A regulation is content-based if it applies to some speech (not all) depending on its content. – STRICT SCRUTINY
A regulation is content-neutral if it regulates all speech the same, regardless of its content. – INTERMEDIATE SCRUTINY
- Two types of content-based restrictions:
- 1. Subject matter restrictions (i.e. no political advertising on this billboard)
- 2. Viewpoint restrictions (i.e. Republicans may not advertise) – SC has NEVER upheld a viewpoint based restriction
- - Categories of speech that are unprotected or less protected
- - Content-based restrictions within an unprotected category of speech are subject to strict scrutiny unless the basis for the restriction
- consists entirely of the very reason the entire category of speech at issue is proscribable (e.g., prohibitions only on obscenity that is the most offensive in its lewdness, criminalizations only of threats of violence against the President, advertising regulations only of those industries where the risk of fraud is greatest)—see R.A.V. v. City of St. Paul (discuss later).
- Content-based laws which have a permissible content-neutral purpose (e.g., avoid undesirable secondary effects).
- Content-based distinctions by government acting as proprietor, educator, employer, or patron.