Why Government Can’t Restrict Speech It Doesn’t Like: Viewpoint Discrimination Explained

During Black Lives Matter protests across the United States in the summer of 2020, protesters marched, chanted and displayed signs. They also drew on streets and sidewalks with paint and chalk. Even though local laws often prohibited this form of expression on public streets and sidewalks, few protesters – if any – were arrested.

In Washington, D.C., police officers did not arrest Black Lives Matter protesters who painted messages in public spaces. The city even formally designated a city block as “Black Lives Matter Plaza,” painting the street with those words.

But when two pro-life advocates drew “Black Pre-Born Lives Matter” on a public sidewalk that same summer, they were arrested. The protesters sued the city, alleging their First Amendment rights had been violated. In Frederick Douglass Foundation Inc. v. District of Columbia, a federal appeals court said that the city’s selective enforcement of the law prohibiting defacement of public property violated the First Amendment’s clear prohibition against discrimination based on viewpoint:

“The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.”

What is viewpoint discrimination?

The First Amendment prohibits the government from discriminating based on viewpoint. Viewpoint discrimination occurs when the government favors or disfavors a certain message in the marketplace of ideas.

Viewpoint discrimination can occur in several ways:

• When the government enacts laws or regulations that are discriminatory. If a law is enacted that singles out speakers or messages for preferential or detrimental treatment, it can be challenged as impermissible viewpoint discrimination. In Speiser v. Randall (1958), the U.S. Supreme Court struck down a California law that gave war veterans a tax exemption, but only if the veterans swore a loyalty oath to the United States. Because the law rewarded those who spoke positively but didn’t offer the same treatment for those who dissented or remained neutral, the law was impermissibly viewpoint based.
• When laws or regulations seem neutral but include certain exemptions that are viewpoint based. The Supreme Court struck down an Illinois statute in 1980 that prohibited picketing in front of a private residence but allowed labor picketing. The court explained in Carey v. Brown that the law allowed some messages – specifically pro-labor messages – to be heard via this exception, while all others were prohibited.
• When laws do not restrict speakers or messages but do restrict a particular form of expression, it can also be viewpoint discrimination. In Tinker v. Des Moines Independent Community School District (1969), John and Mary Beth Tinker and four other students were suspended for wearing black armbands to school to protest the Vietnam War. They had violated a rule that had been enacted only weeks before as school officials got wind of their protest. On its face, the rule would seem to be even handed and without any exceptions or favoritism, but the court found that it was designed to prevent anti-war protests.
• Finally, laws or ordinances can be viewpoint discriminatory in their application. This occurs when the government selectively enforces a neutral law or regulation – as in the case of the anti-abortion protesters in Washington, D.C.

What does it mean to be viewpoint neutral?

“Viewpoint neutrality” is the opposite of “viewpoint discrimination.”

One example of viewpoint neutrality is what the Des Moines Independent School District could have done – but did not do – in Tinker. Instead of banning black armbands, the school could have banned all clothing with political messaging. This may still have raised First Amendment issues because the school would be banning expressive content, but the school would also have had a better chance of justifying that restriction because it would not have been banning particular anti-war messages.

RELATED: Free speech in schools: What can (and can't) students say?

Another example of viewpoint neutral restriction of speech was when President George W. Bush made an unplanned stop at a diner in Jacksonville, Oregon, during his 2004 re-election campaign that drew attention from the public. The Secret Service separated his supporters and protesters, with the protesters kept further away from the president. Some of the protesters filed a First Amendment lawsuit alleging viewpoint discrimination by the Secret Service. The Supreme Court disagreed in Wood v. Moss in 2014, saying the protesters were not treated differently based on the message they were expressing but instead based on the security risk they presented.

When is restricting speech based on its content viewpoint discrimination?

Viewpoint discrimination is a type of content-based restriction of speech that poses particular free speech concerns because it does not allow a level playing field for all messages.

The Supreme Court says that viewpoint discrimination is a particularly dangerous form of content-based restriction of speech. Content-based regulation of speech is almost always struck down as a violation of the First Amendment. Viewpoint discrimination has never been upheld.

