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Lesson 44 - Free Speech 5:

Government as Sovereign and
Fully Protected Speech, Part I

If speech is fully protected, and the government is acting as sovereign, then the main remaining question is whether the government is regulating speech *because of its content*.

If the restriction is content-based then it's almost certainly unconstitutional. For instance,

And this is true regardless of whether the restriction is enforced through *criminal punishment* or through *civil liability*. A law that lets people sue for emotional harm inflicted by bigoted Web sites would be as unconstitutional as a law imposing criminal punishment on people who put up such sites.

If the restriction is content-neutral -- for instance, a tax of 1/100 of a cent per 1000 bytes of e- mail sent, or a ban on any person sending more than 100 unsolicited e-mail messages a day -- it's probably constitutional, even though it does in some way restrict speech.

Common MYTH: "Content-based speech restrictions are OK if they only restrict the time, place, or manner of speech." No; if a restriction is content-based, it's presumptively unconstitutional, even if it lets you express your views some other way or in some other place or at some other time. Thus, a law banning profanity on all newsgroups is unconstitutional even though it only restricts the "manner" and "place" of expression and doesn't itself ban any ideas.

authors:
Larry LessigDavid PostEugene Volokh



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