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Hastings Constitutional Law Quarterly

Article Title

Viewpoint Discrimination

Authors

Marjorie Heins

Abstract

Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.

Specifically, this Article examines the viewpoint neutrality principle in the context of vulgarity and obscenity law, citizens' access to public fora and benefits, various types of "government speech," and the paradoxical world of public education, where the government's interest in "inculcating civic values" often collides with the vision of a free marketplace of ideas. This Article points out inconsistencies in the Supreme Court's oftentimes confusing approach to the related concepts of content and viewpoint. Finally, it concludes that government action disfavoring expression because it is political, controversial, or offensive must be understood as viewpoint-based. This includes sex-related speech and vulgar words, whose frequent relegation to second-class constitutional status is fundamentally premised on moral disapproval of the ideas expressed.

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