THE FIRST AMENDMENT AND CONTENT DISCRIMINATION

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1 THE FIRST AMENDMENT AND CONTENT DISCRIMINATION Paul B. Stephan III* As an admirer, friend, and former employee of Justice Powell, I can bring more sincerity than elegance to my expression of tribute to him. For me, as for all of his clerks, he has been an inspiration, a model of honor, integrity, judgment, and insight. By example and through kind and patient instruction he has been my teacher. The failings of the present essay are attributable entirely to the inadequacy of the pupil. N 1972, the United States Supreme Court announced that "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."' As often happens with ringing declarations of sweeping principles, this statement obscured more than it enlightened. It embraced two significantly different strands of first amendment analysis without distinguishing them. One strand was well established in the case law and wholly justifiable; the other was entirely new and, I believe, indefensible. The principle that the Constitution forbids government discrimination against the expression of particular messages or ideas, the first part of the ringing declaration, was not new. It had emerged in the cases soon after the modern Court had begun taking the first amendment seriously. 2 Scholars readily had supported the principle. 3 It seems obvious, for example, that we cannot allow the * Assistant Professor, University of Virginia School of Law; law clerk to Justice Lewis F. Powell, Jr., 1978 Term. In this, as in other things, I owe an enormous intellectual debt to Peter W. Low and John C. Jeffries, Jr., who have taught with me many of the cases that are the subject of this article. Valuable comments on an earlier draft also were made by my colleagues Lillian R. BeVier, Saul X. Levmore, David A. Martin, George A. Rutherglen, Stephen A. Saltzburg, G. Edward White, and J. Harvie Wilkinson III. My student assistants John C. Ertmann, James P. Petrila, and Irene B. Cramer rendered great help. Errors and shortcomings should be attributed entirely to me. Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). 2 See notes infra and accompanying text. 3 See, e.g., A. Meiklejohn, Political Freedom 27 (1960); Van Alstyne, Political Speakers at 203

2 204 Virginia Law Review [Vol. 68:203 government to single out Democrats for special restrictions, or to outlaw criticism of its policies but to sanction praise. On the other hand, the notion that the Constitution with equal force forbids distinctions based only on the subject matter of expression, or on any aspect of its content, was new. No prior Court decision ever had rested its result on the premise of absolute content neutrality. Taken literally, this proposition means that governmental bodies must disregard all differences in the content of expression and therefore must treat all speech as indistinguishable. Any otherwise permissible restriction on speech must apply to all expression, regardless of subject matter, even if a particular restriction seems justified solely by its impact on one particular category of speech. Carried to its logical extreme, this rule of absolute content neutrality would require, to take one example, that federal labor law apply uniform rules to all picketing, whether labor-related or not, to ensure that no special burdens or advantages would attach to the content-based category of labor speech. 4 Since its announcement, the constitutional principle limiting the power of government to distinguish speech according to its content has played a significant role in the Supreme Court's decisions. 5 Although the Court soon backed away from the broad statement that the Constitution absolutely forbids such discrimination, it has continued to speak of the Constitution's "hostility" to all regulation of the content of speech, including government "prohibition of public discussion of an entire topic." State Universities: Some Constitutional Considerations, 111 U. Pa. L. Rev. 328, 338 (1963). 4 Cf. NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, (1980) (Blackmun, J., concurring) (questioning the limitation of the National Labor Relations Act to labor speech). 5 The Court, for example, has used this principle to invalidate legislation forbidding the display of movies containing nudity, but not of other movies, on drive-in theater screens visible from the highway, Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); discussion of pending legislative issues, but not of other topics, by corporations, First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978); the insertion in public utility bills of statements concerning controversial public issues, but not other subjects, Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980); the picketing of private residences for political ends, but not for labor or other commercial purposes, Carey v. Brown, 447 U.S. 455 (1980); the display on signs and billboards of most noncommercial messages, but not of political campaign posting of a significant range of commercial advertising, Metromedia, Inc. v. City of San Diego, 101 S. Ct (1981); and the use of campus facilities by secular groups, but not by religious speakers, at a State college, Widmar v. Vincent, 102 S. Ct. 269 (1981). * Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537 (1980).

3 1982] Content Discrimination 205 Despite its repeated invocations of a near-absolute content neutrality rule, the Court has not followed its own precept. Since 1972, it has refused to invalidate legislation or administrative action that forbids political advertising, but not other messages, in a publicly owned bus; 7 that prevents the clustering of theaters featuring adult movies, but not of other movie theaters; 8 and that prohibits the radio broadcast of sexually explicit speech, but not of other material, during certain hours. 9 In several cases where the principle has seemed relevant, the Court has not considered seriously whether it applied. 10 Throughout, it has failed either to reconcile these results with the absolute rule it enunciated or to describe the dimensions of the more limited rule it actually has applied. This divergence of judicial doctrine and judicial action has prompted confusion and concern. The lower courts have tried to interpret the mixed signals they have received from the Court, but the disarray of their decisions suggests the difficulty of their task. 1 " 7 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974). S Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). FCC v. Pacifica Found., 438 U.S. 726 (1978). 2o See CBS, Inc. v. FCC, 101 S. Ct (1981) (distinction between reasonable access rights of political candidates and of others in the context of TV advertising); NLRB v. Retail Store Employees Local 1001, 447 U.S. 607 (1980) (distinction between incitement to secondary boycott and other messages in the context of picketing); Greer v. Spock, 424 U.S. 828 (1976) (distinction between political campaign messages and other speech in the context of speaking on a military base); CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94 (1973) (distinction between political and commercial speech in the context of TV advertising). " Compare Knights of KKK v. East Baton Rouge Parish School Bd., 578 F.2d 1122, (5th Cir. 1978) (use of school facilities may not be denied only to groups advocating either racial or religious discrimination or violent overthrow of the government); Aiona v. Pai, 516 F.2d 892 (9th Cir. 1975) (ban of only political campaign signs from sidewalks and areas adjacent to highways is unconstitutional); Troyer v. Town of Babylon, 483 F. Supp (E.D.N.Y.) (prohibition of door-to-door distribution of religious literature and of solicitation of funds except by town residents is unconstitutional), aff'd per curiam sub nom. Town of Southhampton v. Troyer, 628 F.2d 1346 (2d Cir.), aff'd mem., 449 U.S. 988 (1980); Orazio v. Town of North Hempstead, 426 F. Supp (E.D.N.Y. 1977) (ban on political signs erected more than six weeks before election is unconstitutional); Wilson v. Chancellor, 418 F. Supp (D. Or. 1976) (prohibition of all political speakers from high school is unconstitutional); Lawrence Univ. Bicentennial Comm'n v. City of Appleton, 409 F. Supp (E.D. Wis. 1976) (prohibition of use of school facilities for partisan political or religious activities is unconstitutional); H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444 (Tenn. 1979) (ordinance that prohibits leaving handbills on private premises but that exempts political and religious material is unconstitutional), with Taxation With Representation v. Blumenthal, U.S. Tax Cas (D.C. Cir. Apr. 14, 1981) (tax advantage given veterans organizations but denied all other groups involved in political activities is constitutional), petition for rehearing en banc granted and opinion vacated, June 11, 1981,

4 Virginia Law Review [Vol. 68:203 Scholars have sought to guide the Court, but almost without exception, they have adopted the premise that some constitutional limits must exist on discrimination among subject matters or other broad aspects of the content of speech. 12 By contrast, this article has as its thesis the proposition that a broad content neutrality rule not only obscures free speech questions, but is antithetical to any rational analysis of freedom of expression. The approach reflected in the Court's free speech opinions, and in almost every scholarly discussion of the first amendment, posits some hierarchy of values entitled to constitutional protection. Such a hierarchy implies a similar ranking of particular categories of expression, according to the degree the expression implicates the underlying values. No sensible approach to first amendment questions can dispense with such a hierarchy, although the particular categories and the degree of protection they receive vary with the theory adopted. Yet, a broad content neutrality rule ignores any such hierarchy and requires that all speech receive the same treatment, regardless of the values implicated. In principle, then, a broad content neutrality rule is indefensible. This article first reviews generally the traditional formulations of first amendment values that have guided the courts and scholars. It then traces the development of the content neutrality rule in the Court's decisions. Faced with the incoherence of these results, it analyzes the various rules against content discrimination that logireargued, Oct. 14, 1981; Taxation With Representation v. United States, 585 F.2d 1219 (4th Cir. 1978) (same), cert. denied, 441 U.S. 905 (1979); DeGregory v. Giesing, 427 F. Supp. 910 (D. Conn. 1977) (prohibition of residential picketing limited to labor disputes is constitutional); Jewish Defense League v. Washington, 347 F. Supp (D.D.C. 1972) (three-judge court) (ban of demonstrations bringing foreign government "into public disrepute" within 500 feet of embassy is constitutional); Sussli v. City of San Mateo, 120 Cal. App. 3d 1, 173 Cal. Rptr. 781 (Ct. App.) (prohibition of posting of political signs on public property is constitutional), cert. denied, 102 S. Ct. 643 (1981). " See Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L.J. 727 (1980); Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1976); Scanlon, Freedom of Expression and Categories of Expression, 40 U. Pitt. L. Rev. 519 (1979); Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265 (1981); Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978). But see Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum. L. Rev. 1023, (1979); Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537, (1982). See also Redish, The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113 (1981). I did not receive a copy of Professor Westen's important essay until I had neared completion of this article so I have been unable to take full advantage of his many insights.

5 1982] Content Discrimination 207 cally can be derived from first amendment principles. Finally, it examines those cases in which the broad content neutrality rule has been at issue, and considers the extent to which the case results conform to a narrower and more justifiable rule. I. FIRST AMENDMENT DOCTRINE One would err to speak of first amendment doctrine as if a welldefined consensus existed about the principles underlying first amendment analysis. Anyone who follows the law must agree with Professor Emerson's observation that "[t]he outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases." 1 s Scholars have not achieved any greater success in developing a universally accepted first amendment theory. 1 ' 4 Yet, in spite of the wide range of views on the nature of the protection granted by the first amendment, common themes have emerged, and something of a mainstream has developed in scholarly literature. What follows is necessarily a simplistic and selective description of these ideas. Perhaps the leading theme in the Supreme Court's cases is the primacy of political speech. The expression of views on matters of public controversy, to quote a recent decision, "has always rested on the highest rung of the hierarchy of First Amendment values." 1 5 In the words of an important earlier opinion by the same author, Justice Brennan, "the central meaning of the First Amendment" 3 T. Emerson, The System of Freedom of Expression 15 (1970). H For a sample of the more influential discussions, see A. Bickel, The Morality of Consent (1975); Z. Chafee, Free Speech in the United States (1954); J. Ely, Democracy and Distrust (1980); T. Emerson, supra note 13; A. Meiklejohn, supra note 3; A. Meiklejohn, Free Speech and Its Relation to Self-government (1948); Baker, Scope of the First Amendment Freedom of Speech, 25 U.C.L.A. L. Rev. 964 (1978); BeVier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978); Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Research J. 521; Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965); Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup. Ct. Rev. 191; Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204 (1972); Wellington, On Freedom of Expression, 88 Yale L.J. 105 (1979). " Carey v. Brown, 447 U.S. 455, 467 (1980).

