Also known as: viewpoint-based restrictions · viewpoint based restriction · viewpoint-based restriction · viewpoint discrimination · viewpoint-based regulation
Written by attorneys — see sources below.
A content-based regulation of speech that singles out expression for disfavor because of the speaker's perspective or ideology. Such restrictions trigger strict scrutiny and are presumptively invalid under the First Amendment even when they operate within categories of otherwise unprotected speech.
Vera Vu applied to register a mark containing an ethnic slur used ironically to protest discrimination. The Patent and Trademark Office denied registration after a nonprofit complained the mark demeaned a national origin group. Vera sued, arguing the denial suppressed her private expression solely because officials disapproved of the message.
Veronica Villanueva was charged under a city code that criminalized only those abusive epithets targeting race, religion, or nationality while leaving equally hostile insults on politics untouched. She moved to dismiss, contending the selective prohibition discriminated within the fighting-words category on the basis of viewpoint.
In the predawn hours of June 21, 1990, petitioner R.A.V., then a juvenile, and several other teenagers assembled a crudely made cross by taping together broken chair legs and burned the cross inside the fenced yard of a black family that lived across the street from the house where R.A.V. was staying. Although this conduct could have been punished under several Minnesota statutes carrying significant penalties, the City of St. Paul chose to charge R.A.V. under the St. Paul Bias-Motivated Crime Ordinance. The ordinance provides that 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. R.A.V. moved to dismiss the charge on the ground that the ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment, and the trial court granted the motion. The Minnesota Supreme Court reversed, construing the ordinance to reach only fighting words and concluding that it was not impermissibly content-based. This Court granted certiorari.
View caseVanessa Vega sought permission to display a religious cross on a public square already open to other private monuments. Officials denied the request because the display conveyed a religious viewpoint while permitting secular symbols on the same property.
Capitol Square is a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio. For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Ohio Admin. Code Ann. § 128-4-02(A) (1994) makes the square available for use by the public for free discussion of public questions or for activities of a broad public purpose, and Ohio Rev. Code Ann. § 105.41 (1994) gives the Capitol Square Review and Advisory Board responsibility for regulating public access. To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and noninterference with other uses of the square, and which are neutral as to the speech content of the proposed event. In November 1993, after authorizing a state Christmas tree and granting a rabbi's application for a menorah, the Board received an application from respondent Donnie Carr of the Ohio Ku Klux Klan to place a cross on the square from December 8 to December 24, 1993. The Board denied that application on December 3, informing the Klan by letter that the decision to deny was made upon the advice of counsel in a good faith attempt to comply with the Ohio and United States Constitutions. Two weeks later, the Ohio Klan, through its leader Vincent Pinette, filed suit in the United States District Court for the Southern District of Ohio seeking an injunction requiring the Board to issue the requested permit. The District Court determined that Capitol Square was a traditional public forum open to all without any policy against freestanding displays, that the Klan's cross was entirely private expression entitled to full First Amendment protection, and that the Board had failed to show that the display of the cross could reasonably be construed as endorsement of Christianity by the State. The District Court issued the injunction, after which the Board permitted the Klan to erect its cross, and later entered summary judgment in the Klan's favor. On appeal by the Board, the United States Court of Appeals for the Sixth Circuit affirmed the District Court's judgment. The Supreme Court granted certiorari to consider whether the State’s denial of the Klan’s application to display its cross on Capitol Square was a denial of equal access in violation of the First Amendment and whether the State’s asserted justification for the denial—that it had a compelling interest in avoiding an appearance of endorsement of religion under the Establishment Clause—could be sustained.
View caseVictoria Vernon, a high-school journalism student, submitted an article critical of school administration policies for the student newspaper. The principal ordered removal of the piece solely because he disagreed with the perspective expressed in the reporting.
The Hazelwood School District operated Hazelwood East High School in St. Louis County, Missouri. During the 1982-1983 school year, students enrolled in the Journalism II class wrote, edited, and published the school newspaper Spectrum approximately every three weeks. More than 4,500 copies were distributed to students, school personnel, and community members each year. The Board of Education provided funding for printing, supplemented by newspaper sales. The journalism teacher selected editors, assigned stories, reviewed content, and determined grades for the course that awarded academic credit to students. On May 10, 1983, the journalism teacher submitted page proofs for the May 13 issue to Principal Robert Reynolds. The proofs included an article describing three students' experiences with pregnancy that discussed sexual activity and birth control. Another article on the impact of divorce quoted a student by name regarding her father's behavior. Reynolds objected to the pregnancy article because it might be inappropriate for younger students and could identify the students despite the use of false names. He also objected to the divorce article because the named student's parents had not been given an opportunity to respond to the comments. Reynolds ordered the deletion of the two pages containing these articles, resulting in the publication of a four-page newspaper rather than the planned six-page edition. The deleted material occupied approximately one full page. Three former student staff members of Spectrum then brought suit against the school district and officials in the United States District Court for the Eastern District of Missouri. After a bench trial, the District Court denied injunctive relief and monetary damages. The Court of Appeals for the Eighth Circuit reversed that decision. The Supreme Court granted certiorari to review the case.
