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Copyright (c) 1991 The Trustees of The University of Pennsylvania 
University of Pennsylvania Law Review

ARTICLE: CONTENT DISCRIMINATION AND THE FIRST AMENDMENT.

January, 1991

139 U. Pa. L. Rev. 615

Author

SUSAN H. WILLIAMS +

Excerpt

The doctrinal web surrounding the free speech clause of the first amendment is one of the most complicated and confusing in constitutional law. 1 Perhaps in part in an effort to bring order to this confusion, the Supreme Court has turned increasingly in recent years to larger organizing principles that cut across the various lines of doctrine. One of the most important of these is the distinction between content-based and content-neutral regulations of speech. 2 The distinction has enjoyed growing prominence as a judicial tool for categorizing government actions regarding expression and for justifying the level of scrutiny applied to those actions. 3 Although both the coherence and the usefulness of the distinction have generated great controversy among commentators, 4 the Supreme Court has continued to use the distinction, to develop it in new ways, 5 and to apply it in new contexts. 6

The Court's growing focus on content discrimination as the central concern of the first amendment has met with mixed enthusiasm from legal scholars. This new organizing principle in first amendment jurisprudence has been criticized, among other things, as ignoring the impact that content-neutral regulation can have on the total quantity of speech. 7 As Justice Marshall put it, the principle condemning content discrimination has been used by the Court to turn equality from a floor guaranteed to all into a ceiling. 8 I believe that these criticisms are justified and that the content discrimination principle is by no means a sufficient foundation for first amendment doctrine. ...
 
 
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