6 208 Virginia Law Review [Vol. 68:203 lies in its protection of debate of public issues." 6 Chief Justice Hughes voiced this theme when in two important early decisions he described the first amendment as directed "to the end that the government may be responsive to the will of the people." 17 Through the decades, numerous opinions of the Court have made similar declarations. 8 Scholarly support for the primacy of political speech also is abundant. Professor Meiklejohn, the foremost exponent of the political speech principle, argued that complete freedom on the part of the public to discuss matters relating to government is a precondition of a representative democracy such as the Constitution established in our country. 9 This freedom is necessary both generally to promote the best choices by the electorate and particularly to safeguard against the government's attempts to subvert democratic supervision of its actions. 20 Most important for a theory that asserts a judicially enforced right, its proponents have argued that the judiciary is best suited to implement the protection of political speech because it is the branch of government least interested in suppressing it. 21 Acceptance of the basic tenents of the Meiklejohn theory is so widespread that, in the words of Professors Jackson and Jeffries, "the fighting issue is not the validity of Meiklejohn's insight but rather its exclusivity. '22 On occasion, the Court has made statements to the effect that, although "a central purpose of the First Amendment '[is] to protect the free discussion of governmental affairs,'" its "cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters-to take a nonexhaustive list of labels-is not entitled to full First 16 New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). 17 De Jonge v. Oregon, 299 U.S. 353, 365 (1937); Stromberg v. California, 283 U.S. 359, 369 (1931). I See, e.g., First Nat'l Bank v. Bellotti, 435 U.S. 765, (1978); Cohen v. California, 403 U.S. 15, 24 (1971); Mills v. Alabama, 384 U.S. 214, 218 (1966); Garrison v. Louisiana, 379 U.S. 64, (1963); NAACP v. Button, 371 U.S. 415, 429 (1963); Terminiello v. Chicago, 337 U.S. 1, 4 (1949); Bridges v. California, 314 U.S. 252, 270 (1941); Thornhill v. Alabama, 310 U.S. 88, (1940). 16 See A. Meiklejohn, supra note 3; Meiklejoln, The First Amendment is an Absolute, 1961 Sup. Ct. Rev See A. Meiklejohn, supra note 3, at See J. Ely, supra note 14, at ; Bork, supra note 14, at Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 11 (1979).

7 1982] Content Discrimination Amendment protection. 23 This assertion is illustrated best in the area of obscenity, where the Court has drawn the line between protected and unprotected speech at the point where the expression lacks any substantial social value, not where it lacks only political relevance. 24 Outside the area of political speech, however, the Court's decisions reflect confusion of purpose and uncertainty about the meaning of "full" first amendment protection. 2 5 Scholars also disagree as to whether the political speech principle can justify protecting more than political speech. Meiklejohn and his colleague, Professor Kalven, believed that the protection of democratic self-government means protection of those forms of expression that enhance the electorate's "capacity for sane and objective judgment. ' 26 Professor Bork has disagreed with the extension, arguing that other, obviously unprotected activities form personality and attitudes as much as does intellectual, nonpolitical speech. 27 Professor BeVier has argued that although the logical limits of the political speech principle do not comprise nonpolitical speech, considerations of practicality arising from the implementation of the principle may justify some extensions. 2 Other scholars, dissatisfied with the limits of the Meiklejohn theory and the Court's uncertain efforts to protect nonpolitical speech, have sought to develop different approaches to supplement them. Most prominent among these is Professor Emerson's "general theory" of the first amendment. 29 Although he has accepted Meiklejohn's observations about the importance of political speech, Emerson has posited an independent first amendment value in the individual's achievement of self-fulfillment through expression." The Court undoubtedly was alluding to Emerson's 23 Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977) (quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976)). 1' See, e.g., Miller v. California, 413 U.S. 15, 26 (1973); Bork, supra note 14, at See, e.g., Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, (1981) (plurality opinion); FCC v. Pacifica Found., 438 U.S. 726 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). 26 Kalven, supra note 14, at 221; Meiklejohn, supra note 19, at Bork, supra note 14, at See W. Berns, The First Amendment and the Future of American Democracy (1976); A. Bickel, supra note 14, at BeVier, supra note 14, at 332, 352. =' See T. Emerson, supra note 13; T. Emerson, Toward a General Theory of the First Amendment (1966); Emerson, First Amendment Doctrine and the Burger Court, 68 Calif. L. Rev. 422 (1980) [hereinafter cited as Burger Court]. 30 T. Emerson, supra note 13, at 6. See BeVier, supra note 14, at

8 210 Virginia Law Review [Vol. 68:203 theory when in one case it described the first amendment as designed "[t]o permit the continued building of our politics and culture, and to assure self-fulfillment for each individual." ' Emerson based his argument for judicial protection of the self-fulfilling aspects of speech not on the historical meaning of the first amendment or the implications of constitutional structure, but rather on the historically successful role of the Court in enforcing analogous rights. 3 2 Although I must admit some reservations about the validity, but not the elegance, of Emerson's contributions to first amendment theory, 3 one observation holds true about both his and Meiklejohn's approaches. Neither argues that the phenomenon of speech as such merits constitutional protection. Rather, each contends that certain forms of speech and other expression advance interests safeguarded by the Constitution. For Meildejohn, whether a particular instance of speech advances protected interests depends directly on the content of the speech, i.e., on whether it involves a matter within the scope of political debate. For Emerson, the path has an extra turn, but the destination is the same. His theory protects "expression," but not "conduct," and the line between the two is drawn after, among other things, a functional inquiry about the purpose served by the speech at issue. This inquiry in turn can be resolved only by reference to the content of the speech Police Dep't v. Mosley, 408 U.S. 92, (1972). See also First Nat'l Bank v. Bellotti, 435 U.S. 765, (1978) (White, J., dissenting). 32 T. Emerson, supra note 13, at Although the Meiklejohn and Emerson analyses have not exhausted the potential interpretations of the first amendment, they have predominated. For variations on these broad themes, see generally the authorities cited at note 14 supra. 33 My principal reservations concern the line he draws between expression and conduct, the purpose for which seems unrelated to the principles he discerns as requiring the protection of expression, see BeVier, supra note 14, at 319; Bork, supra note 14, at 34; Jackson & Jeffries, supra note 22, at 13 n.46, his failure to articulate a principled basis for judicial enforcement of this right, see Bork, supra note 14, at 1-4, and the tension that exists between the antidemocratic nature of his approach and the democratic goals of the political speech principle, see BeVier, supra note 14, at See T. Emerson, supra note 13, at 18. To take one example, Emerson draws the line between expression and conduct so as to exclude speech limited to commercial transactions from the scope of protected expression. See id. at 311; Burger Court, supra note 29, at See also Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 Iowa L. Rev. 1 (1976).

9 1982] Content Discrimination One can make a similar observation about any plausible theory of first amendment rights. Putting aside for the moment the question of legitimacy, and assuming no constraint on the choice of values that the Court might wish to pursue through protection of speech, one could not devise a rational system of freedom of expression without differentiating among kinds of speech according to content. Even a theory that asserts the primacy of communication as such (including, to be rigorous, protecting with equal force communication of opposition to a bill before Congress, false testimony in a court of law, betrayal of the nation, and a proposal to kill the President or to set prices at a certain level) distinguishes between speech that is intelligible to its audience and speech that is not. 5 The only theory that, as a matter of principle, regards all speech as indistinguishable is one that regards the phenomenon of speech itself as a worthy end of constitutional protection. Such a claim extends defense of individual autonomy to the point of total solipsism and seems preposterous on its face. It necessarily rejects the premise that government depends on the maintenance of certain social values and substitutes a bizarre physiological or experiential criterion of value. It also defies bare logic. If individuals have an absolute right to speak or, more generally, to engage in expression, regardless of its significance to anyone else, how can society or, more precisely, the courts consistently retain the power to distinguish expression from anything else? The notion that the constitutional value of speech varies according to its content has not been lost completely on the Court. In an opinion containing one of the more unqualified statements of the broad content neutrality rule, the Court in a footnote admitted that some of its own decisions had attached great significance to the content of speech. 36 Whether an instance of expression falls into the category of libel, offensive speech, commercial speech, or obscenity determines the degree of protection it receives. 87 Select- 3' Although the position outlined in the text may seem extreme and unrealistic, exactly such a distinction between communicative and uncommunicative speech seems to underlie the first amendment analysis of at least some Justices. See, e.g., Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, 2890 (1981) (plurality opinion); First Nat'l Bank v. Bellotti, 435 U.S. 765, (1978) (White, J., dissenting). ' Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 n.5 (1980). 37 See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (commercial speech); FCC v. Pacifica Found., 438 U.S. 726 (1978) (offensive speech);

10 212 Virginia Law Review [Vol. 68:203 ing the proper category, of course, requires an inquiry into the content of the speech. For purposes of illustration, the example of defamation serves admirably. Under the rules developed by the Court, speech expressing only ideas cannot be punished by libel or slander actions, but in certain instances, speech containing statements of fact can. 3s The decisionmaker must determine whether the speech contained statements of fact, and if so, whether these statements were false and defamatory, and to whom they referred. 39 False and defamatory statements about a public figure cannot be punished without proof of purposeful lying or reckless disregard for the truth. 40 False statements about private individuals may result in liability upon a finding of negligence. 1 Moreover, the thrust of recent decisions suggests that if false statements about private persons were to arise entirely in a commercial context, the government could impose some kinds of liability without any finding of fault. 42 These rules, taken together, describe a constitutional formula in which the independent variable is the content of speech, and the dependent variable is the degree of constitutional protection. This constitutional formula accomplishes two things: it distinguishes protected speech from wholly unprotected speech, and it divides protected speech into categories of different constitutional significance. These two functions require separate justification. Although some scholars concede the necessity of making distinctions on the basis of content between protected and unprotected speech, they doubt the wisdom of assigning protected speech to categories that enjoy different levels of protection. These critics admit that the Court engages in the practice of categorizing, but argue that such distinctions encourage judicial manipulation and result in underprotection of speech. In their view, a hierarchial, categorical system of protection too readily invites judicial accept- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (libel); Miller v. California, 413 U.S. 15 (1973) (obscenity). 38 Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964). " New York Times Co. v. Sullivan, 376 U.S. 254, (1964). 40 Id. 41 Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Subsequent statements suggest that it remains an open question whether this rule applies only to newspapers or to all speakers. See Hutchinson v. Proxmire, 443 U.S. 111, (1979). 42 See Friedman v. Rogers, 440 U.S. 1, 9 (1979).

11 1982] Content Discrimination ance of governmental justifications for the suppression of less protected speech by allowing the Court to cabin the effect of its decisions. They assert that the Court looks uncritically at such justifications because of a false sense of security that the result would be different if more significant speech were involved. 43 On balance, however, the experience of the Court belies these criticisms. For the most part, the concept of less-protected speech has been used to expand first amendment protection, not to contract it. Again, the best illustration may be the law of defamation. Before New York Times Co. v. Sullivan," it appeared reasonably well settled that because of the strong governmental interest in compensating injuries to reputation, defamatory falsehoods merited no first amendment protection. 45 In New York Times, the Court recognized that apprehension of the risk of errors in distinguishing falsehoods deterred some protected speech. 4 " The case resulted in a compromise that gives significant protection to defamatory falsehoods, but that does not remove completely the power of the government to require compensation for the injuries they cause. 47 The point may be generalized. Strong arguments can be made against forcing the Court toward extreme choices in the formulation of constitutional doctrine. If the Court could not give lesser protection to categories of speech of only moderate constitutional significance, it probably would be less inclined to honor the strategic and pragmatic reasons for extending safeguards to speech intrinsically lacking in constitutional value. 48 The result would be ei- 43 See Scanlon, supra note 12, at ; Schauer, supra note 12, at U.S. 254 (1964). 45 See Beauharnais v. Illinois, 343 U.S. 250, (1952); Chaplinsky v. New Hampshire, 315 U.S. 568, (1942); Near v. Minnesota, 283 U.S. 697, (1931) U.S. at One may view as a continuation of this extension the Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), to provide some constitutional protection to defamation of indisputably private figures. The development of constitutional protection for incitement of unlawful conduct and commercial speech also has conformed to this pattern. Compare Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748 (1976) (commercial speech is entitled to some constitutional protection), and Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement of unlawful behavior is protected unless unlawful action is imminent), with Valentine v. Chrestensen, 316 U.S. 52 (1942) (commercial speech is outside the scope of the first amendment), and Whitney v. California, 274 U.S. 357 (1927) (speech tending to incite unlawful action is unprotected, whether action is imminent or not). 48 For a discussion of the distinction between speech protected in principle and speech

12 Virginia Law Review [Vol. 68:203 ther a more restricted concept of protected speech or a dilution of the level of protection given to the most significant speech. That the Court may not make the right distinctions, a fear that seems to underlie the criticism of categorical analysis, does not mean that it should not attempt to do so. 4 1 In sum, once one concedes the implausibility of a constitutional principle that regards all expression as equal in value regardless of its content, one must confront the task of making distinctions based on the content of speech as a necessary aspect of defining the goals the first amendment is to serve. The Court has proceeded a considerable way in this endeavor, although both the distinctions and the purposes it has perceived are far from clear. For the purpose of this article, the wisdom of the particular choices the Court has made is not nearly as important as the fact that it has felt compelled to make them. The question remains whether governmental bodies other than courts are entitled to make distinctions based on the content of speech. An affirmative answer seems obvious, but the broad content neutrality rule articulated by the Court dictates otherwise. To understand the tension between the Court's own approach to first amendment problems and the content neutrality rule it seems to apply to other bodies, one must trace the gradual development of the rule in the Court's cases. II. CONTENT DISCRIMINATION AND THE COURT The rule demanding content neutrality in governmental action affecting speech has gone through four stages of development. From the inception of modern first amendment jurisprudence through the early years of the Warren Court, the Court struck down statutes and ordinances only if they discriminated against proponents of one side of a particular public issue. In the midprotected only because of strategic and pragmatic considerations, see generally BeVier, supra note 14. " For purposes of this point, it makes no difference whether one employs a first amendment analysis that recognizes certain categories of speech of differing constitutional significance or one that in every case balances the constitutional significance of the particular speech at issue against the governmental interests in its suppression. The latter approach can be characterized (or perhaps caricatured) as a form of categorical analysis in which the number of categories of speech equal the number of cases in which its suppression is at issue. See generally Farber, supra note 12; Redish, supra note 12.

