Speech Regulated for Its Content or Viewpoint Generally

The central tenet of the First Amendment is that ideas may not be suppressed because they are unpopular, offensive, or even hateful. Government actions restricting or penalizing certain kinds of speech because of hostility to the ideas expressed are considered to constitute viewpoint-discrimination and are generally impermissible. For example, a public museum may not exclude art because of concern that it might offend some viewers’ religious beliefs.

While the terms are sometimes confused, viewpoint discrimination should be distinguished from content discrimination, which categorizes types of expression and does not restrict speech based on the message conveyed. For example, a decision to display only abstract art is content-based, but would be permissible under the First Amendment absent evidence of an intent to suppress specific ideas. Courts examine content-based restrictions closely, however, as they often serve as a pretext for viewpoint-based restrictions.

Content-neutral regulations often seek to regulate conduct, and restrict speech incidentally. An example would be a regulation against littering that may incidentally burden leafleting, which is protected speech. In such cases, the regulation would likely be upheld if it furthers an important or substantial government interest unrelated to the suppression of free expression, and adequate alternative channels of communication exist .

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.