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Author Topic: Content Based v. Viewpoint Based  (Read 7722 times)

LULAW1982

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Content Based v. Viewpoint Based
« on: April 16, 2008, 06:10:14 PM »
What is the difference b/n a content-based law and a law that discriminates on the speaker's viewpoint?

They seem almost the same to me.   

Jumboshrimps

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Re: Content Based v. Viewpoint Based
« Reply #1 on: April 16, 2008, 06:13:39 PM »
I feel that I am on stable legal ground when I ask, what the hell are you talking about?

jacy85

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Re: Content Based v. Viewpoint Based
« Reply #2 on: April 16, 2008, 08:08:22 PM »
Best way to demonstrate the difference is with an example.

If I tell you that you can't talk about drug use at all, that's a content-based restriction.

But if I tell you that you can't talk about how drug use is GOOD, that's a viewpoint restriction.

Essentially, the content is the subject matter, the viewpoint is the position the speaker takes on the subject matter.

In practice, however, the line is definitely blurred, and even though viewpoint restrictions are categorically unconstitutional, I think courts allow a lot through and call it "content restrictions."

(this is at least how I understand it, and I'm by no means a con law specialist!)

Dr. Balsenschaft

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Re: Content Based v. Viewpoint Based
« Reply #3 on: April 16, 2008, 08:18:38 PM »
Actually, that's not quite right. 

When looking at laws that restrict speech, these laws can be either content-based or content-neutral.

Content-based laws reference speech by their content. 

Content-based laws can be either a subject matter restriction (Jacy's first example) or a viewpoint restriction (Jacy's second example).

From a practical standpoint, it doesn't really matter whether a law is a subject matter restriction or a viewpoint restriction because both are content-based.  However, on a law school exam it helps to know the difference.

LawstCause

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Re: Content Based v. Viewpoint Based
« Reply #4 on: April 17, 2008, 09:49:04 AM »
It does matter. 
Content based discrimination is allowed under specific circumstances, wheras, viewpoint discrimination is never allowed.  Such as the transit authority can prohibit all ads for political parties, as long as the forum has never been open to political speech, but once open it cannot thereafter prohibit any politician from advertising based upon there political affiliation.  Of course there are exceptions to this as well, but in general this is the rule.

Dr. Balsenschaft

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Re: Content Based v. Viewpoint Based
« Reply #5 on: April 17, 2008, 10:56:41 AM »
It does matter. 
Content based discrimination is allowed under specific circumstances, wheras, viewpoint discrimination is never allowed.  Such as the transit authority can prohibit all ads for political parties, as long as the forum has never been open to political speech, but once open it cannot thereafter prohibit any politician from advertising based upon there political affiliation.  Of course there are exceptions to this as well, but in general this is the rule.

I guess I wasn't clear, but I don't agree with you either.  From a practical standpoint, the viewpoint/subject-matter based distinction really doesn't matter because both types of restrictions on speech are content-based.  However, the distinction does matter from an analytical standpoint (which is why it helps to know the difference on a law school exam.)  Both subject matter and viewpoint restrictions are "usually" analyzed under strict scrutiny because they are both content-based.  Of course, if you look at the public forum doctrine, which you are talking about above, or any other doctrine that takes the analysis one step further, such as the secondary effects doctrine, then the rules become a lot less clear.  For instance, erotic dancing restrictions are viewpoint-based.  They reference speech by its conduct (nude dancing) and its viewpoint (eroticism).  Yet, under the secondary effects doctrine, these restrictions are analyzed under intermediate scrutiny because the Court treats these restrictions as if they are "content-neutral" because they are aimed at the negative secondary effects of speech.

jacy85

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Re: Content Based v. Viewpoint Based
« Reply #6 on: April 17, 2008, 04:35:38 PM »
Actually, that's not quite right. 

When looking at laws that restrict speech, these laws can be either content-based or content-neutral.

Content-based laws reference speech by their content. 

Content-based laws can be either a subject matter restriction (Jacy's first example) or a viewpoint restriction (Jacy's second example).

From a practical standpoint, it doesn't really matter whether a law is a subject matter restriction or a viewpoint restriction because both are content-based.  However, on a law school exam it helps to know the difference.

That's interesting.  I've never taken a 1st Amdt class, but whenever its come up we've discussed it in the much narrower context of subject matter (which I've always heard referenced as "content") and viewpoint. But the bigger picture actually clarifies things a bit.

Thanks for correcting!