Document Type

Article

Publication Title

University of Illinois Law Review

Volume

2025

Publication Date

2025

Abstract

Whether a law affecting free speech does so in a content-based or content-neutral way is usually the first step in analyzing the law’s constitutionality.  But the Supreme Court has not had an easy time sorting statutes as content based or content neutral, and it has similarly struggled in sorting and explaining the difference between content-neutral laws that incidentally affect expression (O’Brien laws) and content-neutral laws that regulate the time, place, or manner of expression (TPM laws).  Scholarship on content-neutral restrictions has nibbled around the edges of these difficulties but has yet to comprehensively analyze the doctrine.  This Article provides a detailed yet simplified approach to doctrinal problems involving content-neutral restrictions.  It is the first law review article in the last few generations to provide a comprehensive examination of the Court’s content-neutral speech cases.

First, the Article drills down on the distinction between O’Brien and TPM laws, taking a fresh look at the case law, pushing back on the Court’s claim that the two types of content-neutral restriction pose essentially the same type of problem and thus that the Court should analyze the two in the same way.  Second, the Article examines the antecedent question, when is a law content neutral as opposed to content based?  The Court sometimes twists itself into knots explaining why a law that requires officials to evaluate speech content is content neutral.  We can best understand this as an effort to ward off the strict scrutiny the Court has said must apply to content-based laws.  The Article urges the Court to adopt a more accurate and inclusive view of what counts as a content-based law and a more supple understanding of when content-based laws should receive strict scrutiny and when they should not."

Download

Included in

Law Commons

Share

COinS