The First Amendment protects us from government suppression of speech, including speech that’s offensive, repugnant and even hateful. Now and then, however, government at some level tries to discriminate against a particular type of speech or speaker, thinking it has good reasons to do so.
When that happens, it’s called viewpoint discrimination or content discrimination. The designation depends on whether the law, policy or official suppresses speech because of the particular viewpoint or because of the subject matter. Two constitutional protections can be used to combat this form of selective speech discrimination — one in the First Amendment, the other in the 14th.
Justice Thurgood Marshall expressed this fundamental First Amendment principle in Police Department of City of Chicago v. Mosley (1972) when he wrote 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.”
The other vital important constitutional guarantee that limits disparate treatment of speakers is the equal-protection clause of the 14th Amendment. It provides that no state shall “deny to any person the equal protection of the laws.” This clause, once labeled by Justice Oliver Wendell Holmes as “constitutional argument of last resort,” is often viewed as the constitutional power that can be used against racial and gender discrimination in society.
But the equal-protection clause can work in tandem with the First Amendment free-speech clause to ensure that the government treats different types of speakers or speech in a similar fashion.
In Police Department of City of Chicago v. Mosley, Earl Mosley, a federal postal employee, had been protesting outside a high school for months with messages, such as: “Jones Commercial High School practices black discrimination. Jones High School has a black quota.” Chicago passed a new ordinance that prohibited all picketing within 150 feet of schools except for “the peaceful picketing of any school involved in a labor dispute.”
Under this law, some speakers — labor protesters demonstrating close to a school — were treated better than those, like Earl Mosley, who protested against racial discrimination. Treating some speakers better than others violates both the First Amendment and the equal-protection clause, as Marshall stated: “Under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.”
Sometimes we compartmentalize different provisions of the Constitution, applying the First Amendment to speech cases and the equal-protection clause to discrimination cases. Yet sometimes both apply. When the government discriminates against speakers, both can protect individual liberty.
David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.