Content-Neutral and Content-Based Regulations of Speech: A Distinction That is No Longer Worth the Fuss

Abstract

The popular binary distinction between content-based and content-neutral regulations of speech is widely assumed to be reasonably clear. The respective constitutional tests of content-based and content-neutral regulations of speech are also assumed to be hierarchical in their degrees of stringency. Thus constitutional tests of content-based regulations of speech are assumed to be more stringent, rigorous, demanding, or “strict” than tests of content-neutral regulations of speech. This Article, however, rejects both of these important and popular assumptions. Most crucially, the typical requirement that there remain ample alternative speech channels in the case of content-neutral, but not content-based, restrictions of speech decisively upsets any hierarchy of stringency as between the two tests. The effects of the alternative speech channels requirement, along with several other phenomena, undermine the meaningfulness of the distinction between content-based and content-neutral regulations of speech.