Legal Definitions - content-based discrimination

Content-based discrimination occurs when the government treats speech differently based on the message or topic it communicates. Such laws or regulations are generally presumed unconstitutional under the First Amendment and face a high bar to justify their existence.

Content-Based Discrimination

Content-based discrimination occurs when a government regulation or law treats different types of speech differently based on the specific message, topic, or subject matter being communicated. This means the government is regulating what is being said, rather than how or where it is being said.

In the United States, laws that discriminate based on content are generally presumed to be unconstitutional under the First Amendment, which protects freedom of speech. Courts apply a very strict standard of review to such laws, requiring the government to show that the regulation serves a compelling government interest and is narrowly tailored to achieve that interest.

Here are some examples:

• Imagine a city ordinance that prohibits all political posters criticizing current city council members from being displayed in public parks, but allows posters supporting them or discussing other non-political topics. This is an example of content-based discrimination because the city is regulating speech based on its specific political message. The restriction targets the critical content, rather than regulating all political speech or all posters regardless of their message.

• Consider a state law that bans all advertisements for tobacco products on billboards, but permits advertisements for alcohol, food, or other consumer goods on the same billboards. This regulation is content-based because it singles out a particular type of commercial message (tobacco ads) for prohibition, while allowing other commercial messages. The restriction is based on the subject matter of the advertisement.

• Suppose a public university establishes a policy for student organizations wishing to use campus facilities for events. The policy states that groups advocating for specific religious viewpoints are required to pay a higher facility fee than groups discussing secular academic topics or general student life. This would be content-based discrimination because the university is imposing different burdens (higher fees) on speech based on its religious content, treating it differently from speech with secular content.