Good Enough for Government Work: Two Cheers for Content Neutrality

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” The phrase is an artifact of modern constitutional doctrine–a doctrine subjected to a sustained barrage of judicial and academic criticism. Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses of content neutrality, this Article seeks illumination by shifting to a more grounded focus. I compare the 713 reported cases in which the lower federal courts deployed the doctrine between September 2009 and August 2013 with the First Amendment cases decided by the Roberts Court. I analyze what political science and behavioral decision theory tell us about the way that the content neutrality doctrine is likely to function in setting the terms of interaction between the private actors and government officials who actually populate and seek guidance from the case law. Unlike the recent Supreme Court docket, contemporary content neutrality cases in the lower courts center on contests between potential “village tyrants”--local officials and street level bureaucrats who will often find it difficult to hold fast to tolerant ideals--- and local dissenters who are likely to provoke them. In these struggles, there are important reasons to prefer a strong doctrine of content neutrality to its proposed doctrinal competitors. Content neutrality is important not as a first best rule to assure that the Supreme Court properly implements a theory of the First Amendment, but as a usable norm for the government actors who make decisions before court proceedings commence and for the polity to which those actors answer. Content neutrality frames the terms of engagement between the governed and the governors of the United States in ways that incline the general spirit of the people and of the government to the protection of rights of free expression. Its flamboyant protection of speech repugnant to a variety of constituencies means that the lived reality of free expression will mobilize support from an array of political factions. Content neutrality is, as the Court maintained in laying the doctrine’s foundations, an important practical element of constitutional architecture that preserves a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.