Why the Government Usually Can’t Limit the Content of Your Speech

“Above all else, the First Amendment means government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

— U.S. Supreme Court Justice Thurgood Marshall

Justice Thurgood Marshall wrote these words in Chicago Police Department v. Mosley (1972), a case that involved a law that treated different kinds of picketing – a type of free speech – differently, depending on the subject matter. The Chicago ordinance prohibited all picketing within 300 feet of a public school, except for labor picketers. Earl Mosley was picketing about hiring practices that he said represented racial discrimination at a high school. Under the ordinance, picketers protesting racial discrimination were violating the ordinance, but labor picketers were not.

This ordinance, which the U.S. Supreme Court found unconstitutional, is what in First Amendment jargon is called “content-based,” meaning the regulation treated different kinds of speech differently.

In First Amendment law, one of the most important principles is the content discrimination principle. Under this principle, there are content-based laws and content-neutral laws:

• Content-based laws are those that treat different kinds of speech differently, depending on its content or subject matter.
• Content-neutral laws are those that do not target speech based on its subject matter or content, instead applying across the board to all types of speech.

Content-based laws are viewed with more suspicion than content-neutral laws. That’s because the First Amendment says the government should not be engaging in thought control or determining what are acceptable or unacceptable subjects or viewpoints. That is for the people to decide, not the government.

The First Amendment provides the most protection from content-based regulations

Content-based laws are subject to the highest form of judicial review, known as strict scrutiny — a high hurdle to clear. This means that a reviewing court looks with great care, or scrutiny, at whether the law is appropriate or not. To pass the high bar of strict scrutiny:

• The law must further a compelling — or very strong — government interest.
• The law must be very narrowly drawn or tailored.
• The law must be the least restrictive means of accomplishing its goal.

If a court determines that a law is content-based, then that law violates the First Amendment unless the government can show the law meets the strict scrutiny test.

Court cases around content-based restrictions

Consider the U.S. Supreme Court decision of Reed v. Town of Gilbert (2015). The town of Gilbert, Arizona, had passed an ordinance that imposed different requirements for signs. The ordinance placed signs into three categories: (1) ideological signs (broadest category, which includes noncommercial signs that don’t fall into other categories); (2) political signs (designed to influence the outcome of an election); and (3) temporary directional signs (displayed for a short time before, during and after a particular event put on by a nonprofit organization to help the public find that event). It imposed the greatest restrictions on temporary directional signs and the least on ideological signs (the latter could be bigger and could be placed in more locations around the town without time limits) clearly regulating signs based on their content.

The Supreme Court found the ordinance to be content-based: “Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals,” wrote Justice Clarence Thomas in his majority opinion. “That is a paradigmatic example of content-based discrimination.”

Because the Supreme Court found the ordinance to be content-based, the law needed to meet the strict scrutiny test. The town argued that its ordinance furthered the compelling governmental interests of preserving aesthetic appeal and traffic safety. The court found aesthetic appeal was not a compelling governmental interest; as Thomas wrote, temporary directional signs were no greater an eyesore than ideological or political signs. Furthermore, temporary directional signs did not impact traffic safety any more than other types of signs.

Another example of a content-based law arose in Boos v. Barry (1988). The case involved a Washington, D.C., ordinance that prohibited the display of signs critical of foreign nations within 500 feet of that foreign nation’s embassy. A protestor challenged the law, contending that it was an unconstitutional, content-based restriction on speech.

Ultimately, the U.S. Supreme Court agreed that the D.C. ordinance was content-based, because the law had banned speech critical of certain foreign nations but allowed praising or laudatory speech about those nations.

The First Amendment provides some protection from content-neutral regulations

Content-neutral laws are subject to intermediate scrutiny. This means that the government must show:

• The government has an important or substantial interest in the law.
• This interest is unrelated to the content of the speech.
• The restriction limits no more speech than necessary and allows other avenues for the speech to occur.

If a court determines that a law is content-neutral, then that law violates the First Amendment unless the government can show the law meets the intermediate scrutiny test.

Court cases around content-neutral restrictions

Consider the U.S. Supreme Court decision in Ward v. Rock Against Racism (1989). The case concerned a music concert performed at the Naumburg Acoustic Bandshell in New York City’s Central Park. After repeated complaints of excessive noise from the concert by nearby residents and other users of the park, the city had adopted a regulation that required performers at concerts to use sound amplification equipment and a sound technician provided by the city.

Rock Against Racism, the sponsor of rock music concerts, challenged the noise-control regulations as a violation of the First Amendment. It claimed that the measure was content-based, arguing the law targeted its rock music.

The Supreme Court disagreed and found that the law was content-neutral because the city’s justifications were not related to the content of the music. The principal justification — or important government interest — was noise control, and this applied to any type of music, regardless of content. The city’s other justification was ensuring sound quality, and this also applied regardless of the content of the music. Thus, the court upheld the New York regulation as a constitutional, content-neutral way of addressing a problem with excessive noise.

Sometimes, it is difficult to tell whether a law is content-based or content-neutral. For example, the 2000 Supreme Court case Hill v. Colorado concerned a floating buffer zone outside of abortion clinics. The measure prohibited anyone from coming within eight feet of people entering or leaving abortion clinics to pass “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person.”

Counselors passing out materials about abortion alternatives challenged the measure, but the Supreme Court ruled 6-3 that the floating buffer zone was content-neutral. In his majority opinion, Justice John Paul Stevens called the law a “regulation of the places where some speech may occur,” not a regulation of speech. He also reasoned that the buffer zone applied to all protestors “regardless of viewpoint, and the statutory language makes no reference to the content of the speech.”

RELATED READING: What Are Time, Place and Manner Restrictions?

However, three justices dissented. Justice Antonin Scalia wrote that the Colorado legislature, in passing the abortion buffer zone law, was targeting the expressive activities of anti-abortion protestors.

The decision in Hill v. Colorado remains controversial in some First Amendment circles. As of February 2025, the Supreme Court declined to review two cases —  Turco v. City of Englewood, New Jersey and Coalition Life v. City of Carbondale, Illinois — that had asked the court to overrule Hill v. Colorado.

As this case shows, determining whether a law is content-based or content-neutral isn’t always simple. But this legal principle can often determine whether a law violates the First Amendment or not. There are only a handful of cases where the Supreme Court has allowed a content-based law to stay on the books, but content-neutral laws fare much better when facing legal challenges. And for good reason: This protects against the government passing laws aimed at controlling the messages people are trying to convey while still allowing laws that broadly apply to how those messages are delivered, regardless of what they are.

David L. Hudson Jr. is a First Amendment fellow with Freedom Forum and an associate professor of law at Belmont University.