Clarifying Viewpoint Discrimination In Free Speech Doctrine

R. Randall Kelso, Spurgeon E. Bell Distinguished Professor of Law, South Texas College of Law Houston.


The preliminary decision that must be made in First Amendment free speech cases is what level of review to apply. As discussed in Part II of this article, a critical part of this inquiry is whether the government action involves viewpoint discrimination, content-based subject-matter regulation, or content-neutral regulation. Whether some government action—either statute, administrative regulation, or other official conduct—involves viewpoint discrimination is thus a critically important issue in First Amendment free speech doctrine. As discussed in Part III of this article, the Supreme Court has not done as good a job as it could in clarifying when, in general, government action involves viewpoint discrimination or instead involves content-based, subject-matter regulation. Particular areas of concern involve issues of decency and respect for the diverse beliefs and values of the American public, vulgar speech, speech that might disparage others, or speech viewed as offensive by some members of the public, even if not by the government itself. Part III provides some guidance on how all these issues should be resolved.

Once that approach is described, Part IV of this article provides an overview of free speech doctrine in terms of the various standards of scrutiny when viewpoint discrimination either is or is not occurring. Part V address how to make the overall doctrine more predictable in various areas of free speech doctrine: government funding, school context, commercial speech, and speech by government workers on matters of public concern. While the Supreme Court has done an adequate job in making standards clear, the Court has left some holes in the analysis prompting unnecessary confusion at state court, federal district court, and federal court of appeals levels. Part VI provides a brief conclusion. [Read entire article here].


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