Content Discrimination Revisited
UVA Law Faculty Affiliations
A central feature of First Amendment law is the prohibition on content discrimination: the government generally may not regulate expression on the basis of the message it communicates. It has become commonplace to say that the Supreme Court’s content-discrimination jurisprudence is deeply incoherent, if not end-determined. This article argues that, in fact, the case law is consistent in its concern and its approach. Its substantive concern is with subject-matter and viewpoint discrimination. Its approach to these forms of discrimination, for better or worse, strongly echoes the Supreme Court’s approach to invidious purpose in the Equal Protection context. Recognizing this underlying pattern points the way toward a clearer normative evaluation of the content-discrimination principle.