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.
Leslie Kendrick
A Test for Criminally Instructional Speech
This Note introduces the category of criminally instructional speech and proposes a test for such speech under the First Amendment. Criminally instructional speech is expression that provides information helpful in the commission of a crime. Some such speech already qualifies as aiding and abetting and is thus punishable under the criminal law. In constructing a test for the whole category of criminally instructional speech, the aiding and abetting paradigm provides a better model than those available in First Amendment law. The current case law, however, tends to ignore the aiding and abetting doctrine in favor of an incitement test. An analysis of this case law exposes the weaknesses of such an approach and the preferability of a test based on aiding and abetting.
Content Neutrality and Compelling Interests: The October 2010 Term
Two First Amendment cases from last Term addressed when content regulation is justified by particularly compelling interests. The answer implied by both cases is: not often.