13 19821 Content Discrimination 1960's, some members of the Court began to suggest that the first amendment requires a broader neutrality rule. Later, the Burger Court adopted absolute content neutrality as a constitutional rule. The Court soon discovered, however, that it could not adhere consistently to this rule. A. From Grosjean to Fowler: Viewpoint Discrimination Concern about discrimination in the context of free expression emerged as an outgrowth of the general extension of the first amendment undertaken by the Hughes Court. In Grosjean v. American Press, 50 the Court held unconstitutional a Louisiana tax on newspapers enjoying circulations of greater than 20,000 copies a week. Justice Sutherland's opinion for the Court leaves much to be desired in terms of clarity and candor, but a plausible reading in light of the record would ground its holding on the tax's discriminatory purpose and effect. The tax applied to only 13 of Louisiana's 163 newspapers, and 12 of the 13 had constituted the entire journalistic opposition to a recent legislative proposal of Governor Huey Long. Proponents of the tax, particularly Governor Long, identified its purpose as punishment of the maleficent twelve, with the inclusion of the innocent thirteenth a regrettable necessity. 5 1 In striking down the tax, the Court disclaimed any intention "to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. 5 2 Because the tax had the "plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers, '5 3 however, it could not survive constitutional scrutiny. If one focuses on this aspect of the case, Grosjean appears to stand for the proposition that because a discriminatory tax can deter protected speech just as can criminal penalties, it is objectionable for the same reasons that criminal penalties would be. Because the first amendment obviously forbids the government to put people in jail for opposing legislation, it also precludes fines in the form of a tax. In the Term following Grosjean, the Court again struck down a 297 U.S. 233 (1936). 51 See Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, (1970). " 297 U.S. at 250. " Id. at 251.

14 216 Virginia Law Review [Vol. 68:203 statute that limited expression because of the prior statements of the speaker. De Jonge v. Oregon" involved a criminal syndicalism statute that prohibited public meetings by groups that advocated the forceful overthrow of the government. As construed by the Oregon Supreme Court, the statute outlawed even meetings in which forceful overthrow was not mentioned." The issue presented was analytically distinct from the question decided in Grosjean because, under the contemporary interpretation of the first amendment, the prior speech that triggered the prohibition did not itself enjoy first amendment protection. 6 The De Jonge Court, however, reached the same result as Grosjean, in part because it perceived a distinct value in protecting peaceable utterances on issues of public moment, even - perhaps especially - by persons otherwise inclined to indulge in constitutionally unprotected incitements to violence. Oregon's selective ban on public meetings suppressed speech that, although unprotected, bore a close relation to speech that served a fundamental constitutional end, and therefore had the effect of suppressing the latter. 5 7 Following Grosjean and De Jonge, the attention of the Court shifted to legislation that did not explicitly suppress specific viewpoints, but permitted public authorities to achieve this result. Although the facts differed, each case involved some sort of prior licensing scheme for some form of public expression. In each case where the Court struck down the legislation, the standard for granting a license was sufficiently elastic to allow the authorities to prevent the expression of unconventional views. Each case involved instances where this power had been exercised to the detriment of unpopular minorities and with respect to speech clearly within the core of first amendment protection. 58 Although the Court saw other evils in these licensing schemes besides the danger 299 U.S. 353 (1937). Id. at See Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925); Abrams v. United States, 250 U.S. 616 (1919); Schenck v. United States, 249 U.S. 47 (1919) U.S. at 365. " See Fowler v. Rhode Island, 345 U.S. 67 (1953); Kunz v. New York, 340 U.S. 290 (1951); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948); Thomas v. Collins, 323 U.S. 516 (1945); Largent v. Texas, 318 U.S. 418 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940); Hague v. CIO, 307 U.S. 496 (1939); Lovell v. Griffin, 303 U.S. 444 (1938).

15 1982] Content Discrimination of selective enforcement, these cases support the proposition that the Constitution does not tolerate legislation that grants government the discretion to burden the expression of particular ideas. 59 In 1951, the Court invoked the equal protection clause for the first time in a standardless permit case. The town of Havre de Grace, Maryland, traditionally had allowed most groups to use its park for meetings and demonstrations, conditioned only on obtaining a permit in advance. The town council, however, refused a request by Jehovah's Witnesses to use the otherwise available park for a Sunday bible reading. When the sect convened anyway, arrests and prosecutions for disorderly conduct ensued. In Niemotko v. Maryland, e0 the Court held in a brief opinion that a conviction under these circumstances violated the Constitution. Chief Justice Vinson, speaking for the Court, declared that "[t]he right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body." 61 The terseness of the Niemotko opinion and its cryptic reference to the equal protection clause make a definitive analysis impossible. What seems noteworthy about the case, however, is that the Court probably based its concern about discrimination not on the different treatment of Niemotko's actions and of other forms of expression generally, but rather on the narrower ground that similar religious observances sponsored by other sects had taken place in the park without objection. 2 This point is highlighted by Fowler v. Rhode Island, 6 3 a case arising two years later, which the Court found "on all fours" with Niemotko." The statute struck down in Fowler allowed "church services" to be conducted in public parks, but otherwise prohibited any "religious meeting" in those places See generally Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, (1981) (Brennan, J., concurring in result); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, (1960) U.S. 268 (1951). 61 Id. at See id. at U.S. 67 (1953). Id. at 69. During oral argument Raymond J. Pettine, Rhode Island's assistant attorney general and later a distinguished federal judge, conceded both that the statute at issue did not prohibit church services in a public park and that the Jehovah's Witnesses convicted of

16 218 Virginia Law Review [Vol. 68:203 As the Court analyzed the case, "a relgious service of Jehovah's Witnesses is treated differently than a religious service of other sects. That amounts to the state preferring some religious groups over this one." 66 Niemotko, in the view of the Court that recently had decided it, prohibited exactly such discrimination. 6 7 Although significant differences exist among the cases, the common thread running through them seems more striking. Grosjean and De Jonge involved suppressions of the use of private channels of communication, whereas the standardless permit cases, including Niemotko and Fowler, dealt with denials of access to public property. In each case, however, the Court held unconstitutional legislation that singled out particular ideas or beliefs for special penalties while leaving unfettered the expression of closely related, and in some sense directly competing, messages. What this article terms "viewpoint discrimination," or discrimination between competing viewpoints over a particular issue, was the problem throughout, and in every case the expression of the point of view discriminated against fell well within the undisputed core of first amendment protection. B. Cox v. Louisiana: Intimations of a Broader Rule The first suggestion that the Constitution prohibits differential treatment of messages that do not address the same subject matter appeared in Justice Black's concurring opinion in Cox v. Louisiana," 5 in which Justice Clark joined. 6 9 This case was one of several contemporaneous decisions considering first amendment rights in the context of southern civil rights demonstrations. 70 Cox, who led a peaceful march on a public street to protest racial segregation, was arrested for and convicted of breaching the peace and obstructing a public passageway. 71 Louisiana defined each of these violating it were engaged in a religious meeting. Id. " Id. 67 Id. :8 379 U.S. 536, (1965) (concurring opinion). I9 Id. at See Adderley v. Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966); Edwards v. South Carolina, 372 U.S. 229 (1963); Garner v. Louisiana, 368 U.S. 157 (1961). See generally H. Kalven, The Negro and the First Amendment (1965). 71 Cox also was convicted of violating a statute prohibiting demonstrations near a courthouse. The Court dealt with this conviction in a separate opinion, see Cox v. Louisiana (Cox

17 1982] Content Discrimination 219 crimes through a statute that excepted from its general prohibition "any of [the] legitimate activities" of "a bona fide legitimate labor organization. 72 A majority of the Justices voted to strike down both the disorderly conduct conviction, on the grounds of insufficient evidence and overbreadth, and the blocking traffic conviction, on the ground that the local authorities regularly authorized exceptions to the general prohibition but followed no governing standard in doing so. For these Justices, the underlying issue with respect to the latter conviction was viewpoint discrimination, and the result reached was firmly in the tradition of the earlier cases. 7 Unlike the Cox majority, Justice Black was unwilling to rest his holding entirely on the rather sketchy indications of viewpoint discrimination or to reach the insufficient evidence issue. Instead, he contended that the statutes' unambiguous labor exceptions rendered the provisions unconstitutional. His discussion deserves quotation in full: I believe that the First and Fourteenth Amendments require that if the streets of a town are open to some views, they must be open to all. It is worth noting in passing that the objectives of labor unions and of the group led by Cox here may have much in common. Both frequently protest discrimination against their members in the matter of employment... This Louisiana law opens the streets for union assembly, picketing, and public advocacy, while denying that opportunity to groups protesting against racial discrimination. As I said above, I have no doubt about the general power of Louisiana to bar all picketing on its streets and highways. Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the II), 379 U.S. 599 (1965), from which Justice Black dissented. The majority reasoned that although Louisiana undoubtedly could forbid demonstrations "near" a courthouse, law authorities had advised Cox that his demonstration was not so near as to trigger the prohibition. Justice Black disagreed with the majority's characterization of the facts, but not with its premise. See id. at (Black, J., concurring and dissenting). 7' See id. at 576 n.1, 580 n.2 (quoting La. Rev. Stat. 14:103.1, :100.1 (Cum. Supp. 1962)) U.S. at , Justice Black concurred in the Court's overbreadth holding as to the breach-of-peace conviction, Cox II, 379 U.S. at , and apparently agreed that the obstructing-passageway conviction constituted viewpoint discrimination, id. at 581. Accordingly, his discussion of other forms of discrimination amounted only to an alternate holding as to each of the convictions.

18 Virginia Law Review [Vol. 68:203 views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment. Moreover, as the Court points out, city officials despite this statute apparently have permitted favored groups other than labor unions to block the streets with their gatherings."" Justice Black saw the case as embodying three distinct forms of discrimination, any one of which would justify reversal of the convictions. First, by giving preferential treatment to the meetings of organized labor groups, Louisiana had attempted "to pick and choose among the views it is willing to have discussed on its streets. '75 Second, it had employed racial criteria to select disfavored views. Third, in practice the State "apparently" had employed a system of viewpoint discrimination. Of the three forms of discrimination Justice Black identified, only the first raised a novel constitutional question. Grosjean, De Jonge, and the standardless permit cases had struck down legislation that not only had permitted picking and choosing among various views as such, but had required or allowed the imposition of special burdens on particular viewpoints. Cox, by contrast, involved an extensive but incomplete limitation on expression. Of the messages burdened by Louisiana's statutes, only a fraction readily could be portrayed as related to, or competitive with, the speech protected by the statutes. For example, persons wishing to protest the existence of nuclear weapons or United States membership in the United Nations were no worse off under Louisiana's statutes than under a total ban of public demonstrations, because none of the permitted labor speech would address these subjects. Perhaps in response to this point, Justice Black struggled hard to demonstrate that at least some of the speech allowed by Louisi- 7" Cox II, 379 U.S. at Id. at 581.

