First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has recognized that the “ First Amendment protects speech and speaker, and the ideas that flow from each.” 1 While “a differential burden on speakers is insufficient by itself to raise First Amendment concerns,” 2 laws that are “designed or intended to suppress or restrict the expression of specific speakers” because of their ideas violate the First Amendment.3 In terms of First Amendment analysis, this means that, unlike laws that regulate speech based on subject matter, topic, or viewpoint, laws that distinguish among different speakers are not necessarily deemed content based or presumptively unconstitutional. For example, a regulation distinguishing between cable operators and broadcasters, the Court observed in a 1994 case, differentiated among “speakers in the television programming market” based on “the manner in which [they] transmit their messages to viewers” rather than their content.4 The Court explained that such distinctions are “not presumed invalid” as long as they are not “a subtle means of exercising a content preference.” 5

Speaker-based distinctions can, however, invite heightened scrutiny in some circumstances. As previously noted, speaker-based distinctions raise the specter of content-based discrimination. The Supreme Court has observed that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content.” 6 The law in Sorrell v. IMS Health, Inc., for example, prohibited pharmaceutical companies from using pharmacy records revealing physicians’ individual prescribing practices for marketing purposes without the prescribers’ consent.7 The law did not prohibit other entities from using the records for non-marketing purposes, thus allowing, for example, educational institutions to use the regulated records for research purposes.8 The Court observed that in addition to imposing content-based restrictions on how the information was used, the law targeted pharmaceutical companies for disfavored treatment, which contributed to the content-based nature of the law.9

Even apart from a desire to control the content of speech, the government may violate the First Amendment if it singles out “disfavored speakers” for speech restrictions.10 In Citizens United v. FEC, for example, the Court held that Congress may not prohibit political speech in the form of independent expenditures because of a speaker’s corporate identity.11

Thus, speech restrictions that apply to some speakers but not others may trigger heightened scrutiny, especially where the law contains other, facial distinctions based on the message conveyed, or reflects a content-discriminatory purpose.12

Footnotes

1

Citizens United v. FEC, 558 U.S. 310, 341 (2010).

2

Leathers v. Medlock, 499 U.S. 439, 452 (1991).

3

United States v. Playboy Ent. Grp., 529 U.S. 803, 812 (2000).

4

Turner Broad. Sys. v. FCC, 512 U.S. 622, 645 (1994).

5

Id.

6

Citizens United, 558 U.S. at 340.

7

Sorrell v. IMS Health Inc., 564 U.S. 552, 559 (2011). For additional discussion of Sorrell, see Amdt1.7.3.4 Laws Regulating Speech with a Content-Discriminatory Purpose.

8

Sorrell, 564 U.S. at 563, 573.

9

Id. at 564. For a discussion of the components of the law that the Court deemed viewpoint discriminatory, see Amdt1.7.4.3 Viewpoint Discrimination in Facially Neutral Laws.

10

Citizens United v. FEC, 558 U.S. 310, 341 (2010).

11

Id. at 341–65. See Amdt1.7.11.3 Campaign Finance Expenditure Limits.

12

In FCC v. League of Women Voters, the Court struck down a law banning noncommercial educational broadcasting stations that received federal funds from “editorializing.” 468 U.S. 364, 402 (1984). In explaining its application of heightened scrutiny, the Court observed that the law “single[d] out noncommercial broadcasters and denie[d] them the right to address their chosen audience on matters of public importance,” which suggested that Congress sought “to limit discussion of controversial topics and thus to shape the agenda for public debate.” Id. at 384. For additional discussion of League of Women Voters, see Amdt1.7.13.5 Restrictions on Editorializing.