Amdt1.7.4.2 Viewpoint-Based Distinctions on the Face of a Law

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A law that explicitly regulates speech on the basis of the particular ideas or opinions expressed is said to be viewpoint-based “on its face.” 1 Such facially viewpoint-based laws, which are unconstitutional in most contexts,2 can take several forms. The most obvious form is a law that, by its terms, regulates speech based on “the specific motivating ideology or the opinion or perspective of the speaker.” 3

A law need not single out a particular ideology or message to be viewpoint-based, however. For example, a law that categorically prohibits “religious” speech may be viewpoint-based even if it does not draw sectarian distinctions. In Lamb’s Chapel v. Center Moriches Union Free School District, the Court considered a local public school board’s regulations that allowed organizations to use school property for “social, civic, or recreational uses” but not for “religious purposes.” 4 Based on that rule, the school district refused to allow a church to use the property to show a film series about family and child-rearing—subjects that fell within the social-or-civic-use purpose.5 The Court held that this refusal violated the Free Speech Clause: even though the school district’s regulation treated “all religions and all uses for religious purposes” alike, the school district still discriminated on the basis of viewpoint by excluding the films solely on the basis of their “religious standpoint.” 6

Laws that allow the government to determine whether speech is disparaging or offensive also raise concerns about viewpoint discrimination.7 In the 2017 case Matal v. Tam, the Court considered a provision of the Lanham Act, a federal trademark statute, that prohibited the registration of trademarks “which may disparage . . . persons, living or dead.” 8 After holding that trademarks are not a form of government speech (for which viewpoint-based distinctions are sometimes permissible),9 the Court ruled that the Lanham Act’s “disparagement clause” violated the First Amendment.10 The plurality opinion explained that although the clause “evenhandedly prohibit[ed] disparagement of all groups,” it discriminated on the basis of viewpoint because it “denie[d] registration to any mark that is offensive to a substantial percentage of the members of any group,” and “[g]iving offense is a viewpoint.” 11 Two years later, the Court struck down the Lanham Act’s bar to registering “immoral or scandalous” trademarks on similar grounds.12

By comparison, in a case involving a government-funded program, the Court upheld a statute requiring a federal agency to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public” in awarding grants to support the arts.13 The Court did not “perceive a realistic danger” that the statute would “compromise First Amendment values.” 14 The program, the Court observed, was based on otherwise “subjective” grant criteria such as artistic excellence.15 Given that context, making “decency and respect” a consideration was unlikely to “effectively preclude or punish the expression of particular views.” 16

Iancu v. Brunetti, No. 18-302, slip op. at 6 (U.S. June 24, 2019). back
As explained in the Overview, there are certain contexts in which the government can draw viewpoint-based distinctions, such as when the government itself is the speaker. See Amdt1.7.4.1 Overview of Viewpoint-Based Regulation of Speech. See also Amdt1.7.8.2 Government Speech and Government as Speaker; Amdt1.7.13.6 Selective Funding Arrangements; Amdt1.7.13.7 Government’s Message Versus Private Speakers. back
Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015) (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995))). back
508 U.S. 384, 387 (1993). back
Id. at 393. back
Id.; see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 831 (1995) (holding that a public university’s denial of funding to a student-run religious publication amounted to viewpoint discrimination because the university “does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints” ). back
The Court held in Snyder v. Phelps that the government cannot punish speech in a public place on a matter of public concern “simply because it is upsetting or arouses contempt.” 562 U.S. 443, 458 (2011). In that case, the Court held that the First Amendment barred an intentional infliction of emotional distress claim against members of a church who picketed a soldier’s funeral. Id. at 459. In the Court’s assessment, “any distress” caused by the picketing “turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself.” Id. at 457. back
Matal v. Tam, No. 15-1293, slip op. at 5 (U.S. June 19, 2017) (quoting 15 U.S.C. § 1052(a)). back
Id. at 18. A plurality of the Court further rejected analogies to federal benefits and government-funded programs for which “some content- and speaker-based restrictions are permitted.” Id. at 18–23 (plurality opinion). The Court did not resolve the question of whether trademarks are commercial speech. The plurality reasoned that the law failed even the “relaxed” intermediate scrutiny standard applicable to commercial speech regulations. Id. at 23–24. back
Id. at 26 (majority opinion). back
Id. at 22 (plurality opinion). At least four of the concurring Justices agreed with the plurality that the clause discriminated on the basis of viewpoint. Id. at 1 (Kennedy, J., concurring in part and concurring in the judgment). back
Iancu v. Brunetti, No. 18-302, slip op. at 6 (U.S. June 24, 2019) (reasoning that “the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation” ). back
Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 576 (1998) (quoting 20 U.S.C. § 954(d)(1)). See Amdt1.7.13.6 Selective Funding Arrangements. back
Nat’l Endowment for the Arts, 524 U.S. at 583. back
Id. at 585, 589–90. back
Id. at 583, 590. back