Free Speech
Some distinctions to keep in mind
With various recent developments, there is a lot of attention these days to free speech issues. To get clear on them, it is essential to distinguish among three kinds of restrictions on speech: viewpoint-based, content-based, and content-neutral. (More than anyone, Geoffrey Stone of the University of Chicago is responsible for clear thinking about these distinctions.)
A viewpoint-based restriction is one that punishes people because of the point of view that they embrace.
For example, such a restriction might say that while people may praise the president of the United States, they may not criticize the president of the United States. Or it may say that students may not make disrespectful statements about their teachers, with an understanding that respectful statements are permitted (and quite welcome). Or it may say that people cannot say negative things about a country in the Middle East, but that people can say nice things about that country.
A content-based but viewpoint-neutral restriction is one that punishes people because of the content of their speech. All viewpoint-based restrictions are content-based, but some content-based restrictions are viewpoint-neutral. For example, a university might say that students cannot discuss an ongoing war, whatever they propose to say about it. Or a university might say that students cannot discuss religion over dinner.
A content-neutral restriction applies regardless of what is being said. A time, place, and manner restriction would count as content-neutral. For example, such a restriction might say that between the hours of nine p.m. and six a.m., no speech of any kind will be allowed in public parks.
In general, viewpoint-based restrictions face a strong presumption of invalidity. They are almost always invalid. New York cannot ban speech that says nasty things about the governor while allowing speech that says nice things about the governor. Alabama cannot ban speech that favors critical race theory while allowing speech that criticizes critical race theory.
To be sure, we might be able to imagine cases in which a viewpoint-based restriction is acceptable – say, in the context of a serious, imminent threat to public safety or national security, in which certain kinds of speech might be banned because of their viewpoint.
Someone might be prevented from saying, “kill that man,” when there is an imminent threat of violence, even if they are not prevented from saying, “do not kill that man.” Someone might be forbidden from saying, “let’s fix prices,” even if they are not forbidden from saying, “let’s not fix prices.” But in general, viewpoint-based restrictions are impermissible.
