Con Law on the UBE / MEE - Content-Based vs. Content-Neutral Speech and Restrictions

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Content-Based vs. Content-Neutral Speech and Restrictions

Most would agree that the First-Amendment within the confines of Con Law for the bar exam is rather tricky.  While the rules surrounding same tend to lean toward being objective, the way in which they are tested on both MEE and MBE questions are certainly more subjective.  Therefore, it is one thing to understand / know the rules surrounding the 1st Amendment, it is another to apply them through the confines of a multiple choice or essay question.

One such area that truly gives people pause is with respect to the regulations / restrictions surrounding content-based vs. content-neutral communication(s).

Content-Based Regulation
For starters, it is generally true that a content-based regulation must pass strict scrutiny.  That is the first thing to remember with respect to a content-based regulation.  We must then be aware that a content-based regulation is a regulation of speech or expression that is based on the substance of the message being communicated, rather than just the manner or method in which the message being expressed.

That said, laws regulating the unprotected categories of speech discussed above are not be subjected to this level of review. So long as such laws are not overly broad or unconstitutionally vague, the regulation of unprotected categories of content (pornography, fighting words, etc) will pass muster under the First Amendment.

A content-based regulation of any other area of speech, however, is presumptively unconstitutional. To save such a statute, the government must show that the regulation is narrowly tailored to achieve a compelling government interest. Application of this standard will almost invariably lead to invalidating the law in question!  Keep this in mind when answering a question with a content-based regulation.

We should also distinguish a “content-based” regulation from a “viewpoint-based” regulation. Content-based regulations can be split into two sub-categories, each of which is subject to strict scrutiny. First, if a law regulates the expression of some viewpoint, it is content-based. Second, if a law regulates the discussion of some topic it is also content-based.

Content-Neutral Regulation (“Time, Place, Manner” Regulation)
A content-neutral regulation is a restriction on the manner in which an expression can be communicated or conveyed. These restrictions apply equally to all communications, regardless of the message or view being espoused.   They are restrictions that are justified without reference to the content of the regulated speed. Unlike content-based regulations, which are subject to strict scrutiny, content-neutral restrictions will not be found unconstitutional provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.
Content-neutral regulations are also called “time, place and manner restrictions,” as the regulation seeks not to limit any particular type of speech, but merely to regulate the circumstances under which the speech may take place.
Think Defenses!  (ALWAYS be mindful of a possible defense…)
Just as with Torts, Contracts, Wills, Corporations, etc., in Con Law, we must always be thinking of possible defenses.  Two defenses generally lumped together (though either or both may be applicable in an essay or MBE question) are vagueness and overbreadth. 

Regardless of the category of speech involved, there are two limitations which are consistently imposed on a regulation of speech. First, a law must not be overly broad, and second, a law must not be unconstitutionally vague. A failure on either part will invalidate a law, even if the speech intended to be restricted is otherwise unprotected. A law is overbroad if it regulates substantially more speech than is permissible in the Constitution.

For example, a statute limiting “fighting words” without defining such words may be deemed overbroad. While the law might be intended to regulate only words that incite violence, which is a permissible regulation, the effect is also to regulate words that may not incite violence. A law is unconstitutionally vague if it would be impossible for a reasonable person to determine what speech or conduct is or is not permissible and would force a reasonable person to guess at its meaning.  The above regulation may also be deemed vague.

In summation, we should consider not just whether the regulation is content-based or content-neutral, but we should also determine whether a possible defense to that regulation exists.

Should you have any additional questions about content-neutral vs. content-based restrictions, the First Amendment in general or another area of the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com.

GOOD LUCK!

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