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First Amendment for College Administrators

Lesson 3: Public Forums and Your Campus

Video 3: Content-based and Viewpoint-based discrimination

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Video Transcript

What does it mean for a regulation of speech to be content based? What does it mean for a regulation to be viewpoint based? Let’s start with what we’ve already learned: If your school prohibits students from posting flyers on the walls of, say, the Natural Science building, that’s content neutral - no matter what the flyers says, students just aren’t allowed to post there. But if you only prohibit students from posting, for instance, political flyers on those walls – well, then, whether students are allowed to post or not depends on the topic the flyers discuss. That’s a content-based regulation. Now here’s another wrinkle: If you permit political flyers, but only from one party, that’s viewpoint-based discrimination.

As we touched on in the last video, instead of just policing when, where, or how people speak on campus, content-based restrictions tell people they can or cannot speak based on what, exactly, they’re talking about. While public colleges and universities may have a lot of leeway to impose time, place, and manner restrictions on speech, schools’ power to regulate speech wanes significantly when their regulations depend on the content of speech. And, as I’ll explain in a bit, schools have no power at all to restrict expression based solely on a speaker’s viewpoint.

The Supreme Court has held that a regulation of speech is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” From 2015 until just recently, the Court gifted us with a simple method for discerning content-based regulations, from a case that also served as a helpful mnemonic device: Reed v. Town of Gilbert. In Reed, the court held that if you have read a sign to enforce a regulation, that regulation is content based. 

That’s still a pretty good rule of thumb, and will be helpful to you in most cases. In Reed, a pastor challenged town sign regulations that applied differently depending on whether a sign’s message was ideological, political or directional. The Court held that these distinctions, which depended on the message signs conveyed, rendered the regulations content-based. Since Reed, the Court has added a little bit of nuance: Now, if the only reason you’re reading the sign is to determine whether it’s about the place it’s posted on (to make an on-premise/off-premise distinction), that, per the Court, is more like a an “ordinary time, place, or manner restriction.” But, in general, if you find yourself policing the idea speech conveys, you’re engaging in content-based discrimination.

Now let’s get into what that means for each type of forum on your campus. A quick review: traditional public forums on government property are open to free speech because they historically always have been; designated public forums are open to free speech because the government made it so; and limited public forums are opened by the government to only some categories or speech or speaker.

In a traditional or designated public forum, a content-based regulation on speech must survive what the courts call strict scrutiny. To pass the strict scrutiny test, the government must first show that the restriction is necessary to serve a compelling state interest. As we touched on in the last video, a “compelling” interest is a higher bar for the government to meet than the “significant” interest required for content-neutral time-place manner restrictions. The Supreme Court, for example, has held that crowd control is a significant interest; and that traffic safety is a compelling interest, while mere aesthetics is not. 

In addition to demonstrating a compelling interest, the government must also show that the regulation is narrowly tailored, similarly to the way they must show narrow tailoring for the time, place or manner restrictions we discussed in the last video. The difference here is, just as “compelling” interest is a higher bar for the government than a “significant” one, the government’s burden to narrowly tailor is also higher when regulating speech based on content. So, while time, place, and manner restrictions need only not burden “substantially more speech than necessary,” content-based restrictions must use the “least restrictive means” to further the government’s compelling interest. Strict scrutiny is a deliberately high hurdle to clear, meaning that most content-based restrictions on speech in traditional or designated public forums will be struck down.

On the other hand, when a public college or university creates a limited public forum – say, opens the walls of the Natural Science building up for posting flyers related to upcoming events, or invites public comment at a campus “town hall” – the school can establish boundaries regarding both who may speak and what they can talk about. This is the one time the government can restrict a forum based on content: in a place that wouldn’t otherwise be open for speech, the government can open it for a limited purpose. However, once the government has done that, it may only exclude speech that reasonably falls outside the forum’s purpose, and it may never restrict speech based on viewpoint. 

Reasonable restrictions have a specific meaning in this context: they have to clearly define what speech is permitted in the forum, and what isn’t. If a restriction is too vague, different administrators may come to different conclusions. The Supreme Court has held, for example, that merely prohibiting “political” speech from a forum provides no “sensible basis for distinguishing what may come in from what must stay out.” What counts as political to one administrator might not count for another. Even in a limited public forum, administrators cannot have unbridled discretion to police speech. 

Viewpoint-based restrictions – restrictions that prohibit not a topic of speech, generally, but just one side of a debate – are heavily disfavored and are presumptively unconstitutional. Courts rarely, if ever, uphold these restrictions. The foundational Supreme Court opinion for this principle comes from the 1995 case Rosenberger v. Rector and Visitors of University of Virginia. In Rosenberger, the University of Virginia used public money to subsidize publishing costs for nonreligious student groups, but denied those funds to a Christian student newspaper. The Court held that, although a student activities fund was more a “metaphysical” forum than a geographic one, the school was nevertheless prohibited from excluding speakers because of the particular perspective the speakers expressed. 

Viewpoint discrimination can occur both in the text of a school’s regulation, or in the way a school applies what would otherwise appear to be a viewpoint neutral policy. On the face of a regulation, a policy restricting “offensive” or “inappropriate” speech, for example, necessarily discriminates based on viewpoint. First, what gives “offense” is in the eye of the beholder – if you’re censoring or punishing speech because you do not like it, you’re discriminating based on viewpoint. Second, the Supreme Court has held that giving offense is, itself, a viewpoint and is protected. Policies with language banning “offensive” speech will be struck down as facial violations of student or faculty free speech rights.

Policies that don’t appear to discriminate based on viewpoint on their face can also violate the First Amendment if administrators enforce them in viewpoint discriminatory ways. For example, many schools impose security fees when student groups have outside speakers on campus. These policies may appear to be viewpoint, or even content neutral, but schools routinely require higher fees for controversial speakers, effectively levying a tax on speech they believe might offend or be controversial. The Supreme Court has held that security policies that give government officials discretion to set fee amounts violate the First Amendment because  “[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.” If you apply any policy in a way that favors some viewpoints over others, you’re violating your campus community’s rights to be free from viewpoint discrimination. 

So far in this unit, you’ve learned about the kinds of forums you may find on your campus; you’ve learned about time, place and manner restrictions; and now you’ve learned about content- and viewpoint-based discrimination. In the next lessons, we’ll teach you about state laws that may restrict how you address each of these issues, and then give you some practical tips for how to make sure you’re following the First Amendment when drafting or enforcing policies on campus.

Suggested Resources:

• "Memorandum in Support of Motion for Preliminary Injunction" in Flores v. Bennett (2022)

• Zach Greenberg Reed/Reagan CLE PowerPoint (available upon request)

• Reed v. Town of Gilbert (2015)

• City of Austin v. Reagan National Advertising (2022)

• Minnesota Voters All. v. Mansky (2018)

• Rosenberger v. Rector & Visitors of University of Virginia (1995)

• Matal v. Tam (2017)

• Forsyth County v. Nationalist Movement (1992)

• Alex Morey, "UC Berkeley agrees to pay $70k, change policies, in speech suit settlement" (2018)

• Heffron v. International Society for Krishna Consciousness (1981)