102 Iowa L. Rev. 1427 (2017)

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Abstract

Since at least 1972, the central tenet of free speech doctrine has been that if a law regulates speech based on its content, and the speech is not unprotected or “low value,” then the law is subject to strict scrutiny and presumptively unconstitutional. Few commentators have seriously questioned this rule, on the assumption that any deviation from it threatens to unleash censorship, and is in any event unnecessary. This Article questions that consensus, and identifies specific circumstances in which, it argues, the government should be permitted to discriminate based on content.

The Article begins by identifying a variety of situations in which courts have regularly evaded the general presumption against content regulation, even though the speech at issue was in principle fully protected. The core insight of this Article is that these evasions make sense. The corollary of the rule against content discrimination is a presumption that all (fully protected) speech should be treated as equally valuable. But this presumption itself conflicts with the Supreme Court’s repeated assertions that the First Amendment values certain speech – speech relevant to democratic self-governance – above all other forms of speech. So, all speech is not equal. Moreover, there are specific circumstances in which it is profoundly irrational to treat all speech as equally valuable. The core example is physical scarcity of speech opportunities. Here, some speech must be allowed, at the expense of other speech. Why not, then, favor more over less valuable speech? Yet current doctrine forbids this choice. The Article goes on to identify other specific, objectively definable situations where the presumption against content regulation should be reconsidered. It concludes by exploring, and rejecting counterarguments.