Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 13 of 139
specific prohibition applies to the States, as “[f]reedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).
Over time, the Supreme Court has recognized two modes of restricting speech that are almost always subject to heightened scrutiny—namely, content-based restrictions and viewpoint-based restrictions. This Court notes the distinction at the outset as it has direct implications for the State’s ability, within constitutional bounds, to restrict educators’ speech in public university classrooms—but more on that later.
Start with content. “[T]he First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals.” Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994) (emphasis added). Thus, the Supreme Court has traditionally applied “the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Id. at 642. A government regulation of speech is content-based if, on its face, the law “draws distinctions based on the message a speaker conveys.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). In addition, laws that are “facially content neutral … will be considered content-based regulations of speech … [if they] cannot be
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