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Viewpoint Discrimination

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Viewpoint discrimination is a form of content-based discrimination that is violative of the Free Speech Clause of the First Amendment to the U.S. Constitution. When the government seeks to suppress the ideas or viewpoints of a speaker, it can interrupt the marketplace of ideas and amount to censorship. The U.S. Supreme Court has affirmatively stated that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." When passing state or federal laws, the government should remain viewpoint neutral and not discriminate against speech, even if it is disagreeable, profane, offensive, hateful, or controversial.

Background

When Courts are analyzing a law that is suspected of viewpoint discrimination, strict scrutiny is applied and laws that can survive this form of legal review must be narrowly tailored to serve a compelling government interest, or it can be found unconstitutional. Although there is generally a heavy presumption of unconstitutionality, there are instances where viewpoint discrimination may be permitted and not be invalidated by the First Amendment. The Supreme Court has typically analyzed cases involving the suppression of viewpoints in religion, politics and offensive categories; it has invalidated state and federal laws that seek to censor or exclude the viewpoints of unpopular speakers or offensive ideas. The Court has recognized that this is an important principle in First Amendment jurisprudence and has strengthened this doctrine to protect Free Speech over the last several decades.

The Supreme Court majority opinion by Justice Robert Jackson from the 1943 decision in West Virginia State Board of Education v. Barnette is illustrative of an early decision regarding the First Amendment principle of viewpoint discrimination.

In Barnette, the State Board of Education passed a regulation in early 1942 requiring that all teachers and students in public schools partake in daily salutes to the American flag and punished those who refused. When several students refused to comply with this regulation based upon their religious beliefs, they were expelled from their schools and faced further punishments. The students sued the Board of Education citing violations of the Fourteenth Amendment, which applies the First Amendment to the states. In the majority opinion, Justice Jackson held that this action of punishing students for refusing to salute the flag violated the First Amendment. Jackson further described this action:

"We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

Justice Jackson further held that the expulsion of students for refusing to salute the flag "invades the sphere of intellect and spirit which is the purpose of the First Amendment to our Constitution to reserve from all official control."

Immoral Speech

Even laws passed by Congress can discriminate based upon an unpopular viewpoint and can also violate the First Amendment. In the case of Iancu v. Brunetti, the Court struck down a provision of the Lanham Act that prohibited the registration of any trademarks that "comprises immoral, deceptive, or scandalous matter."

Erik Brunetti created a clothing line with the phrase "FUCT" on the pieces of clothing and sought to obtain a registered trademark for the phrase. Under the Lanham Act, the Patent and Trademark Office reserves the discretion to grant trademarks and provides a procedure for applying for its use in the marketplace or to enforce possible infringements by others. When Brunetti applied for a trademark, his application was denied due to the Patent and Trademark Office's finding that his clothing line application was both profane and contained "decidedly negative sexual connotations." Writing for the majority, Justice Elena Kagan determined that the provision of the Lanham Act banning the "immoral or scandalous" amounted to facial viewpoint discrimination and subsequently violated the First Amendment.

Concurring Opinions

In a concurring opinion, Justice Samuel Alito sharply criticized viewpoint discrimination as a "poison to a free society." Alito further explained that "it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We now reaffirm that principle today."

Chief Justice John Roberts concurred and dissented in part, arguing that while the First Amendment protects Free Speech, it should not also allow the Government to accept profane or offensive speech.

Justice Stephen Breyer concurred and dissented in part and wrote that this part of the Lanham Act would not violate the First Amendment and the government should be able to prohibit vulgar or profane speech in this case.

Justice Sonia Sotomayor concurred in part and wrote that because viewpoint discrimination was found in this case, but the government cannot now refuse to endorse vulgar or profane speech.

Hateful or Offensive Speech

The Supreme Court is also skeptical of state laws that appear to discriminate based on viewpoint, even when there is hateful or offensive speech.

In 1990, the Minnesota Legislature passed the St. Paul Bias-Motivated Crime Ordinance which prohibited in part:

“Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”

Several teenagers were charged with violating this statute after burning a cross on the property of a black family in the early hours of June 21, 1990. The charged teenagers challenged this law as being content-based and unconstitutional under the First Amendment.

In the majority opinion, Justice Antion Scalia wrote that there are certain areas of speech that "can be regulated because of their constitutionally proscribable content, not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content." The majority held that this St. Paul ordinance is unconstitutional because it only prohibits words or conduct that are offensive or profane "on the basis of race, color, creed, religion or gender."

Justice Scalia explained that other forms of speech that were still hateful or violent were permissible when applied to several other categories like "political affiliation, union membership, or homosexuality. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."

Political Speech

State laws also cannot discriminate based on the political viewpoints of the public. The District of Columbia passed a law that threatened the political viewpoints individuals who may have been critical of foreign governments.

The Plaintiffs in this case were three individuals who planned to carry signs in front of the embassies of the governments of the Soviet Union and Nicaragua on public sidewalks within 500 feet. The signs would have displayed political messages such as "Release Sakharov," "Solidarity" before the Soviet embassy and "Stop the Killing" in front of the Nicaraguan embassy. The Plaintiffs believed that D.C. Code § 22-1115 prohibited these actions and sought to challenge the law in court.

The D.C. Code at issue read in part:

"“It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party or organization ... within 500 feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes ... or to congregate within 500 feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of said District.”

Plaintiffs filed suit alleging that this law prohibited them from carrying signs in front of the embassies of foreign governments that were located in Washington, D.C. and splashed with political messages. The Supreme Court determined that this D.C. law was content-based, since compliance with the law "depends entirely upon whether their picket signs are critical of the foreign government or not." Furthermore, "the government has determined that an entire category of speech-signs or displays critical of foreign governments-is not to be permitted." The Court concluded that this section of the law amounted to viewpoint discrimination was thus unconstitutional because it could not pass strict scrutiny.

