Joel Dillard & Associates

This is the second in a series of posts inspired by the free speech case of Gunter v. Jackson Public Schools.

The most fundamental rule of the First Amendment and freedom of speech is that the government cannot censor or punish speech because it disagrees with what was said.

One of the best examples of this is probablySchacht v. United States, 398 U. S. 58 (1970), where the Court struck down a law permitting actors to wear a military uniform while acting in a movie only if the portrayal does not tend to discredit that armed force. The Court noted that although the government could probably make a rule banning actors from wearing the uniform in any movie, it certainly could not single out and ban the speech which made the government look bad.

As the Supreme Court put it in another case:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . Discrimination against speech because of its message is presumed to be unconstitutional. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

In that case, a University refused to fund religious student magazines, while funding secular student magazines. This was unconstitutional. Although the government did not have to fund any student magazines, once it decided to fund some of them it could not discriminate based on the viewpoint taken in the magazines. Read more: Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-89 (1995).

The best overall discussion of this concept is probably found in RAV v. St. Paul, 505 U.S. 377, 381-86 (1992).

The bottom line: the government cannot make rules punishing people for saying something the government does not agree with. I think that a rule banning, for example, negative commentary to the media is very likely to be unconstitutional.

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