19 1982] Content Discrimination 221 ana's labor exception could address the same subject as the message Cox had attempted to express. If Louisiana tolerated the views of union members on the issue of employment discrimination, he asserted, the Constitution required similar tolerance for Cox's opinions on the subject. Surely Louisiana did not enact these statutes with the purpose of bringing about any particular instance of viewpoint discrimination. The sweep of the statutes' prohibitions extended far beyond what was needed to give labor unions an advantage on questions of employment discrimination. Whatever evils the statutes embodied, they certainly did not represent a concerted effort by Louisiana to skew public debate on the issue Cox sought to address. Such an absence of invidious purpose, however, may not be fatal to Justice Black's constitutional objection. The statutes, at least as Justice Black interpreted them, allowed the expression of one point of view on the issue of employment while forbidding others. His position may have been that any legislation that effects the differential treatment of different points of view, even in a single instance, should fall because courts must not tolerate viewpoint discrimination in any form. If this had been his position, he might have been tempted to adopt a constitutional rule forbidding any distinction among kinds of speech based on content, because almost every distinction has the potential for competing views on opposite sides." 6 Another possible explanation of Justice Black's position rests on the different perspective the civil rights cases brought to the question of access to public facilities. The pressure and conflict of the civil rights movement in the South made much more acute the issue of access to public streets and grounds for purposes of political protest. For the most part, the Court had dealt with this issue, encapsulated in what has become known as the public forum doctrine, in the context of patent viewpoint discrimination against unpopular minorities. Lurking in Cox, by contrast, was the question whether civil rights demonstrators had a particular right to picket in a forum of great moment to their cause, even if a general restriction on picketing were appropriate. 77 7' See notes infra and accompanying text. 7 See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1. Professor Kalven's description of the Court's stance in the earlier public access cases is

20 222 Virginia Law Review [Vol. 68:203 Delineating a selective right of access for particular speakers in a particular place seems an especially complex and difficult task. Satisfactory resolution of the problem requires, among other things, a fairly coherent sense of the priority of the values at stake. 78 Furthermore, by its very complexity, the question of selective access may invite manipulative resolution by judges hostile to particular outcomes. Perhaps to avoid these difficulties, Justice Black chose in Cox to announce an all-or-nothing rule: denials of access to public facilities for purposes of demonstrations should be tolerated, if at all, only when all possible users are excluded. By applying this formula, he avoided addressing the selective access question head-on in a context where it could pose the most problems, namely a public street, and confined the issue to areas where he satisfactorily could sustain a rule of no access for anyone. 79 The result, however, was to graft onto the established rule of viewpoint neutrality an extension apparently meant to address a problem different from discrimination against protected speech. At the very least, this apparent confusion of access and discrimination rules is analytically sloppy. 80 In the years following Cox, the Court took no further steps to explore the implications of Justice Black's position. It did decide another selective exclusion case, but the issue as framed by the Court involved the traditional problem of imposition of special penalties on proponents of a particular view by a governmental body. In Tinker v. Des Moines Independent Community School District, 81 the Court overturned school suspensions imposed on two students who had worn black armbands to class to protest American involvement in the Vietnam war. The Court noted that school authorities had allowed the wearing of other political symbols such as political campaign buttons, and concluded that "the worth quoting: "We were likely to regard the law that had been developed as one that concerned a luxury civil liberty. It was a sign of how tolerant toward a sharply dissident minority our society could be, if the minority was small and eccentric." Id. at 2. See note 155 infra and accompanying text. For Justice Black, see Cox II, 379 U.S. at 583 (Black, J., concurring and dissenting), as for his Brethren, see id. at 562, the areas where public access could be completely denied included the vicinity of courthouses, and of jails, Adderley v. Florida, 385 U.S. 39, 47 (1966). s For arguments that this confusion may have led the Court both to unsatisfactory access results and to adoption of unjustifiably broad antidiscrimination rules, see notes 155, infra and accompanying text U.S. 503 (1969).

21 19821 Content Discrimination prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. '8 2 Justice Black dissented, apparently convinced that the school officials had acted because of legitimate disciplinary concerns rather than from a desire to suppress a particular point of view. 83 In this instance, his conviction about the good faith of the authorities overcame whatever reservations he might have had about the discriminatory effect of the school's actions. C. Police Department v. Mosley: Announcement of a Content Neutrality Rule It was not until the 1972 case of Police Department v. Mosley," after Justices Black and Harlan had died and the full complement of Nixon-appointed Justices was in place, that the Court mined the possible implications of Justice Black's concurrence in Cox. In 1968, Earl Mosley, a postal employee, spent his free time picketing a Chicago high school during class hours. His sign accused the school administration of racial discrimination. When Chicago, for reasons apparently unrelated to Mosley's protest, enacted an ordinance prohibiting any demonstration within 150 feet of a school building while classes were in session, Mosely went to federal court to prevent enforcement. The district court dismissed his complaint, but on appeal the United States Court of Appeals for the Seventh Circuit held the ordinance constitutionally overbroad under the first amendment. 8 5 The Supreme Court affirmed unanimously, but it rested its decision on a different ground. 86 s' Id. at 511. s' Id. at (Black, J., dissenting) U.S. 92 (1972). s5 Police Dep't v. Mosley, 432 F.2d 1256 (7th Cir. 1970). 88 The companion case, Grayned v. City of Rockford, 408 U.S. 104 (1972), may shed some light on the Mosley decision. The Grayned Court upheld a conviction based on facts not unlike those in Mosley for the violation of an ordinance prohibiting the creation of "any noise or diversion" tending to disturb a school session. Id. at 108 (quoting Code of Ordinances of City of Rockford, ch (a)). Although Mosley himself engaged in slightly less disruptive behavior, the juxtaposition of the two cases strongly suggests that the Court was prepared to uphold a complete ban on access to the vicinity of schools and therefore that Mosley could have been convicted constitutionally but for the labor exception in the statute, quoted in text accompanying note 87 infra. The Court, however, explicitly reserved this question. Id. at 107 n.2.

22 Virginia Law Review [Vol. 68:203 The Chicago ordinance excluded from its prohibition "the peaceful picketing of any school involved in a labor dispute. '8 7 Because of this exclusion, the Court chose to analyze the ordinance in terms of the equal protection clause. Although the first amendment informed its analysis, the Court asserted that, at bottom, the crucial question was one posed by "all" equal protection cases: "[W]hether there is an appropriate governmental interest suitably furthered by the differential treatment." 88 What constituted an "appropriate" governmental interest, however, was not made clear by the Court's analysis. At points in the Mosley opinion, one finds flat assertions that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content" 8 and that it "may not select which issues are worth discussing or debating in public facilities." 90 The opinion declares that "'a concern about content'... is never permitted." 91 Elsewhere, however, it concedes that "there may be sufficient regulatory interests justifying selective exclusions or distinctions among pickets," 92 and demands only that "discriminations among pickets... be tailored to serve a substantial governmental interest." 9 The Court did not clarify matters by stating that it adopted the views expressed by Justice Black in Cox, inasmuch as he had perceived three different kinds of discrimination in that case. 9 4 However unsatisfactory may have been the Mosley Court's description of the standard governing discrimination of the sort at U.S. at 93 (quoting Chicago, Ill., Municipal Code, ch (i)). Id. at 95. There followed a string citation to Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164 (1972); Dunn v. Blumstein, 405 U.S. 330 (1972); Reed v. Reed, 404 U.S. 71 (1971). In retrospect, the citation seems significant because two of these cases are the progenitors of the "middle-tier" line of equal protection cases. See Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972). At the time of the decision, however, this standard of review had not been articulated, and one cannot assume its application to speech discrimination cases even if one were sure of its content. :9 408 U.S. at 95. 0o Id. at Id. at 99 (quoting Kalven, supra note 77, at 29). Professor Kalven, however, appears to have used the term "content" to refer to a speaker's point of view and not to broad categories of speech. See Kalven, supra note 77, at U.S. at Id. at See note 74 supra and accompanying text.

23 19821 Content Discrimination 225 issue, the Court's application of the standard raised even more questions. Chicago had asserted that its ordinance was "a device for preventing disruption of the school," a concern the Court conceded to be "legitimate." 9 5 But, the Court asserted, "Chicago itself has determined that peaceful labor picketing during school hours is not an undue interference with school," and this determination undermined any justification for a prohibition of peaceful nonlabor picketing. 9 The City could not argue that labor picketing as a class was less prone to produce violence, because "[plredictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter." ' ' 7 These responses to the City's argument can support either of two very different conclusions: Chicago did not prevail because its reasoning did not provide even minimal support for the rationality of its ordinance, or Chicago did not prevail because the perfectly rational arguments it could have advanced for its ordinance were insufficient to meet a very heavy burden of justification. Either conclusion is possible, because the Court did not consider, and therefore did not indicate how it would weigh, one potentially significant explanation of the ordinance's distinction between labor and other forms of picketing. Chicago may have included the labor exception not because it regarded labor picketing as nondisruptive, but because it believed higher authorities already had dealt with this problem in a manner that prevented municipal regulation. The City argued that federal labor law had preempted the field of worksite picketing in a way that would have invalidated an extension of the ordinance to labor picketing."' The Court did not meet this argument directly, but instead noted that public schools such as the one Mosley picketed fell outside the scope of federal regulation U.S. at "Id. 7 Id. at Hs Arguing before the Seventh Circuit, Chicago had relied simply on labor preemption. Before the Supreme Court, the City conceded that the National Labor Relations Act did not apply to its public schools, but argued that "observance by employees of private employers of picket lines of public employees can have repercussions in the federal sphere." Id. at 102 n.9 (quoting Reply Brief at 12). " Id.

24 Virginia Law Review [Vol. 68:203 The Court's response, however, was incomplete. It accounted neither for the application of federal labor law to private schools, 100 nor for the effect of state regulation on public schools. As for the latter, at the time Chicago passed its ordinance Illinois law prohibited public employees, including school employees, from going on strike and authorized state courts to enjoin such activities. 101 Chicago reasonably may have assumed that the only labor picketing that was likely to occur at public schools during class time would be the product of an illegal, enjoinable strike and thus may have concluded that a prohibition of such picketing would be redundant. Although this explanation for the labor exception is far from airtight, it seems at least as plausible as the hypothesis that Chicago enacted its sweeping prohibition of school picketing with a view toward silencing Mosley and those like him. A more significant and less defensible omission in the Mosley opinion is its failure to establish a constitutionally significant relationship between the expression allowed by the labor exception and the message Mosley wished to convey. The Court may have meant to adopt the relationship described by Justice Black in Cox, 02 tying union views on employment discrimination to other viewpoints on that subject. The facts in Mosley were consistent with Justice Black's linkage, as the labor picketing allowed by Chicago might have competed with the attack on racial discrimination expressed by Mosley. 10 The failure of the Mosley Court explicitly to make this connection, however, leaves the impression that it did not consider such a relationship necessary. The opinion's broader statements about the impermissibility of all content discrimination reinforce this impression. Least defensible of all was the Court's failure to acknowledge the 100 Chicago hardly can be faulted for its failure to realize that private parochial secondary schools also did not come under the National Labor Relations Act. This discovery came as something of a surpise some years later. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979). 101 Board of Educ. v. Redding, 32 IlM. 2d 567, 573, 207 N.E.2d 427, 431 (1965). See City of Pana v. Crowe, 57 Il1. 2d 547, , 316 N.E.2d 513, 515 (1974), noted in 6 Loy. U. Chi. L.J. 187 (1975). '0' See 379 U.S. at (concurring opinion); notes supra and accompanying text. 103 Indeed, the link may have been stronger in Mosley than in Cox, as the latter case involved a general ban on picketing. Mosley, by contrast, involved a limitation only on school picketing, a restriction with particular impact on persons interested in publicizing views on school policy. See note 137 infra and accompanying text.

