Faculty Q&A: Kendrick Defines Pattern for Supreme Court's First Amendment Jurisprudence

Though many critics have pegged the U.S. Supreme Court's First Amendment doctrine as incoherent, the court's opinions have long shown a definable pattern, argues University of Virginia law professor Leslie Kendrick in her latest article.

Leslie Kendrick

In " Content Discrimination Revisited," published in the April 2012 issue of the Virginia Law Review, Kendrick explains that the court's system for evaluating whether speech is legal under the First Amendment resembles its test for whether a law is discriminatory under the 14th Amendment's equal protection clause.

What is content discrimination in the context of the First Amendment?

The court has defined content discrimination in many ways. One of its earliest descriptions said that the government generally may not regulate speech "because of its message, its ideas, its subject matter, or its content."

So, for instance, a law that regulates sound trucks because they convey political messages is content-discriminatory. A law that regulates sound trucks because they are noisy is not; the law is geared at the volume of the speech, not its message. Content-discriminatory laws must pass strict scrutiny, while "content-neutral" laws are given much lower scrutiny.

But "content discrimination" can be construed narrowly or broadly. It might encompass viewpoint discrimination (for example, a law that regulates only anti-abortion speech), subject-matter discrimination (a law that regulates all speech on abortion), message-related discrimination (a law that regulates all advocacy, on whatever subject) or communication-related discrimination (a law that singles out a particular form of communication, such as leafleting, or a particular medium, such as cable or broadcasting).

Why have many court observers been confused by the Supreme Court's jurisprudence on content discrimination?

The Supreme Court hasn't been clear about its conception of content discrimination. It hasn't really said whether it means only viewpoint discrimination, only subject-matter and viewpoint discrimination, or something more expansive, such as all message-related discrimination or all communication-related discrimination. Because the Supreme Court has not clearly articulated which forms of discrimination are presumptively suspect and which are not, its applications of the content discrimination principle can look haphazard.

You argue that the court's opinions are more coherent than many recognize. How so?

When the court says "content discrimination," it means discrimination on the basis of subject matter or viewpoint (and, in rare cases, discrimination on the basis of particular choice of words).

When faced with other forms of discrimination — such as differential treatment of various media — the court has not been troubled by the mere fact that, for example, cable TV and broadcast TV are treated differently. Instead, it has been concerned about whether the differential treatment conceals covert subject-matter or viewpoint discrimination.

Recognizing this allows us to see that certain controversial cases actually fit within a preexisting pattern. For example, the court's approach in Hill v. Colorado, where it upheld a state restriction on "oral protest, education and counseling" in front of health-care facilities, is of a piece with earlier cases, where it upheld regulation of solicitation and picketing. Where a law regulates a whole form of expression, such as protest, solicitation or education, regardless of any particular subject matter or viewpoint, the court has looked for evidence of covert subject-matter or viewpoint discrimination. And if it finds none, it upholds the law.

Why should we care that there is a definable pattern to the court's jurisprudence, if many argue that the law should change over time anyway?

We should care because we want to know whether the court's jurisprudence is clear and principled. Critics of content-discrimination law argue that it's neither. They say that the court uses the same term in different ways in different cases and that those shifts seem outcome-driven. I'm arguing that while the coherence of the court's jurisprudence is latent rather than patent, the cases do reveal a clear conception of content discrimination. Moreover, that conception has remained consistent over time, and, though some other conceptions might be better, this one is at least defensible. The law could well change, but it would still be worthwhile to show that what the law was changing fromwas a consistent and plausible rule, rather than a complete muddle.

What are the repercussions for recognizing that such a pattern exists?

My project is primarily descriptive: I am seeking to define what the court's conception of content discrimination is. This descriptive project is worthwhile in itself, if it gives scholars, advocates or lower courts a better sense of what the Supreme Court is actually doing.

Accurately describing the court's jurisprudence is also an important preliminary to informed normative criticism. My analysis shows that the court treats subject-matter and viewpoint discrimination alike. This fact is open to criticism. It also shows that the court treats other forms of message-related discrimination differently from these two — this fact, too, is open to criticism. You can take issue with the court on either of these points, but that seems more profitable than throwing up your hands and concluding that the entire area is incoherent.

You suggest that the court's content-discrimination jurisprudence is analogous to its interpretation of the equal protection clause. How so, and why is that important?

Both equal protection and content-discrimination law involve the definition of what counts as suspect discrimination and the search for instances of such discrimination. In both the definition and the search, the court has taken similar approaches in these two fields. For purposes of defining suspect discrimination, laws that facially discriminate by subject matter or viewpoint are automatically suspect, in the same way that, say, racial classifications are automatically suspect. And in searching facially "neutral" laws for covert suspect discrimination, in both areas the court requires clear evidence of particular kinds and, in the absence of such evidence, is deferential toward policymakers.

This analogy is important for a descriptive reason and a normative reason. Descriptively, it shows that the court's approach to content discrimination, far from being an incoherent mess, is actually quite familiar from another area of law. Normatively, it enables criticism by offering a crisp picture of the two doctrines alongside each other. Should content discrimination and equal protection look so much alike? If we think that content discrimination and, say, racial or gender discrimination are wrongful for different reasons, then perhaps not.

You point out some rulings that are exceptions to the court's consistency, including some cases that resemble a First Amendment case heard by the court in January, FCC v. Fox, on whether the FCC's regulation of expletives is unconstitutionally vague. How might the court approach the case?

Regulation of adult content on broadcast television and radio is one of two exceptional areas where the court has been less suspicious of discrimination by subject matter and choice of words (and viewpoint, if you understand adult content as advocating a particular view of the world). The court therefore won't feel directly constrained by the pattern I describe. What the pattern does show, however, is that the court's prohibition on content discrimination is a very powerful default rule. Any exception to it should require a strong justification, something the court's broadcast jurisprudence has failed to offer so far.

If the court wanted to continue the broadcast exception, there are two different tacks it could take. First, it could continue to claim that broadcast is unique, though on what basis is an interesting question. Its original claims — that broadcast was uniquely pervasive and uniquely accessible to children — are hardly true today, given the popularity of cable and other subscription services. As another ground for an exception, the court might describe broadcast licenses as privileges bestowed with certain conditions, including a decency requirement. The Roberts Court has been quite permissive in such "unconstitutional conditions" cases, so placing broadcast licenses in that category might prove appealing to it.

Second, the case involves an interest in protecting minors that the court has said may, at least in theory, justify content regulation. So far the Roberts Court has seemed uninterested in this rationale (as in the violent-video games opinion last term), but it could revive it. Here, interestingly, the court could try to use to its advantage that broadcast is no longer uniquely pervasive and accessible. It could claim that, in our media-saturated world, it is important to maintain a space that is appropriate for children and that doing so within broadcast does not materially infringe the interests of adults, given all their readily available media alternatives.

How does this article fit in with your overall scholarship?

I'm interested in when the government may regulate expression and why. I'm particularly interested in developing the best possible normative justifications for the law we have. Sometimes, though, just answering the question "What law do we have?" turns out to be a job in itself. This was one of those times.

What are you working on next?

I'm looking at a pervasive feature of First Amendment doctrine that makes protection for speech turn on the speaker's state of mind. Think of the actual malice standard in New York Times v. Sullivan, or the intent requirement in Brandenburg v. Ohio. These requirements seem odd, because the potential harm of speech is not related to the intentions of the speaker — innocent false statements may be just as harmful as lies, and unwitting incitement no less damaging than the intentional variety. I'm making the case that, despite appearances, whether a speaker has a "guilty mind" matters for how we understand freedom of expression.