Content Discrimination Revisited

Article — Volume 98, Issue 2

98 Va. L. Rev. 231
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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 Court’s content-discrimination jurisprudence is incoherent—that 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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  Volume 98 / Issue 2  

Content Discrimination Revisited

By Leslie Kendrick
98 Va. L. Rev. 231

Applying Constitutional Decision Rules Versus Invalidating Statutes In Toto: An Alternative To Rosenkranz’s Approach To Facial, As-Applied, And Overbreadth Adjudication

By Scott A. Keller & Misha Tseytlin
98 Va. L. Rev. 301

Law and Grace

By William J. Stuntz
98 Va. L. Rev. 367

Restoring the Original Meaning of the Speech or Debate Clause

By Wells Harrell
98 Va. L. Rev. 385