April 2012, Volume 98, Issue 2|
Content Discrimination Revisited
98 Va. L. Rev. 231 (2012)
A central feature of First Amendment law is the prohibition on content discrimination. It provides that the government generally may not regulate expression on the basis of the message it communicates. It has become commonplace to say that the Supreme Courtís content-discrimination jurisprudence is incoherentóthat it has suffered so many complications, elaborations, and exceptions that it looks deeply inconsistent, if not end-determined. This article argues that this criticism is overblown. The case law is united in an overarching concern with subject-matter and viewpoint discrimination. The Court has consistently treated facial classifications of these kinds as suspect. When it examines laws that do not facially discriminate on these bases, covert subject-matter and viewpoint discrimination are its constant concerns, and it has been unwilling to impute them without particular kinds of strong evidence. One may argue that the Court should be doing something different, or that it should be doing what it does in a different way. But to the extent that a major criticism of the existing approach is its lack of coherence, a reevaluation is in order.
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