25 1982 Content Discrimination 227 contradiction between the new content neutrality rule it was announcing and the content-oriented jurisprudence of the first amendment. Only Chief Justice Burger, demurring in a concurrence from the Court's broad statement of the rule, cited obscenity, fighting words, and libel cases as evidence that the first amendment quite readily tolerated distinctions based on content. 1 " For the majority, the challenge went unanswered, and the innovation went unexplained. D. Content Neutrality After Mosley: The Search for a Tolerable Rule Although Mosley left much for clarification, subsequent decisions have accomplished little of this task. In CBS, Inc. v. Democratic National Committee, 105 the Court refused to apply Mosley to the television networks' practice of selling time for commercial messages to all comers but restricting political advertising. 1 In Lehman v. City of Shaker Heights, 10 7 four Justices voted to sustain a similar practice in the leasing of advertising space on publicly owned buses because the municipality did not discriminate within the respective categories of commercial and political messages. 108 Four Justices, however, endorsed the proposition that "discrimination...among entire classes of ideas" is as "odious" as discrimination "among points of view within a particular class," 10 9 and the decisive concurring opinion of Justice Douglas did not address the issue. 110 More recently, in First National Bank v. Bellotti 11 and Consoli U.S. at 103 (citing Roth v. United States, 354 U.S. 476 (1957); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). 412 U.S. 94 (1973). '"Although the opinion of the Court is hardly a model of clarity, the apparent holding of the majority was that the editorial judgment of the network constituted a private function unregulated by first amendment access or discrimination considerations. See id. at But cf. CBS, Inc. v. FCC, 101 S. Ct (1981) (Congress may compel access to TV broadcasts on behalf of political candidates). ' 418 U.S. 298 (1974). 'o* Id. at Id. at 316 (Brennan, J., dissenting). 110 Justice Douglas argued that Lehman lacked standing to raise the question of the municipality's treatment of commercial speech, because no one has a "constitutional right to spread his message before this captive audience." Id. at 308 (Douglas, J., concurring in the judgment). " 435 U.S. 765 (1978).

26 Virginia Law Review [Vol. 68:203 dated Edison Co. v. Public Service Commission, the Court invoked the broad language of Mosley in striking down prohibitions limited to the political expressions of corporations " and utilities, 114 respectively. The latter opinion, however, speaks of the first amendment's "hostility" to "prohibition of public discussion of an entire topic," implying that the barrier against content discrimination was high but not insurmountable. 5 In Metromedia, Inc. v. City of San Diego, 18 the plurality opinion of four Justices, including the author of Bellotti and Consolidated Edison, cited Mosley for the considerably more modest statement that "[a]lthough the [government] may distinguish between the relative value of different categories of commercial speech, [it] does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests Whether this restatement reflects retrenchment or only caution in the face of a divided Court remains to be seen. The most extensive effort to date to amplify the meaning of Mosley is Carey v. Brown.' 8 That case involved an Illinois statute that forbade picketing of a private residence but that contained exceptions both for picketing by the resident and for picketing by anyone at residences involved in a labor dispute, used as a place of business, or employed commonly for meetings to discuss matters of public interest. " 9 Several members of the Committee Against Racism, who had picketed the home of the Mayor of Chicago to protest his position on busing, were convicted of violating this statute. They then sought a declaratory judgment that the statute was unconstitutional in light of Mosley. On appeal, the Court found the case "constitutionally indistinguishable" from Mosley U.S. 530 (1980).,3 435 U.S. at U.S. at Id. at 537. I's 101 S. Ct (1981). 117 Id. at U.S. 455 (1980). 19 Id. at 457 (quoting Ill. Rev. Stat. ch. 38, (1977)). The nature of these exceptions was not altogether free from ambiguity, especially as no state court construction of the statute existed. Portions of Justice Brennan's opinion can be read as ignoring the exceptions for residences used for public interest matters and for picketing by the resident. Compare id. at & n.13, with id. at (Rehnquist, J., dissenting). 22 Id. at 460.

27 1982] Content Discrimination 229 For the most part, the discussion in Carey mirrors Mosley. 1 " 1 Although the Court suggested "that certain state interests may be so compelling that where no adequate alternatives exist a contentbased distinction-if narrowly drawn-would be a permissible way of furthering those objectives," it did not find such interests present in the Illinois statute. 122 It dismissed as "dubious" the argument that federal labor law prevented Illinois from implementing a judgment that labor picketing was disruptive It rebutted the contention that all the exceptions to the picketing bans involved instances where residents had waived a legitimate expectation of privacy with the inapposite assertion that public figures such as the mayor had even a lesser right to privacy As in Mosley, the Court made no effort to bring under a common topical heading the views permitted to be expressed under the statute's exceptions and the prohibited speech The absence of any discussion of the constitutionally relevant ties between the favored views and the suppressed speech may have been more significant in Carey than in Mosley, because one has a harder time seeing any common subject matter in Carey. All of the exceptions to Illinois's prohibition of residential picketing involved expression that in some way referred to the use to which One significant difference between the two opinions is the degree to which the Court relied on the equal protection clause as an independent source of constitutional rules concerning content discrimination. The Mosley opinion insisted that the issue was analogous to that present in "all" equal protection cases and stressed the importance of equal protection as a ground for decision. See notes supra and accompanying text. Although the Carey majority quoted the relevant passages in Mosley concerning equal protection, see 447 U.S. at , , in general the Court looked more directly to the first amendment for the source of the underlying right, id. at 460, 462. Justice Stewart, who concurred only in the judgment, explicitly rejected equal protection as a useful analytical tool in this context and declared that the case involved only "the basic meaning of the constitutional protection of free speech." Id. at 471. See Westen, supra note 12, at 562 n.84. More recently, the Court has indicated its acceptance of the notion that equal protection doctrine does not add to the analysis of the protection required by fundamental constitutional rights. See Jones v. Helms, 101 S. Ct. 2434, 2443 (1981) (once statute limiting right to interstate travel is determined not to interfere impermissibly with that right, only rational-basis scrutiny under the equal protection clause will be applied); id. at (White, J., concurring). See also note 161 infra U.S. at 465.,:3 Id. at 466 n Id. at See notes infra and accompanying text.

28 230 Virginia Law Review [Vol. 68:203 the picketed residence was put. 126 The Committee Against Racism, on the other hand, had no concern with what the mayor did in his home and picketed that place only because of the identity of the occupant. It is difficult to see how the expression of the tolerated views would have had any relation to what the Committee wished to communicate to the public. This absence of any readily apparent nexus between the advantaged and burdened views suggests that the Court applied a strong prophylactic antidiscrimination rule, but the opinion does not reveal its boundaries. Also absent from Carey, as from Mosley, is any discussion of the apparent inconsistency between the majority's statement of the content neutrality rule and the Court's own practice of varying the level of first amendment protection according to content. This omission seems most glaring in Carey, a decision delivered the same day the Court handed down one opinion acknowledging the existence of a relationship between content and protection, 12 7 another specifying the significantly lower protection given the content-based category of commercial speech, 12' and a third upholding a form of content discrimination against the category of labor speech." 2 9 The Court made no effort to reconcile this melange of statements and results. Instead, Carey reads as if it existed in an entirely separate universe, independent of the problems and concerns that produced a content-oriented first amendment jurisprudence. In sum, since Mosley the Court has seemed committed to a rule that demands more than viewpoint neutrality of legislation affecting speech. How much more remains an open question. 30 The problem of defining the boundaries of this rule has been exacerbated by the Court's failure either to explain why it was broaden- 12, See 447 U.S. at 474 (Rehnquist, J., dissenting) ("principal determinant" of the right to picket is "the character of the residence sought to be picketed"). 127 Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 n.5 (1980). 2 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, (1980). I NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, 616 (1980) (plurality opinion); id. at (Blackmun, J., concurring in judgment); id. at (Stevens, J., concurring in judgment). 130 In Widner v. Vincent, 102 S. Ct. 269, 277 (1981), the most recent decision to address this matter, the Court declared that its cases "have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of its content." Unfortunately, one still must ask: Scrutiny for what?

29 1982] Content Discrimination ing the rule developed in earlier cases or to reconcile the rule with its own practice of content discrimination in the decision of first amendment cases. To determine what rule the Court should apply, it is necessary to explore the kinds of content discrimination the Court may seek to prohibit and the role each kind plays in an analysis of freedom of expression. HI. FORMS OF CONTENT NEUTRALITY Logic and a close reading of the Court's decisions suggest at least five possible antidiscrimination rules concerning the content of speech. One of these rules has an obvious and important role to play in any first amendment theory. Another just as obviously is antithetical to any conceivable system of free speech. The validity of the remaining three possible rules can be tested by analyzing them in the context of particular cases. A. The Possible Rules If one begins with the assumption that the first amendment recognizes the existence of distinct categories of speech of varying degrees of constitutional significance, then at least five antidiscrimination rules are possible, regardless of the number or content of the categories. A rule of viewpoint neutrality would not allow the government to disadvantage one point of view in relation to another on the same subject if the disadvantaged point of view otherwise would enjoy first amendment protection. This rule would require only what the pre-mosley cases demanded. A rule of hierarchical neutrality would compel the government to treat equally all speech that falls within a particular category of first amendment significance. This rule would rest on the assumption that the boundaries of each hierarchy would embrace all points of view concerning subjects within the hierarchy." 1 It would demand, for example, that a state that permits political campaign speeches in a particular time and place also allow all other expres- 131 It seems self-evident that all points of view on a particular subject should have the same constitutional significance and therefore fall within the same constitutional hierarchy. Execution of this principle in practice involves some difficulties, see notes infra and accompanying text, but the problems involved do not seem qualitatively different from those entailed in the application of any abstract principle to the complexities of the real world.

30 232 Virginia Law Review [Vol. 68:203 sion of equal constitutional significance-calls for structural political change, philosophical discussion, or whatever-to proceed on the same terms. This rule, however, would not require the same treatment for speech that falls in either a more or less protected category. A rule of equal-or-greater neutrality would forbid the government to give any advantage to expression in relation to its treatment of speech of equal or greater first amendment significance. Unlike hierarchical neutrality, this rule would extend the advantage at issue to speech in a different but higher first amendment category. If, for the sake of argument, the first amendment protected the categories of political speech, intellectual speech, and commercial speech in descending order and the government gave a benefit to some subcategory of intellectual speech, equal-or-greater neutrality would compel the government to give a similar benefit to all political and other intellectual speech, but not to commercial speech. A rule of protected-speech neutrality would not let the government disadvantage any speech protected by the first amendment in relation to its treatment of any other expression. It would regard the categorical boundaries employed in other first amendment contexts as irrelevant to the validity of discrimination among kinds of protected speech. Assuming the same hypothetical hierarchy of categories of expression as in the previous paragraph, a protectedspeech neutrality rule would require the government to treat commercial speech on the same terms as it does political campaign speeches. This rule would allow only neutral "time, place, or manner" restrictions on speech otherwise within the ambit of the first amendment." 2 Finally, a rule of absolute content neutrality would forbid any distinction on the basis of the content of speech. It would not let the government recognize a difference between, for example, honest and false tax returns, true and false defamation, or obscene and 12 On the formulation of the "time, place, or manner" doctrine generally, see Heffron v. International Soc'y for Krishna Consciousness, 101 S. Ct. 2559, (1981); Grayned v. City of Rockford, 408 U.S. 104, 116 (1972); Adderley v. Florida, 385 U.S. 39, (1966); Kovacs v. Cooper, 336 U.S. 77, (1949); Cox v. New Hampshire, 312 U.S. 569, (1941); Kalven, supra note 77, at Implicit in this article is a criticism of the traditional formulation of this doctrine to the extent it presupposes a complete prohibition of distinctions based on the content of speech.

