Content regulation: Is it about what we say or how we say it?

While a first-reading of Vikram Amar’s The First Amendment: Freedom of Speech; Its Constitutional History and the Contemporary Debate can often leave you feeling like “what did I just read?” the message behind content regulations in Part III is actually pretty relevant.

The two types of content limitations presented in Amar’s book are content-neutral and content-based messages. To sum up what those mean, let’s start by painting a picture of the latter:

You just got this awesome new T-shirt that says “Fuck the Patriarchy” on the front. As a hardcore feminist and firm believer in risqué clothing expression, you decide to wear it out for a day at the park. At the park, you encounter a few different people: one is a man who hasn’t yet formed an opinion on gender-equality and is interested by your shirt, the other is a mom with a two-year-old son who finds the language on the shirt to be offensive. The mom gets upset and orders you to put on a jacket, what do you do?

By covering up your shirt in this example, you’d suppress your message based on its content and stifling your right to freedom of speech.

Amar puts the idea in terms of A, B, and C:

“The state cannot prevent A from talking to B, who wants to hear A’s message, in order to protect the sensibilities of C, who is deeply offended by what A has to say. The problem with content-discriminatory laws of this kind is not that they protect C from hearing a message she wants to avoid […] but in doing so the law interferes with A’s speech to B as well.” (Page 189) The First Amendment: Freedom of Speech; Its Constitutional History and the Contemporary Debate.

In this scenario, you’re A, the man on-the-fence is B, and the angry mom is C. Just because the mom didn’t like the message (and found it downright offensive), doesn’t mean the man’s ability to hear your influential message should be affected –– and in retrospect, neither should yours to spread said message!

Content discrimination not only decides what we get to see and hear, but who gets to, and that’s unconstitutional. “This is precisely why content-discriminatory laws raise serious First Amendment concerns.” (Page 189) The First Amendment: Freedom of Speech; Its Constitutional History and the Contemporary Debate.

Then there’s the content-neutral side of things, which though the lesser of two evils, is still a regulation of speech. The University of Pennsylvania Law Review says content-neautral regulations “apply to all speech, regardless of subject matter or viewpoint.” (Page 655)

According to David L. Hudson, one example of this is found within National Park laws. In a 1984 case Clark v. Community for Creative Non-Violence, the Supreme Court banned camping as a form of protest in some U.S. national parks. The 7-2 decision wasn’t made because the Supreme Court didn’t like the substance of certain protests, but rather because the overall nature of that form of speech negatively impacted the parks.

While it’s tricky to avoid stepping on First Amendment toes with both forms of content regulations, I think content-neutral laws are usually more constitutional for the greater good. Content-based discrimination is disenfranchisement of opinion; When one point of view is limited, the other is amplified –– creating an imbalance in speech-representation.

One thought on “Content regulation: Is it about what we say or how we say it?

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  1. I absolutely agree that content-based discrimination creates an imbalance in speech-representation. The example you provided expressed that perfectly. We all have the right to express our thoughts, opinions, and beliefs in whatever form we may choose. And doing so does have the possibility to educate someone on a topic they did not understand before, or introduce them to a new idea or way of thinking. While this can be offensive to some, it is as simple as just not looking at your t-shirt that has offensive language on it. You may have the right to be upset by it, but you don’t have the right to prohibit someone from wearing it.


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