Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias

In the hierarchy of constitutional offenses to free speech principles, content discrimination is near the very top. Since the early 1970s, the Court has identified laws that regulate speech on the basis of its content as presumptively unconstitutional. Content discrimination is considered an indication that the government is tipping the scales in public debate, the central ill against which the Free Speech Clause protects. Unless there is a narrow exception in play, content-based laws are subject to strict scrutiny, upheld only if the government can show that the regulation is narrowly tailored to satisfy a compelling interest. Only a handful of laws have satisfied such an exacting test. The commitment to content neutrality has become so central to free speech doctrine that the Court has brought it to bear to strike down laws that are far afield from those that appear to pose a risk that “official suppression of ideas is afoot.” But at the apex of free speech affronts is not content discrimination but viewpoint discrimination. While content-based laws make regulatory choices on the basis of the topic or subject matter of the speech in question (e.g., “no speech about abortion in public parks”), viewpoint-based laws make regulatory choices on the basis of the point of view of the speaker within a content category of speech (“no anti-choice speech in public parks”). The constitutional harm of content bias is setting aside categories of speech for greater or lesser protection based on its subject matter; the constitutional harm of viewpoint bias is setting aside speech within categories for greater or lesser protection based on its political, cultural, social, or economic point of view. Content bias skews debate by limiting categories of speech; viewpoint bias skews debate by limiting points of view within categories