Lesson 45 - Free Speech 6:

Restrictions of Fully Protected Speech, Part II

In the previous message we said that content-based restrictions (on fully protected speech imposed by the government acting as sovereign) are *generally* unconstitutional, and content-neutral restrictions are *generally* constitutional. Actually, it's more precise to say:

- Content-based restrictions are constitutional only if they are

"narrowly tailored" to a

"compelling government interest."

- Content-neutral restrictions are constitutional as long as they are

"narrowly tailored" to a

"substantial government interest," and

"leave open ample alternative channels of communication."

None of these terms is particularly clear and, on top of that, it turns out that "narrowly tailored" means quite different things in the two tests. But, at least today, the Supreme Court seems *extremely* unlikely to uphold content- based restrictions (again, where the government is acting as sovereign and trying to restrict fully protected speech). And, at least today, the Supreme Court seems *quite* unlikely -- but not extremely unlikely -- to strike down content- neutral restrictions.

So rather than bore you with a long and technical discussion of the cases, we'll just leave it at this: Content-based speech restrictions are almost certainly unconstitutional, and content-neutral speech restrictions are quite likely to be constitutional.

authors:

Larry Lessig David Post Eugene Volokh

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