Content regulation reconsidered
For many years I have thought that there was an important and appealing fundamental truth behind Justice Thurgood Marshall's observation 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.”1 As the years have gone by, however, this truth has come to seem more elusive, more limited, and less fundamental than it once did. What follows is an attempt to reexamine the impermissibility of contentbased restrictions by regarding it as one element within a larger view of freedom of expression as a right.
The idea that there is something especially bad about government regulation of the content of expression, whether this takes the form of prohibiting some contents or requiring others, has obvious relevance to many questions about the regulation of mass media, ranging from restrictions on advertising of alcohol and tobacco products to the fairness doctrine and statutes mandating a right to reply to political editorials. I shall discuss some of these issues briefly, but I shall not be able to explore any of them in detail. My aim is, rather, to provide a general framework within which they can be discussed in a systematic way.
In my view, rights are constraints on discretion to act that we believe to be important means for avoiding morally unacceptable consequences.2 To claim that a certain action or policy violates a right is to claim: first, that
1Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).
2 Here and in the following section I summarize a view of rights that I have set out more fully in
“Rights, Goals, and Fairness” (1978), in this volume, essay 2. I have applied this view to freedom of
expression in “Freedom of Expression and Categories of Expression” (1979), in this volume, essay 5.