One way to understand the distinction is to think about content-based restrictions of speech as subject matter limits – where an entire topic is restricted – while viewpoint discrimination picks sides within that topic. In content-based restriction of speech, the government regulates speech and expression regardless of the opinion being expressed; viewpoint discrimination expressly regulates speech based entirely on the opinion being expressed.

In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the court said the university was engaged in viewpoint discrimination when it refused to allow a student publication dedicated to religious topics to receive student activity funds available to other student publications.

In Burson v. Freeman (1992), the Supreme Court upheld a ban on political campaigning within 100 feet of a polling place. The law was viewpoint neutral but would have been viewpoint discriminatory if it had explicitly or in its enforcement prohibited speech by only one party or favoring one viewpoint on an issue – for example, prohibiting anti-war signs but allowing pro-war signs.

Finally, the court decided three cases related to sections of the federal trademark law in a way that distinguishes viewpoint discrimination from content-based restriction of speech. In Matal v. Tam, the court struck down a ban on registering “disparaging terms” (in this case a registration for The Slants as a band name). The court ruled the same way in Iancu v. Brunetti with regard to scandalous or immoral marks (in this case, a clothing line using the term F-U-C-T). But in Vidal v. Elster, the court upheld a restriction on trademarks that include a specific living person’s name without that person’s written consent because it applied whether the mark was used in a positive or negative manner.

How did the idea of preventing viewpoint discrimination come to be part of the First Amendment?

Concerns about viewpoint discrimination relate to one of the fundamental reasons for having a strong First Amendment: the marketplace of ideas. This idea was first expressed by John Stuart Mill in his famous essay “On Liberty.” Mill said it is important to be exposed to all opinions, even dissenting opinions, because “If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

The Supreme Court has been so guarded against viewpoint discrimination because of the threat it presents. Viewpoint discrimination puts a thumb on the scale of public opinion, favoring one side over the other.

Justice Oliver Wendell Holmes expressed contempt for viewpoint discrimination in his famous dissent in Abrams v. United States (1919) saying, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” This idea was carried forward, particularly in the 1930s and 1940s.

In Schneider v. State of New Jersey (1939), the court recognized the danger of a city ordinance banning leafletting without a permit that gave unlimited discretion to city authorities to grant or deny permits because that would let the government decide what messages are heard.

A series of cases involving Jehovah’s Witnesses during this period also protected free speech from viewpoint discrimination. The best known of these is West Virginia State Board of Education v. Barnette (1943) in which the Supreme Court struck down a requirement that school children stand for the pledge of allegiance each day. The opinion by Justice Robert H. Jackson also contains perhaps the clearest possible condemnation of viewpoint discrimination:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

What are some examples of viewpoint discrimination and some viewpoint discrimination cases?

In addition to the examples above, the federal courts have used the prohibition on viewpoint discrimination to uphold one of the key principles of the First Amendment: that it exists to protect even the most insulting, offensive and distasteful speech imaginable:

• Flag desecration: The Supreme Court overturned the conviction of Gregory Lee Johnson, who was convicted of burning an American flag at the 1984 Republican National Convention in Dallas while chanting “America, the red, white and blue, we spit on you.” The opinion by Justice William Brennan in the 1989 case Texas v. Johnson included this passage: “[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
• Cross burning: In 1992, the court unanimously struck down a St. Paul, Minnesota, ordinance that criminalized putting a symbol on private property that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” – in this case, a burning cross. Even though the city said it would only enforce the law in situations involving unprotected “fighting words,” Justice Antonin Scalia held in A.V. v. City of St. Paul that it was viewpoint discriminatory because it really punished hateful speech, whether or not it was intended to provoke a violent response.
• Blasphemy: In the 1990s, the city of New York granted funds to support the arts. However, it refused to give any funding to a museum that displayed a piece called “The Holy Virgin Mary” that contained elephant dung and was deemed offensive to Catholics. The museum successfully sued the city for violating the First Amendment.

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Free speech is protected from viewpoint discrimination

When the government is restricting private speakers, viewpoint discrimination is automatically a violation of the First Amendment because it contradicts everything the First Amendment stands for. As Justice Anthony Kennedy wrote in the 1994 case of Turner Broadcasting System Inc. v. Federal Communications Commission:

“At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. ... Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right.”

Kevin Goldberg is a First Amendment expert for the Freedom Forum. He can be reached at kgoldberg@freedomforum.org.