the distinction.

Viewed from this perspective, the effects of viewpoint and hier-archical neutrality rules tend to converge. A viewpoint rule de-mands equality of treatment of all speech that can be seen as com-petitive. A hierarchical rule makes the same demand, but inaddition assumes that all speech within a particular hierarchy ismutually competitive. In the context of overbreadth challenges,where the party attacking a statute need not have suffered fromintolerable discrimination himself,194 the practical effect of the tworules may be identical due to the cognizability of hypotheticalharms.

On the other hand, the more cautious posture adopted by Jus-tice Stevens is not without merit. Legitimate reasons can exist fordistinguishing speech of similar constitutional significance but ad-dressed to different subjects. Systematic, organized political debatecannot proceed without an agenda and a requirement that speak-ers stick to the topic.1 9 5 Imposition of such rules does not necessa-rily suggest a government attempt to rig public debate. Roomshould remain for inquiry into the neutrality of the government'sreasons for imposing particular topical restrictions in light of therestrictions' potential for creating viewpoint discrimination and al-ternate opportunities for expression about the restricted topics.1 9

c. The Concurrence: Protected-Speech Neutrality

Justice Brennan, in an opinion joined by Justice Blackmun,agreed with the plurality's conclusion that San Diego's ordinanceviolated the first amendment. In most respects, however, his posi-tion was further from that of the plurality than the plurality's wasfrom the dissenters'. Like the dissenters, Justice Brennan believedthe ordinance for all practical purposes constituted a completeprohibition 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. DemocraticParty 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 forpurposes of state regulation of their activities).

24919821


conclusion as to its constitutionality. 97 As with the dissenters, themerits of Justice Brennan's resolution of this access issue falloutside the scope of this article.

Justice Brennan went on to address the Court's premise that aban on only commercial billboard advertising would pass constitu-tional muster. Although he conceded that the Court's decisionshad recognized a distinction between commercial and noncommer-cial speech, he insisted that the plurality had erred "in assumingthat a governmental unit may be put in the position in the firstinstance of deciding whether the proposed speech is commercial ornoncommercial."1" 8 In his view, application of this standard wouldinvite the same unacceptable discrimination as the standardlesspermit cases had sought to prohibit.199

In the terminology of this article, Justice Brennan advocated arule of protected-speech neutrality. The arguments he employed inMetromedia suggest exactly why this rule is an implausible solu-tion to the discrimination problem. There is no readily apparentreason why courts are better qualified than other governmentalbodies to distinguish commercial from noncommercial speech, es-pecially given the relatively clear functional standard on which theCourt has based the distinction.20 Justice Brennan's assertion thatthe line is so vague as to invite unfettered discretion, if true, wouldimply a disturbing observation about the Court's own decisionmak-ing. This may be precisely what Justice Brennan intended, how-ever. One suspects that the root of Justice Brennan's objectionmay be not a concern about the inability of nonjudicial officials todistinguish between commercial and noncommercial speech, butrather resistance to the use of the distinction in the Court's ownfirst amendment analysis.20 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 note193 supra. He would not have allowed any ban on billboards except as part of a comprehen-sive 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 re-lated 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).


V. CONCLUSION

A close reading of the Court's decisions suggests that only rarelyhas it departed from an exclusive rule of viewpoint neutrality, andthen usually it has done so to avoid a difficult access question. Tothe extent the Court has disguised access questions as discrimina-tion problems, it has both confused analysis of the access problemand suggested the existence of unacceptably broad antidiscrimina-tion rules. Nowhere is this confusion and the potential for mislead-ing signals more evident than in Metromedia.

A careful examination of the problem of content discriminationin light of traditional first amendment jurisprudence indicates thatthe Court has said far more than it has meant when it has pro-claimed the impermissibility of distinctions based on the contentof speech. To the contrary, distinguishing speech according to itscontent is the only intelligible way to commence any first amend-ment analysis. The distinctions will vary with the substantive val-ues one believes underlie the amendment, but the necessity ofthese distinctions will not.

The pattern of the Court's decisions over the last decade dis-plays considerable sensitivity to differences in the content ofspeech. What the Court has not done yet is to identify the well-springs of its concerns about content and particularly their rela-tionship to the problem of discrimination. Until it does, the Courtis likely to trip over its own rhetoric and to sow confusionelsewhere.

1982]

THE FIRST AMENDMENT AND CONTENT DISCRIMINATION III*people.virginia.edu/~pbs/68VaLRev203.pdf · THE...

Documents

Transcript of THE FIRST AMENDMENT AND CONTENT DISCRIMINATION III*people.virginia.edu/~pbs/68VaLRev203.pdf · THE...