Fundamental Free Speech Principle: No Viewpoint Discrimination

This column expresses the views of David L. Hudson Jr., First Amendment Fellow of the Freedom Forum.

First Amendment free-speech law has many important principles, rules, doctrines and exceptions. It has been called labyrinthine, complex, convoluted and confusing. But one rule stands supreme above all others in the world of free speech. That rule is that the government generally may not engage in viewpoint discrimination by favoring one set of private speakers over another.

As I explain in my treatise, “The First Amendment: Freedom of Speech,” “[t]he danger is that the government may distort the marketplace by favoring certain ideas over others.” The First Amendment generally means that the people, not the government, should determine what ideas have merit and which do not.

Viewpoint discrimination is a subset of what is called content discrimination. When the government discriminates on the basis of content, it generally is prohibiting speech on a certain subject matter. Stated another way, content-based laws are considered worse than content-neutral laws, because content-based laws represent an attempt at the government censoring certain subject matter.

But viewpoint discrimination is even worse than content discrimination, as it involves the suppression of particular ideas rather than a broad subject matter. There are several famous examples of the Supreme Court objecting to such discrimination. One in particular comes from the court’s landmark student-speech case, Tinker v. Des Moines Independent Community School District (1969). In this case, public school officials banned black armbands but allowed students to wear other symbols, such as Iron Crosses and political campaign buttons. The court warned that this was the singling out of a specific (anti-war) viewpoint.

Through the years, various jurists, including several U.S. Supreme Court justices, have waxed eloquently on the dangers of viewpoint discrimination. Below are several of the most memorable passages warning about this phenomenon.

‘Viewpoint discrimination is thus an egregious form of content discrimination.’

Justice Anthony Kennedy wrote these oft-quoted words in Rosenberger v. University of Virginia (1995), a case involving the university’s denial of funding to a student publication associated with an explicitly Christian viewpoint. The students asserted that the university’s denial of funding for its publication, Wide Awake, amounted to discrimination on its religious viewpoint.

The university argued it was trying to avoid a potential Establishment Clause problem, as some observers might view the university’s funding of the student publication as governmental endorsement of religion. But five members of the Supreme Court viewed it as a case of viewpoint discrimination — in this case, against a religious viewpoint.

‘Viewpoint discrimination is poison to a free society.’

Justice Samuel Alito wrote this powerful warning against viewpoint discrimination in his concurring opinion in Iancu v. Brunetti (2019), in which the Supreme Court invalidated a provision of federal trademark law banning “immoral” or “scandalous” marks.

Entrepreneur Erik Brunetti founded a clothing line with the trademark FUCT, which stood for Friends U Can’t Trust. He sought to register the trademark, as official registration brings important benefits to trademark owners. However, the U.S. Patent and Trademark Office determined the proposed mark was “vulgar” and had “decidedly negative sexual connotations.”

Justice Elena Kagan, in her majority opinion, determined the law was viewpoint discriminatory. She did this in part by showing various trademarks that were accepted and denied. It appeared that federal trademark officials were inconsistent in their decisions.

Alito wrote separately to warn that freedom of speech is under attack in the United States and that the court must remain committed to the principle that viewpoint discrimination must not be tolerated.

‘Viewpoint discrimination is anathema to free expression and is impermissible in both public and nonpublic fora.’

Judge D. Brook Smith wrote this passage in Pittsburgh League of Young Voters Education Fund v. Port Authority of Allegheny County (U.S Court of Appeals for the Third Circuit, 2011). The case concerned an advocacy group’s attempt to place an ad on public transit buses indicating to former prisoners that they were eligible to vote upon release from prison. However, the transit authority denied the ads, citing a purported policy of denying noncommercial ads.

However, Judge Smith explained that the Port Authority had accepted noncommercial ads from Just Harvest, the Fair Housing Partnership and the Women’s Law Project. “The suspicion of viewpoint discrimination is fortified by the high degree of similarity between the coalition’s ad and the comparator ads,” he explained.

Judge Smith concluded that the Port Authority’s reasoning was untenable and that the governmental agency had engaged in viewpoint discrimination.

David Hudson Jr. is a Freedom Forum Fellow for the First Amendment and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment”(Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded”(ABC-CLIO, 2017).

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