Religion

A university that operates as an instrumentality of a State cannot impose regulations on student religious organizations simply because their religious message or their differing religious beliefs. University of Virginia student Ronald Rosenberger formed Wide Awake Productions, a student group that published a Christian viewpoint newspaper that discussed various topics including music, racism, pregnancy and prayer, among other topics. Rosenberger's organization was a certified student entity and was eligible for a University-led program that allowed student certified groups to apply for third-party funding for printing costs for their publications. To be eligible for the funding, student groups must have a relation to the promotion of education at the University; the University excluded outside funding for groups that endorsed political or religious activities. When Rosenberger applied for printing costs with the Student Council, his request was denied because the Council determined that Wide Awake Productions was a "religious activity," and was thus not eligible for the funding. Rosenberger appealed the Council's decision, but that appeal was later denied by the Dean of Students.

Wide Awake then filed suit in federal district court alleging that the denial of the printing costs funding was based entirely on their religious viewpoints and violated their rights under the First Amendment and the Equal Protection Clause. Both the District Court and the Court of Appeals for the Fourth Circuit ruled against Wide Awake because of the University's compelling interests to maintain a separation of church and state and not violate the Establishment Clause.

The Supreme Court reversed both lower federal courts and held that the University's denial of Wide Awake's request for outside funding of printing costs amounted to viewpoint discrimination and thus violated the First and Fourteenth Amendments. In the opinion, Justice Anthony Kennedy described the University's actions as viewpoint discrimination because it "selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints." Kennedy further explained that "[v]iewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."

Concurring Opinion

Justice Sandra Day O'Connor and Justice Clarence Thomas wrote separate concurring opinions agreeing with the judgment of the Court. Justice O'Connor wrote that the University's refusal to allow religious groups outside funding for printing costs put forth the perception that religious groups at the University were to be singled out for mistreatment, when it should have been neutral. Justice O'Connor would reject the University's argument that by providing outside funding to religious groups, the University would not be endorsing religion and potentially running afoul of the Establishment Clause. Justice Thomas criticized the reasoning of the dissent and affirmed what he called a foundational principle of the Establishment Clause: "The Clause does not compel the exclusion of religious groups from government benefits programs that are generally available to a broad class of participants."

Dissenting Opinion

Justice David Souter wrote a dissenting opinion that was joined by Justice John Paul Stevens, Justice Ruth Bader Ginsburg and Justice Steven Breyer. The dissenting justices would affirm the judgments of the lower federal courts because by compelling the University to provide outside funding to a religious group, the University is now endorsing religious activities and this runs afoul of the Establishment Clause. The dissent argues that there was no viewpoint discrimination for the University to deny funding to Wide Awake since it applies to all religions at the University, not just Christianity.

Speech by Unpopular Individuals

States cannot place financial burdens on unpopular individuals or convicted criminals' speech or some other expressive activity. In 1982, the New York Legislature passed the "Son of Sam Law," which required a company or agency to submit any contracts with an accused or convicted criminal to the New York State Crime Victims Board who sought to profit from selling their stories of their criminal acts. The law was passed in response to the popularity and notoriety received by serial killer David Berkowitz, also known as the Son of Sam, who murdered several people in New York City between 1976-1977. The State of New York wanted to prevent individuals like Berkowitz from profiting off of the sales of stories of their criminal acts if they were to be published in books or other media outlets. In addition to the contract, the Board also required that any income derived from sales had to be turned over to the Board to be held in an escrow account for at least five years; this allowed the families of victims time to file claims for the rights to the income.

The text of the law stated:

"Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused or convicted of a crime in this state with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused or convicted person's thoughts, feelings, opinions, or emotions regarding such crime, shall submit a copy of such contract to the board and pay over to the board any moneys which would otherwise, by terms of such contract, be owing to the person so accused or convicted or his representatives."

In 1986, Simon & Schuster contracted with former mobster Henry Hill, who worked with writer Nicholas Pileggi to publish the book Wiseguy: Life in a Mafia Family, which contained Hill's autobiography and stories of his crimes and other exploits while a member of New York City organized crime. The book became the inspiration for the movie Goodfellas, which came out in 1990. Upon learning of its publishing in January 1986, the Board demanded a copy of Hill's contract from Simon & Schuster and all of the money received from book sales to be placed in an escrow account per the statute. Simon & Schuster instead filed suit in federal court seeking to bar the enforcement of the statue and further argued that the statute violated the First Amendment. Both the federal district court and Court of Appeals ruled against Simon & Schuster and found that the Son of Sam law was consistent with the First Amendment.

The Supreme Court reversed the lower federal courts and held that the Son of Sam law violated the First Amendment because it "singled out speech on a particular subject for a financial burden that it places on no other speech and no other income." In the majority opinion written by Justice Sandra Day O'Connor, the Court found that the Son of Sam Law was content-based because it was "directed only at works with a specified content." The law discouraged people like Hill to publish works telling their story and imposed financial disincentives simply because of the identity of the speaker and the content of their expression. The majority rejected the State's compelling state interests to compensate victims of crime and to prevent criminals from profiting off of their criminal acts. The law was not tailored narrowly enough to serve the State's interests and was thus found to have violated the First Amendment.

Concurring Opinion

Justice Anthony Kennedy also concurred in the judgment and wrote separately to explain that the type of offensive speech at issue had the protection of the First Amendment and because the New York Statute was content-based, there was no need for the majority to consider the state's compelling interests. Justice Kennedy reasoned that because the law was viewpoint discrimination and was solely directed at a specific category of speech that was protected, the law should be held invalid on that basis alone.