In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining the rationale for these exceptions, or in squaring them with the general principle of content neutrality. As a result, the Court’s First Amendment opinions often seem arbitrary and unpersuasive. Far from illuminating free speech problems, the doctrine of content neutrality, when taken as the central concern of the First Amendment, only makes them more obscure. The time has come to reconsider the content neutrality doctrine. In this Essay, I argue that content neutrality is an important element of free speech jurisprudence, but that it should not be regarded as "the first principle of the First Amendment." Instead, it should be understood within a broader normative framework. The neutrality doctrine is rooted in an underlying conception of autonomy. When individuals act within the scope of their own autonomy, government may not intrude into this realm by regulating the content of thought or expression. Nor may government interfere with the collective autonomy of citizens by imposing unjustified restrictions on public debate. Some acts of speech, however, should be regarded as invading the autonomy or rights of others. In such cases, the rationale for content neutrality no longer holds; in regulating speech, the government is not invading the autonomy of speakers, listeners, or the community, but instead is protecting the rightful freedom of others. After developing this view, the Essay explores the shortcomings of content neutrality when it is treated as the central principle of the First Amendment, divorced from the normative framework that is developed here. Focusing on judicial efforts to deal with hate speech in R.A.V. v. City of St. Paul, and with pornography in American Booksellers Association v. Hudnut, I argue that the courts’ increasing reliance on the content discrimination doctrine to resolve difficult First Amendment problems only obscures the crucial substantive issues at stake, and leads to hypertechnical decisions that are inaccessible to the public. This approach not only gives short shrift to other values affected by speech, it also fails to persuasively articulate and defend the values that underlie the First Amendment itself. Finally, the Essay discusses how the theory and doctrine of content neutrality should be reformed in order to avoid these difficulties while preserving its legitimate role in First Amendment jurisprudence.
Steven J. Heyman,
Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence,
Wm. & Mary Bill Rts. J.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/309