31 1982] Content Discrimination 233 nonobscene movies. It would take literally the statement in Mosley that a concern about content is "never permitted.""' With the exception of absolute content neutrality, for which the Court has given only rhetorical support, each of these rules has received the endorsement of one or more Justices as the exclusive standard for assessing discrimination in speech."" As a matter of principle, the arguments for a viewpoint neutrality rule and against absolute content neutrality are simple and straightforward. The validity of either the hierarchical, equal-or-greater, or protected-speech neutrality rules seems more problematic. B. The Obvious Cases: Viewpoint and Absolute Content Neutrality Long before the Court decided Mosley, it had embraced a rule of viewpoint neutrality with respect to legislation affecting speech. " Such a precept seems an essential concomitant of any rational system of freedom of expression. It rests on the realization that speech of constitutional significance suffers indirectly from advantages given to opposing points of view, and that this indirect harm amounts to suppression. Thus, any system that protects speech must insist to the same degree on viewpoint neutrality. 136 It is interesting to note how many of the Court's post-mosley decisions could have reached the same result if they had rested exclusively on a viewpoint neutrality rule. Mosley itself is typical. That case, it will be recalled, involved an ordinance that allowed only labor picketing near schools during class hours. As construed by the Court, the ordinance apparently allowed working teachers to express their views about conditions of employment, but denied access near schools to interested parents, prospective teachers, and others generally interested in school policies. 3 If one makes the U.S. at See, e.g., Metromedia, Inc. v. City of San Diego, 101 S. Ct (1981); notes infra and accompanying text. 135 See notes 50-73, supra and accompanying text. 136 Meiklejohn appreciated this point and incorporated it in his assertion of "equality of status in the field of ideas," A. Meiklejohn, supra note 3, at 27. This phrase was quoted out of context in Mosley. See 408 U.S. at 96 & n.4. As the complete passage reveals, Meiklejohn believed not that all ideas always enjoy equal status, but rather that all ideas regarding a particular subject of public discussion must be accorded the same privileges. 137 At least, this restriction seems implicit in the Court's reading of the exception as lim-

32 234 Virginia Law Review [Vol. 68:203 reasonable assumption that persons who wish to address questions of school policy have the greatest interest in picketing near a school, then those with the strongest interest in opposing teachers on school issues suffered disproportionately under the Mosley ordinance. In particular, the ordinance benefited teachers on questions of employment policy, a matter about which they were especially interested, and discriminated against those who wished to change the school's employment policy to the disadvantage of those teachers. Mosley held exactly this view, if one may construe his rather broad protest as calling for racial integration of the teaching staff. Seen in this light, Mosley's claim of viewpoint discrimination seems at least plausible, if not quite overwhelming. Other cases in which the Court has articulated a broad neutrality rule also can be cast as involving viewpoint discrimination. In City of Madison Joint School District v. Wisconsin Employment Relations Commission,"" 8 the Court struck down an administrative order prohibiting school teachers other than union representatives from addressing board of education meetings about school policy. The Court noted that the order excluded from "public discussion of public business" a class of speakers who were "vitally concerned" with the matter about which they could not speak. 1, 3 In many ways, the discrimination paralleled that in Mosley, with anti-union teachers rather than antiteacher citizens the victims. First National Bank v. Bellotti 1 40 involved a first amendment challenge to a Massachusetts statute forbidding corporations from spending money to influence public referenda on taxation. 141 In ited to "labor picketing." 408 U.S. at 94 n.2 (emphasis in original). Perhaps the exception would have extended to nonworking teachers seeking to organize a school's work force, cf. Carey v. Brown, 447 U.S. at 467 n.12 (1980) (labor speech exemption includes third party labor picketing), but under the Court's interpretation it appears not to have reached persons who simply wished to be hired as teachers U.S. 167 (1976). 138 Id. at 175. The Court also noted that the neutrality rule it applied would not interfere with the power of public bodies to "confine their meetings to specified subject matter." Id. at 175 n U.S. 765 (1978). 141 Mass. Gen. Laws Ann. ch. 55, 8 (West Supp. 1977). The provision forbade corporations from making any expenditures "for the purpose of... influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of [its] property, business, or assets," and specifically excluded questions "solely concerning the taxation of the income, property, or transactions of individuals" from the "materially affecting" exception. For an insightful analysis of this and other issues raised by Bellotti, see

33 1982] Content Discrimination striking down the statute, the Court observed that "the legislature's suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people." 14 In Village of Schaumburg v. Citizens for a Better Environment, 143 the Court held unconstitutional an ordinance forbidding door-to-door solicitation by those charitable organizations that gathered and disseminated information and opinions about issues of public concern, but not by those acting as conduits for contributions. 1 " The majority's opinion is rather murky and does not mention discrimination as such, but its underlying concern may have been the apparent disadvantage the ordinance gave to organizations seeking to promote social change in relation to organizations dispensing more traditional forms of charity Finally, the Court in Consolidated Edison Co. v. Public Service Commission 1 46 invalidated an administrative order forbidding utilities from including in their monthly bills inserts expressing opinions "on controversial issues of public policy. ' 147 Although only Justice Stevens based the decision on this narrow ground, the order limited the right of one distinct group of persons-managers and owners of utilities-to address important public issues, and exactly as did the statute in Bellotti, it suggested an attempt to skew public debate The real issue, then, is not the validity of a viewpoint neutrality BeVier, Justice Powell and the First Amendments "Societal Function": A Preliminary Analysis, 68 Va. L. Rev. 177 (1982) U.S. at U.S. 620 (1980). 144 The ordinance permitted solicitation only by those organizations that submitted "satisfactory proof that at least seventy-five percent of the proceeds of such solicitation will be used directly for the charitable purpose of the organization." Id. at 624 (quoting Schaumburg Village Code 22-20(g) (1975)). As the Court understood this restriction, a "charitable purpose" did not include gathering and disseminating information and ideas about issues of public concern. See id. at Id U.S. 530 (1980) (quoting App. to Juris. Statement at 43). 147 See id. at See id. at 546 (Stevens, J., concurring in the judgment). Another way of bringing the result under an exclusive viewpoint neutrality rule would be to emphasize the rule's limitation to "controversial" issues. The suppression of controversy itself may reflect a systematic bias in favor of support for or tolerance of the status quo. Cf. Metromedia, Inc. v. City of San Diego, 101 S. Ct. 2882, 2915 (1981) (Stevens, J., dissenting) (asking whether the distinction "is a subtle method of regulating the controversial subjects that may be placed on the agenda for public debate").

34 Virginia Law Review [Vol. 68:203 rule, but rather its exclusivity. Among the four possible rules that forbid more than viewpoint discrimination, one seems totally implausible as a rule for constitutional decisions and can be eliminated immediately. A requirement of absolute content neutrality would deny to government the power to distinguish speech falling within the ambit of the first amendment from that without. Despite the hyperbole found in Mosley and other opinions, it seems clear that the Court never has embraced such a rule and never will The problem, then, boils down to the appropriateness of the hierarchical, equal-or-greater, and protected-speech neutrality rules as alternatives to exclusive reliance on the viewpoint neutrality requirement. Rather than discuss this question in the abstract, the article analyzes these three rules through illustrative cases. C. Hierarchical, Equal-or-Greater, and Protected-Speech Neutrality Rules in the Court's Decisions Three cases highlight both the range of rules that the Court has applied and the arguments that support them. In Lehman v. City of Shaker Heights, 150 a divided Court reached a result compatible with hierarchical neutrality, but not with any broader rule. The result in Carey v. Brown 51 is consistent with a rule of hierarchical neutrality, but the Court rather clearly articulated an equal-orgreater rule. In Metromedia, Inc. v. City of San Diego, 52 viewpoint, hierarchical, equal-or-greater, and protected-speech neutrality rules each received the endorsement of one or more Justices as the exclusive standard for judging claims of discrimination. Each case is examined in turn See notes supra and accompanying text U.S. 298 (1974) U.S. 455 (1980) S. Ct (1981). 153 These cases are illustrative, but by no means exhaustive. Other decisions since Mosley have raised speech discrimination issues, but extraneous factors have complicated their analysis. In several cases where the Court has sustained distinctions between political and other speech, the government was able to justify the restriction on the need, arguably of first amendment significance, to limit its own political involvement. See Greer v. Spock, 424 U.S. 828 (1976) (Army regulations may ban political activity on base); Broadrick v. Oklahoma, 413 U.S. 601 (1973) (a state may restrict its civil servants' partisan political activities); Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973) (federal law may ban partisan political activity or political management by federal employ-

35 1982] Content Discrimination 1. The Lehman Case Lehman involved a first amendment challenge to a municipality's refusal to lease advertising space in its buses to a candidate for political office. Shaker Heights prohibited any advertising connected with politics or other public issues, although it otherwise leased space on a first-come, first-served basis. 1 " The Court upheld this restriction, although a majority of the Justices could not agree on the reasons for doing so. If one puts aside the rather unsatisfactory opinions in the case and looks at only the facts and the result, a reasonable basis for the decision may emerge. Harry Lehman, the candidate who sought to lease advertising space, made two arguments. First, he asserted a right of access to the bus walls based on the intrinsic value of that medium to the expression of his message. Second, he ees). Cf. Branti v. Finkel, 445 U.S. 507 (1980) (federal government may not discharge federal legal aid employees because of their political party affiliations); Elrod v. Burns, 427 U.S. 347 (1976) (a state may not discharge sheriff's deputies because of their political party affiliations). In other cases, the Court has displayed uncertainty as to whether restrictions on the expenditure of money constitutes suppression of expression. Compare California Medical Ass'n v. FEC, 101 S. Ct (1981) (federal law may limit political contributions) and Buckley v. Valeo, 424 U.S. 1 (1976) (same), with Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 102 S. Ct. 434 (1981) (municipal ordinance limiting contributions to communities supporting or opposing local ballot initiatives violated the first amendment). Cf. Wright, Politics and the Constitution: Is Money Speech? 85 Yale L.J (1976) (answering the question in the negative). The Court has sustained what can be described only as limited viewpoint discrimination against "indecent" speech, apparently because of uncertainty as to what first amendment interests, if any, are implicated by this particular form of expression. Compare FCC v. Pacifica Found., 438 U.S. 726 (1978) (the FCC may prohibit profanity during daytime radio broadcasts), and Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (movie theatres featuring explicit sex may be subjected to special zoning requirements), with Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (an ordinance may not prohibit drive-in theaters from showing movies containing nudity that are visible from street). In one case, the Court's content discrimination analysis appears to have served as a substitute for resolution of free exercise and establishment clause questions. See Widmar v. Vincent, 102 S. Ct. 269 (1981). Finally, implicit in the Court's recognition of a lower constitutional status for commercial speech has been a willingness to tolerate government choices among the economic interests implicated by such speech. See notes infra and accompanying text. This tolerance may explain the Court's willingness to sustain discriminatory regulation affecting the entirely commercial aspects of labor speech. See NLRB v. Retail Store Employees Local 1001, 447 U.S. 607 (1980) (prohibition limited to secondary boycott communications is constitutional); American Radio Ass'n v. Mobile S.S. Ass'n, 419 U.S. 213 (1974) (prohibition limited to advocacy of strikes is constitutional). Cf. NLRB v. Gissell Packing Co., 395 U.S. 575, (1969) (labor relations do not implicate the first amendment to the same degree as political debate). I5 See 418 U.S. at

36 238 Virginia Law Review [Vol. 68:203 claimed discrimination by the City based on the access it gave to persons with other messages. For each of these claims, it mattered that Shaker Heights let others use bus advertising, but it mattered for different reasons. With respect to Lehman's access claim, one of his strongest arguments was that Shaker Heights belied whatever reason it had for limiting access by letting others speak through the medium of bus advertising. The access allowed to others is an important consideration in balancing the incremental benefit from Lehman's expression against the incremental cost to the City of providing access, because it helps indicate the value of the City's asserted regulatory aims. 155 A reasonable judge might still decide, as perhaps did the Lehman plurality, 1 5 that the gain to expression from bus advertising would be too slight to outweigh even a heavily discounted governmental interest. The dissent, however, reached a different conclusion In any event, the correct resolution of the access problem falls outside the scope of this article. With respect to Lehman's discrimination claim, the access enjoyed by others would be significant only if the permitted speech in some way reduced the impact of his own message. Given the breadth of the City's ban, establishing such harm probably would be impossible. Lehman wished to promote his candidacy, a matter 155 A nonexhaustive list of the factors one might consider in weighing a particular speaker's claim to speak in a particular place might include the following: 1) the relationship of the place to the speech and the degree its use will enhance the impact of the speech; 2) the general constitutional significance of the speech; 3) the traditional availability of similar places to similar speech; 4) the availability of alternative channels for the speech; 5) the ease with which use of the place can be rationed to limit the costs associated with access; 6) the overall costs of access; 7) the government's noncost justifications for limiting access; and, 8) the availability of the particular place to other speakers. This last factor might justify the result discussed in the text. The seminal discussion of access questions is found in Kalven, supra note 77. See also Cass, First Amendment Access to Government Facilities, 65 Va. L. Rev (1979); Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233., See 418 U.S. at 304. See id. at (Brennan, J., dissenting). Although the dissent recognized the legitimacy of balancing, id. at 312, it found that no balancing was necessary in this case because the City had waived any argument against letting Lehman buy space by providing access to commercial advertisers, id. at 314.

