From Bus Bans on Religious Advertisements to Beyond: Why Religion Is More Appropriately Classified as a Viewpoint Rather Than a Subject Matter

This circuit split created the issue identified herein: Is a ban on religious advertisements—aimed at all religions equally—permissible because it constitutes a restriction of a subject matter, or is it impermissible because it constitutes restriction of a viewpoint? This narrow issue implies the existence of a broader issue: Should religion as a whole be classified as a subject matter or a viewpoint in order to avoid laborious and fact-intensive inquiries into each particular law? This Comment aims to answer this question through the lens of not only legal precedent, but policy perspectives as well. This Comment advances the position that a ban on religious advertisements constitutes unconstitutional viewpoint discrimination using the fact-intensive analysis developed by the Court. Furthermore, this Comment argues that religion should always be classified as a viewpoint—a lens through which to discuss particular subjects—rather than as an entire subject matter, in order to avoid fact-intensive tests and extensive litigation. Part II will provide an overview of First Amendment jurisprudence by discussing the forum analysis and its relevance, defining the types of speech restrictions and rationale thereof, and providing a history of the birth of the viewpoint discrimination principle. Then, Part III will provide an analysis of the legal issue identified herein: Is a ban on religious advertisements on buses a permissible subject matter regulation or an impermissible viewpoint regulation under the First Amendment? Finally, Part IV will conclude that a ban on religious advertisements on buses is an impermissible viewpoint regulation under the First Amendment, and that religion should always be broadly classified as a viewpoint