Tuesday, February 19, 2008
Marvin Ammori, University of Nebraska College of Law, has published "Content-Based Laws Are Unproblematic?: The Case For Content-Based Promotion of Democratic Speech." Here is the abstract.
Everyone seems to think the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite the distinction's wide acceptance, the distinction lacks any precedential or normative basis - unless it also accounts for an equally important distinction. Content-based laws that suppress specific content are problematic - like banning a television show. But content-based laws that promote certain kinds of content, such as promoting educational and political shows, should not be problematic. The problem is that courts ignore this distinction in cases involving the most important speech media - such as cable television and perhaps internet communication.
In almost every other area of First Amendment doctrine, courts apply minimal scrutiny to content-based promotion, even though the courts think they are adopting exceptions to content-analysis. The exceptions actually add up to a rule, and this rule makes sense. The First Amendment should permit government to promote speech in a content-based way, especially to promote educational and political speech. The current exception applies most notably to dominant electronic media, but that exception should be corrected.
Download the paper from SSRN here.