37 19821 Content Discrimination of public importance. By contrast, none of the sanctioned bus advertising addressed any public issue at all. Although Lehman himself could not show that he had suffered any harm, the question remains whether the City's policy resulted in viewpoint discrimination in other instances. The dissent implied that the line drawn by the City violated viewpoint neutrality inasmuch as merchants could hawk their wares, but those who opposed these goods on ideological grounds could not advertise their convictions. "For instance, a commercial advertisement peddling snowmobiles would be accepted, while a counter-advertisement calling upon the public to support legislation controlling the environmental destruction and noise pollution caused by snowmobiles would be rejected. ' 158 The point suggests that recognition of a distinction between commercial and noncommercial speech can result in viewpoint discrimination and, more generally, that any attempt to distinguish among categories of protected speech has the potential to engender discrimination. On balance, the point seems forced. The competition between prohibited and allowed messages suggested by the dissent's hypothetical rests on a perception of an implicit message in the snowmobile advertisement, not on its express content. One might as well argue that any commercial advertising constitutes an implicit endorsement of capitalism and therefore competes with exposition of the Marxist critique of bourgeois political economy. Although these implications may create certain tensions between speech falling into different categories of expression, the clear differences between these kinds of speech seem far more significant. Commercial advertising, in terms of the Court's own definition of this category of expression, looks only to induce a private relationship between a buyer and a seller and presupposes the larger social background in which the solicited relationship will exist. 15 This tacit assumption that the status quo will endure hardly amounts to political advocacy, or indeed to advocacy of any sort. Its expression does not seem a substantial threat to any focused commentary on public issues. More generally, although a sensitive 168 Id. at See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).

38 240 Virginia Law Review [Vol. 68:203 ear might detect undertones in almost all speech that would defeat any kind of categorical distinction, it seems possible to devise categories that comprise all points of view among which significant competition exists. 160 If one accepts the conclusion that a distinction between political and other speech does not produce any appreciable viewpoint discrimination, then the refusal of Shaker Heights to allow discussion of public issues through bus advertising conformed to viewpoint neutrality. If one also accepts the validity of the Court's frequent endorsements of the unique significance of political speech, then the City's definition of forbidden advertising obviously preserved hierarchical neutrality as well. The City's definition of what speech it would not permit in advertisements apparently was identical to the Court's definition of political speech, and the City clearly treated alike all speech in that category. It is equally clear that the City's restriction violated both the equal-or-greater and protected-speech neutrality rules. At least under the Court's current first amendment jurisprudence, the constitutional value of Lehman's speech was considerably greater than that of the commercial advertising the City permitted. Additionally, under any mainstream first amendment theory, pronouncements of a politician regarding his candidacy enjoy constitutional protection. As a result, either the equal-or-greater or the protected-speech neutrality rule would entitle Lehman to the advantages Shaker Heights granted commercial advertising. The reasons for not adopting either the equal-or-greater or protected-speech rule as the solution to the discrimination problem seem evident. Whatever role they might play in resolving whether access to a particular channel of expression is appropriate, these rules go far beyond what is necessary to obviate the dangers of discrimination. They require equal treatment not only of categories of speech that the Court regards as constitutionally equivalent, 160 The remarks of Professor Bork, although made in another context, are relevant here: Any theory of the first amendment that does not accord absolute protection for all verbal expression, which is to say any theory worth discussing, will require that a spectrum be cut and the location of the cut will always be, arguably, arbitrary. The question is whether the general location of the cut is justified. The existence of close cases is not a reason to refuse to draw a line and so deny majorities the power to govern in areas where their power is legitimate. Bork, supra note 14, at 28.

39 1982] Content Discrimination but also of other categories that the Court itself considers distinguishable for purposes of determining the degree of constitutional protection. 161 Whatever it merits as an access decision, Lehman reached the right result on the question of discrimination. By upholding Shaker Heights's distinction between permitted and forbidden bus advertisements, the Court merely reaffirmed its own pronouncements that political speech stands on a separate footing from other forms of expression. The fact that political speech enjoys special protection under the first amendment but suffers special burdens under the City's rules may impeach the wisdom of the Court's access holding, but it in no way undermines its discrimination result. 2. The Carey Case Although this article already has said much about Carey, a few additional observations are in order. Unlike in Lehman, a majority of the Court was able to agree on an opinion, but much of what was agreed on seems especially vulnerable to criticism. As Justice Rehnquist pointed out in his dissent, the majority opinion analyzes the Illinois statute as if it had contained an exception only for labor speech. 16 s This failure to acknowledge the significant differences between Carey and Mosley obscures the basis of the majority's holding. Portions of the opinion nonetheless deserve careful attention. A critical point in the Court's argument concerns the legitimacy of the State's attempt to provide special protection for labor protests. The majority did not argue that this purpose could not justify the other exceptions to the statute's picketing prohibition, perhaps because this response would have admitted how different the 11 This last point also illustrates the inappositeness of the equal protection rhetoric that the Court used in Mosley. The equal protection principle that "like be treated alike" cannot apply to speech if for first amendment purposes we must regard the content of speech as irrelevant. Unlike voting, where the Constitution regards each vote and each political candidate as having equal merit and therefore demands similar treatment of each by government, see Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979); Williams v. Rhodes, 393 U.S. 23 (1968); Baker v. Carr, 369 U.S. 186 (1962); J. Ely, supra note 14, at , a system of freedom of expression demands that government recognize the superior value of certain kinds of speech. See notes supra and accompanying text. 142 See notes supra and accompanying text. 13 See note 119 supra and accompanying text.

40 242 Virginia Law Review [Vol. 68:203 Illinois statute was from the ordinance involved in Mosley.,, Instead, the Court accepted the asserted purpose as valid, but held that such a purpose could not outweigh the first amendment values implicated by the prohibited speech. According to the Court, the labor justification "forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which [members of the Committee Against Racism] wish to demonstrate." 16 5 The Court rejected this presupposition, noting that "[p]ublic issue picketing... has always rested on the highest rung of the hierarchy of First Amendment values."" At this point, the Court clearly was contending for equal-orgreater neutrality, but its justification for doing so had little to do with discrimination. As in Lehman, one must separate the access and discrimination issues. With respect to access, one properly can balance the government's interests in limiting access against both the Committee's assertion that picketing in front of the mayor's home would substantially augment the impact of its message" 6 7 and the State's willingness to allow picketing of far less constitutional significance at this site. 6 8 These considerations, along with others such as the traditional resort to street picketing by protest movements, the availability of legitimate scheduling devices to limit the disruption caused by such picketing, and the overall importance of the speech at issue, very well might lead to a conclusion that the Committee Against Racism should enjoy a reasonable right of access to the mayor's doorstep. This right of access, however, would be related only indirectly to the access enjoyed by others, and indeed might exist even if no other residential picketing were allowed." 6 " In particular, the majority would have had to explain why a distinction between speech related to the function of the residence and all other speech would have raised a constitutional problem. See note 116 supra and accompanying text. Instead, it posed several examples to illustrate the alleged underinclusiveness of the statute's exceptions, each of which, however, seemed in fact to fall within one of them. See 447 U.S. at 468 n.13, 469. : U.S. at Id. at Id. at 469 n See note 155 supra and accompanying text. 169 One presumably would not allow an access right to depend only on the availability of the particular place to other speakers both because of the general relevance of other factors,

41 19821 Content Discrimination As an access case, then, Carey seems completely defensible. The equal-or-greater neutrality rule that the Court seemed to apply may constitute a practical tool for resolving the issue of access to traditional channels of political expression. The discrimination principle on which the rule rests, however, is distinct from the access issue. The problem with Carey is that the Court obscured this distinction. It purported to address the question of discrimination generally and laid down a rule that by its terms applies to cases where access problems do not exist. As argued above, resort to an equal-or-greater rule of this scope seems contrary to logic and at odds with those Court decisions that recognize separate categories of speech that enjoy different degrees of constitutional protection. 170 The question remains whether the Carey majority could have reached its result by relying solely on a viewpoint or hierarchical neutrality rule. Unlike Mosley, where at least a case can be made for the existence of viewpoint discrimination, no aspect of the tolerated residential picketing seems competitive with the prohibited speech. Nor is it clear that the exceptions to the Illinois statute violated hierarchical neutrality. As the Court interpreted the statute, each of the exceptions related to private commercial disputes rather than to political questions, and the Committee Against Racism's speech, as the Court noted, occupied the highest rung in the first amendment hierarchy In sum, Carey seems best understood as a right-of-access case masquerading as a discrimination decision. As an access decision, the opinion can be faulted for its failure to reveal its reasoning and its limits, but not necessarily for its result. One cannot tell whether see note 143 supra, and because it seems somewhat unsatisfactory to allow an access right to rest on a decision that the government remains free to reverse. This last point was used by commentators to criticize Mosley's apparent reliance on a discrimination rather than an access rationale. See Note, The Public Forum: Minimum Access, Equal Access, and the First Amendment, 28 Stan. L. Rev. 117, 141 n.157 (1975); Note, Equal but Inadequate Protection: A Look at Mosley and Grayned, 8 Harv. Civ. Rights-C.R.-C.L. L. Rev. 469 (1973). See also Westen, supra note 12, at See notes supra and accompanying text. M The statute's exception for picketing "the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest," 447 U.S. at 457 (quoting Ill. Rev. Stat. ch. 38, (1977)), on its face would allow some political speech. The majority, however, analyzed the statute as if this exception did not exist. See, e.g., id. at 469 (statute would not allow picketing of residence used by county chairman to meet with district captains for discussion of controversial issues).

42 244 Virginia Law Review [Vol. 68:203 the decision applies only to mayors' residences and only with respect to political speech, or whether the Court intended a broader access right, but later cases can address these issues. As a discrimination decision independent of the access issue, however, Carey seems indefensible. 3. The Metromedia Case Perhaps not surprisingly, the most recent of the Court's major content-discrimination cases is its most confused. Metromedia, Inc. v. City of San Diego 17 2 presented a first amendment challenge to a San Diego ordinance that regulated outdoor advertising displays. Different restrictions applied depending on whether the message of the sign related to the premises on which it was located. "Off-site" billboard displays were forbidden except for holiday decorations, public service signs limited to conveying the time, temperature, and news, and temporary political campaign signs "On-site" signs were allowed to advertise goods or services manufactured or sold on the premises, or to contain religious or historical identification. 174 Seven of the Justices agreed that San Diego could prohibit all off-site commercial advertising in spite of its tolerance of on-site advertising. Four of these seven, plus Justices Brennan and Blackmun, nevertheless regarded the ordinance as unconstitutional, but their reasons differed significantly. Chief Justice Burger, Justice Rehnquist, and Justice Stevens would have upheld the ordinance on its face, although Justice Stevens suggested that a constitutional problem might emerge in the application of the ordinance. Not only did the Justices disagree as to outcome, but they could S. Ct (1981). 13 Id. at 2885 n.1, 2886 & n.3 (quoting San Diego Ordinance No ). See id. at 2916 n.25 (Stevens, J., dissenting) (noting exceptions eliminated from ordinance by state court construction). Although none of the opinions made this point, the exception for political campaign signs also may have been excised from the ordinance through judicial construction. The California Supreme Court limited application of the ordinance to signs "permanently" attached to the ground or some structure. Metromedia, Inc. v. San Diego, 26 Cal. 3d 848, 856 n.2, 164 Cal. Rptr. 510, 513 n.2, 610 P.2d 407, 410 n.2 (1980). The political sign exception, by contrast, applied only to "temporary" signs that were "erected or maintained for no longer than 90 days." San Diego Ordinance No , (F)(12). One could construe the ordinance, however, as applying to displays temporarily maintained on permanent billboards. 174 See 101 S. Ct. at 2885 n.1, 2886 & n.3.

