Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 14 of 139
‘justified without reference to the content of the regulated speech,’ or [if they] were adopted by the government ‘because of disagreement with the message the speech conveys.’ ” Id. at 164 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Next, viewpoint. The Supreme Court has recognized viewpoint-based restrictions as a distinct subset of content discrimination. “Government discrimination among viewpoints—or the regulation of speech based on ‘the specific motivating ideology or the opinion or perspective of the speaker’—is a ‘more blatant’ and ‘egregious form of content discrimination.’ ” Reed, 576 U.S. at 168 (emphasis added) (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (“In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination … . St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”) (emphasis added). With respect to viewpoint-based restrictions on protected speech, “[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger, 515 U.S. at 829.
While the concepts overlap—viewpoint discrimination is a recognized form of content-based restriction on speech—they are not always one and the same.
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