View caseVance Vogel operated an adult bookstore whose location complied with distance requirements. City officials imposed an additional restriction targeting only establishments conveying sexually explicit viewpoints while allowing comparable non-explicit retail uses in the same zone.
In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments. The study concluded that concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surrounding communities. Accordingly, the city enacted an ordinance prohibiting the establishment, substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or massage parlor within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park. There is evidence that the intent of the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings. The intent was also to disperse distinct adult businesses operated under common ownership and housed in a single structure. The ordinance the city enacted directed that the distance between any two adult entertainment businesses shall be measured in a straight line from the closest exterior structural wall of each business. Subsequent to enactment, the city realized that this method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure. Concerned that allowing an adult-oriented department store to replace a strip of adult establishments could defeat the goal of the original ordinance, the city council amended the code by adding a prohibition on the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof. The amended ordinance defines an adult entertainment business to include an adult arcade, bookstore, cabaret, motel, theater, or massage parlor. It notes that each of these enterprises shall constitute a separate adult entertainment business even if operated in conjunction with another at the same establishment. Respondents Alameda Books, Inc., and Highland Books, Inc., are two adult establishments operating in Los Angeles. Each occupies less than 3,000 square feet and is located more than 1,000 feet from other adult establishments and 500 feet from sensitive uses. Both respondents rent and sell sexually oriented products, including videocassettes. Both provide booths where patrons can view videocassettes for a fee. Retail sales and video booths are located in the same commercial space with only one entrance to each establishment. After a city building inspector found in 1995 that Alameda Books was operating both as an adult bookstore and an adult arcade in violation of the zoning regulations, respondents sued under 42 U.S.C. § 1983 for declaratory and injunctive relief. The District Court initially denied both motions on the First Amendment issues in count I. After respondents filed a motion for reconsideration, the District Court found that Los Angeles' prohibition on multiple-use adult establishments was not a content-neutral regulation of speech and granted summary judgment to respondents. The Court of Appeals for the Ninth Circuit affirmed on different grounds. The Supreme Court granted certiorari to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton.
View caseVeronica Varela sought registration of a mark using a term derogatory toward a professional group to protest industry practices. The examiner refused registration because the mark expressed disapproval of that group, prompting a constitutional challenge to the denial.
Simon Tam serves as the lead singer of the rock group The Slants, whose members are Asian-Americans. He chose the name in an effort to reclaim the term and drain its denigrating force as a derogatory reference to Asian persons. The group has incorporated childhood slurs into its lyrics and titled albums including The Yellow Album and Slanted Eyes, Slanted Hearts. Tam filed an application with the Patent and Trademark Office seeking registration of THE SLANTS as a trademark. The PTO examining attorney rejected the application after applying a two-part analysis and concluding that a substantial composite of persons of Asian descent would find the mark offensive. The attorney cited dictionary definitions labeling the term as derogatory and evidence that the band's name had prompted cancellation of a performance along with negative comments from online readers. Tam appealed the denial first to the examining attorney and then to the Trademark Trial and Appeal Board, which upheld the refusal. Tam then brought the case before the Federal Circuit. Sitting en banc, that court reversed the Board. The Government petitioned for certiorari, and the Supreme Court granted review.
View caseViewpoint discrimination targets the speaker's perspective or ideology within a subject, while subject-matter rules address an entire topic regardless of the speaker's stance. Viewpoint rules are especially suspect and receive strict scrutiny even inside unprotected categories such as fighting words.
No. Even within fighting words, the government may not criminalize only those insults that convey disfavored viewpoints on race, religion, or nationality while leaving other abusive speech untouched. Such selective prohibitions constitute unconstitutional viewpoint discrimination.
Trademarks constitute private speech. The government therefore may not deny registration solely because it disapproves of the applicant's viewpoint, as doing so imposes an unconstitutional viewpoint-based restriction that fails strict scrutiny.
Viewpoint-based restrictions trigger strict scrutiny. The government must prove a compelling interest and narrow tailoring. Disapproval of the speaker's message alone never satisfies this standard.
…of N. Y. v. Public Serv. Comm'n of N. Y. , 447 U. S. 530, 546-547 (1980) (Stevens, J., concurring in judgment), in general, viewpoint-based restrictions on expression require greater scrutiny than subject-matter-based restrictions. Finally, in considering the validity of content-based regulations we have also looked more broadly at the…