43 19821 Content Discrimination not reach a consensus even as to the issue presented by the case. For Justices Brennan and Blackmun, the case in "practical effect" involved a total ban on billboard advertising, and as such, they would have found the ordinance invalid Chief Justice Burger and Justices Rehnquist and Stevens agreed that the question of a total ban was before the Court, but they would have upheld the restriction. 176 Justices Stewart, White, Marshall, and Powell refused to reach the total ban issue and relied exclusively on the ordinance's content discrimination to invalidate it. 1 " Finding order in this melange of conflicting perspectives and opinions seems almost a Sisyphean task. Perhaps the most fascinating aspect of the case, however, is precisely the variety of discrimination rules propounded by one or more Justices. By tracing through each of these rules as it was developed in the case, one may obtain a better understanding of this complex decision. a. The Dissenters: Viewpoint Neutrality as the Exclusive Test The narrowest discrimination rule was that advanced by Justice Stevens and implicitly adopted by Chief Justice Burger and Justice Rehnquist Justice Stevens approached the case differently from his Brethren by asserting that the plaintiffs-billboard companies-lacked standing to attack the restrictions imposed on onsite advertising displays.m For him, the case involved only a sweeping ban on billboard advertising with a few narrow exceptions. He began by asking whether complete elimination of this channel of expression would violate the first amendment. After concluding that it would not, for reasons that fall outside the scope of this article, 1 80 he then examined the exceptions. He found only the limited tolerance of political campaign advertising troubling. 175 Id. at 2901 (opinion concurring in the judgment) (emphasis in original). 176 Id. at 2910 (Stevens, J., dissenting); id. at 2918 (Burger, C.J., dissenting); id. at (Rehnquist, J., dissenting). 1 Id. at 2896 n.20 (plurality opinion). 178 Id. at (Stevens, J., dissenting). See id. at (Burger, C.J., dissenting) ("San Diego has not attempted to suppress any particular point of view or any category of messages."); id. at (Rehnquist, J., dissenting). 179 Id. at (Stevens, J., dissenting). "'0 Justice Stevens based his access decision on the legitimacy of the government's economic and aesthetic interests and the adequacy of the overall communication market in the vicinity. Id.

44 246 Virginia Law Review [Vol. 68:203 He observed that "if there were reason to believe that billboards were especially useful to one political party or candidate, this exception would be suspect." 181 Because no evidence of such hidden favoritism existed, and because, for him, only viewpoint discrimination presented a constitutional problem, Justice Stevens would have sustained the ordinance. 182 b. The Plurality: Equal-or-Greater and Hierarchical Neutrality The plurality opinion of Justice White, joined in its entirety by Justices Stewart, Marshall, and Powell, 83 is the most convoluted of the five opinions in the case. The plurality employed a different analysis than did Justice Stevens and relied on alternate holdings that suggested three different discrimination rules. Rather than distinguish billboards from on-site signs, the plurality regarded all outdoor display signs as fungible. It first sustained the ordinance's distinction between commercial advertising relating to the premises and other commercial speech. After determining that a complete ban of commercial advertising would not violate the Constitution, the plurality reasoned that "[i]t does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. ' On its face, this argument permits the government to favor one form of commercial speech over its competitors. The plurality apparently would tolerate even viewpoint discrimination if it were limited to commercial speech. This position, although inconsistent with general first amendment principles, is defensible to the extent it reflects a convergence of the constitutional protection given commercial speech and that provided other economic interests subject to 181 Id. at Because of his standing determination, Justice Stevens did not reach the question whether the restrictions of on-site signs were constitutional. 182 Id. Justice Stevens has developed his position on viewpoint discrimination in several cases. See Widmar v. Vincent, 102 S. Ct. 269, (1981) (Stevens, J., concurring in the judgment); NLRB v. Retail Store Employees Local 1001, 447 U.S. 607, (1980) (Stevens, J., concurring in the judgment); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, (1980) (Stevens, J., concurring in the judgment); FCC v. Pacifica Found., 438 U.S. 726, (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50, (1976). 183 Justice Stevens also joined those portions of the plurality's opinion that upheld the ordinance's distinctions among kinds of commercial speech S. Ct. at 2895.

45 1982] Content Discrimination 247 governmental regulation The plurality next examined the distinctions drawn by the ordinance among various forms of noncommercial speech and between commercial and noncommercial speech and found two reasons for finding these distinctions unconstitutional. It first noted that the City did tolerate some commercial speech on fixed display signs by permitting on-site advertising. It then held that "the city may not conclude the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages." 18 Its reasoning constitutes a variant of the equal-or-greater rule: although the government may discriminate relentlessly among commercial messages, the tolerance of any commercial speech requires similar treatment of all speech of superior value. The plurality also observed that the ordinance permitted religious symbols, commemorative plaques, signs conveying the time, temperature, and news, and temporary political campaign signs, but allowed no other "noncommercial or ideological" messages.187 These distinctions represented another form of impermissible discrimination: "Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones." 188 The rule appears to be one of hierarchical neutrality for the category of "noncommercial" speech For the reasons already discussed in this article, the plurality's choice of an equal-or-greater neutrality rule seems questionable. 190 As in Carey, the plurality may have attempted to reach an access 165 For a persuasive argument that commercial speech should receive no greater protection than any other form of commercial activity, see Jackson & Jeffries, supra note 22. See also Baker, supra note 34; Burger Court, supra note 29, at But see Redish, The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression, 39 Geo. Wash. L. Rev. 429 (1971). :8 101 S. Ct. at Id. at I" Id. 169 Justice White, the author of the Metromedia plurality opinion, has been the most reluctant of the Justices to accept unique protection for the category of political speech. See note 39 supra. 190 See notes supra and accompanying text.

46 Virginia Law Review [Vol. 68:203 result through a rule couched in terms of discrimination. 191 Although privately owned, billboards are a useful channel of expression, and an attempt to eliminate them raises some of the same problems as does restriction of more traditional channels. Some support for the hypothesis that the plurality really was grappling with an access issue comes from its treatment of Lehman, which it distinguished as a "unique" fact situation involving a "government-created" forum. 192 The nature of the forum, however, suggests a significant problem lurking in the plurality's opinion. Because billboards are not "government-created" but rather lie in private hands, the question of access to billboards is considerably more complex than the question of access to streets and other government-controlled fora. Unless the Court intended to enforce access rights onto private property, a course it generally has avoided, 193 any access claim it might have entertained would have been qualified by the retained right of the private owners to refuse to sell advertising space. The inability or disinclination of the courts to control the terms of access, in turn, undercuts the argument for judicial abrogation of governmental restrictions. By substituting discrimination rhetoric for access analysis, the plurality may have overlooked the difficulty of the access question and may have reached a result it could not have supported if it had asked the right questions. The plurality's requirement of hierarchical neutrality, by contrast, seems defensible, but problematic. At the least, the differential treatment of campaign advertising and other discussion of public issues presented a discrimination issue different from that in Lehman. Unlike Shaker Heights, San Diego treated some political points of view differently from others. It gave electoral candidates an advantage in relation to others seeking to promote more fundamental political or social changes. Although the Court had no evidence that such discrimination actually occurred, the risk of poll" See id S. Ct. at 2896 n See Hudgens v. NLRB, 424 U.S. 507 (1976). A channel of communication in private hands differs significantly from one in the public domain, especially with respect to the government's ability to ration access. See note 155 supra. The Court generally has rejected first amendment claims of access to private property in cases where the owner opposed them. As a result, monitoring private owners' decisions as to who may use billboards, and for what purposes, would be exceedingly difficult.

47 19821 Content Discrimination 249 tential discrimination may have provided a sufficient reason to invalidate the distinction. Viewed from this perspective, the effects of viewpoint and hierarchical neutrality rules tend to converge. A viewpoint rule demands equality of treatment of all speech that can be seen as competitive. A hierarchical rule makes the same demand, but in addition assumes that all speech within a particular hierarchy is mutually competitive. In the context of overbreadth challenges, where the party attacking a statute need not have suffered from intolerable discrimination himself, 194 the practical effect of the two rules may be identical due to the cognizability of hypothetical harms. On the other hand, the more cautious posture adopted by Justice Stevens is not without merit. Legitimate reasons can exist for distinguishing speech of similar constitutional significance but addressed to different subjects. Systematic, organized political debate cannot proceed without an agenda and a requirement that speakers stick to the topic Imposition of such rules does not necessarily suggest a government attempt to rig public debate. Room should remain for inquiry into the neutrality of the government's reasons for imposing particular topical restrictions in light of the restrictions' potential for creating viewpoint discrimination and alternate opportunities for expression about the restricted topics. 1 9 c. The Concurrence: Protected-Speech Neutrality Justice Brennan, in an opinion joined by Justice Blackmun, agreed with the plurality's conclusion that San Diego's ordinance violated the first amendment. In most respects, however, his position was further from that of the plurality than the plurality's was from the dissenters'. Like the dissenters, Justice Brennan believed the ordinance for all practical purposes constituted a complete prohibition of billboard advertising, but he reached the opposite 19 See, e.g., Gooding v. Wilson, 405 U.S. 518, (1972); Coates v. Cincinnati, 402 U.S. 611, 616 (1971); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). 115 See A. Meiklejohn, supra note 3, at "' See Metromedia, 101 S. Ct. at 2915 (Stevens, J., dissenting); Madison School Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 175 n.8 (1976). Cf. Democratic Party of United States v. Wisconsin, 450 U.S. 107, (1981) (Powell, J., dissenting) (suggesting mainstream and splinter political parties enjoy different constitutional status for purposes of state regulation of their activities).

48 250 Virginia Law Review [Vol. 68:203 conclusion as to its constitutionality. 97 As with the dissenters, the merits of Justice Brennan's resolution of this access issue fall outside the scope of this article. Justice Brennan went on to address the Court's premise that a ban on only commercial billboard advertising would pass constitutional muster. Although he conceded that the Court's decisions had recognized a distinction between commercial and noncommercial speech, he insisted that the plurality had erred "in assuming that a governmental unit may be put in the position in the first instance of deciding whether the proposed speech is commercial or noncommercial." 1 " 8 In his view, application of this standard would invite the same unacceptable discrimination as the standardless permit cases had sought to prohibit. 199 In the terminology of this article, Justice Brennan advocated a rule of protected-speech neutrality. The arguments he employed in Metromedia suggest exactly why this rule is an implausible solution to the discrimination problem. There is no readily apparent reason why courts are better qualified than other governmental bodies to distinguish commercial from noncommercial speech, especially given the relatively clear functional standard on which the Court has based the distinction. 20 Justice Brennan's assertion that the line is so vague as to invite unfettered discretion, if true, would imply a disturbing observation about the Court's own decisionmaking. This may be precisely what Justice Brennan intended, however. One suspects that the root of Justice Brennan's objection may be not a concern about the inability of nonjudicial officials to distinguish between commercial and noncommercial speech, but rather resistance to the use of the distinction in the Court's own first amendment analysis S. Ct. at (Brennan, J., concurring in the judgment). Justice Brennan did not discuss the problem of controlling access decisions by private owners discussed in note 193 supra. He would not have allowed any ban on billboards except as part of a comprehensive and entrenched beautification plan. 198 Id. at 2907 (emphasis in original). 1 0 Id. at See notes supra and accompanying text. 2oo See, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561 (1980) ("The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience."). 201 Justice Brennan expressed just such resistance in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 572 (1980) (Brennan, J., concurring in the judgment) (rejecting majority's distinction between commercial and noncommercial speech).

49 1982] Content Discrimination V. CONCLUSION A close reading of the Court's decisions suggests that only rarely has it departed from an exclusive rule of viewpoint neutrality, and then usually it has done so to avoid a difficult access question. To the extent the Court has disguised access questions as discrimination problems, it has both confused analysis of the access problem and suggested the existence of unacceptably broad antidiscrimination rules. Nowhere is this confusion and the potential for misleading signals more evident than in Metromedia. A careful examination of the problem of content discrimination in light of traditional first amendment jurisprudence indicates that the Court has said far more than it has meant when it has proclaimed the impermissibility of distinctions based on the content of speech. To the contrary, distinguishing speech according to its content is the only intelligible way to commence any first amendment analysis. The distinctions will vary with the substantive values one believes underlie the amendment, but the necessity of these distinctions will not. The pattern of the Court's decisions over the last decade displays considerable sensitivity to differences in the content of speech. What the Court has not done yet is to identify the wellsprings of its concerns about content and particularly their relationship to the problem of discrimination. Until it does, the Court is likely to trip over its own rhetoric and to sow confusion elsewhere.