The malleable viewpoint/content distinction and its consequences for free expression Public Deposited

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  • The malleable viewpoint content distinction and its consequences for free expression
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  • March 21, 2019
  • Kozlowski, Dan V.
    • Affiliation: Hussman School of Journalism and Media
  • The U.S. Supreme Court has recognized three categories of regulations on expression: content neutral, content based, and viewpoint based. Whether a regulation will be upheld depends in large measure on the Court's determination of the category to which it belongs. The Court has devised tests to review content-neutral and content-based regulations, but it has said that viewpoint-based regulations are unconstitutional. The categorical approach thus seems to depend on a clear demarcation between the content and viewpoint concepts. This dissertation explores how the Court has distinguished between content and viewpoint discrimination and concludes that the distinction, despite its importance, remains unclear. The Court has failed to adequately define the terms and the criteria to be used in determining whether content or viewpoint discrimination is present. In identifying content discrimination involving private speech and speech in public forums, the dissertation shows that the Court has waffled among three approaches, variably relying on the face of the regulation, the purpose of the regulation, and the effect of the regulation. The Court has further clouded its jurisprudence when reviewing restrictions on private speech and speech in public forums by conflating the content and viewpoint terms. In limited public forum, nonpublic forum, and subsidy cases, the Court has ruled that content discrimination is permissible. Viewpoint discrimination, however, remains unconstitutional. In spite of the Court's stated prohibition of viewpoint discrimination, the dissertation shows that the Court has applied the concept differently depending on the speech context. In addition, this dissertation examines whether the Court's lack of definitions and inconsistent applications permit ideological manipulation of the concepts. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the dissertation studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. With a few notable exceptions, the lineups of justices in the cases largely mirror the justices' ideological voting behaviors. The dissertation concludes by proposing a new method of analysis for courts to follow that has clearer guidelines and leaves less room for ideological biases to influence case outcome.
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  • In Copyright
  • Walden, Ruth C.
Degree granting institution
  • University of North Carolina at Chapel Hill
  • Open access

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