The content-discrimination principle remains the chief analytical tool used in First Amendment jurisprudence. Under this doctrine, laws are categorized as content-based or content-neutral. Content-based laws are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny.
The U.S. Supreme Court ratcheted up the content-discrimination principle in Reed v. Town of Gilbert. Previously, lower courts were divided on whether a law was content-based if the underlying purpose was not to engage in censorship or content-discrimination. In Reed, however, the Court declared that the law’s purpose is not the central inquiry. It concluded that if a law draws facial distinctions based on speech then it is content-based.
This Article examines the Court’s decision in Reed and then assesses how this doctrine intersects and interacts with two long–standing and controversial doctrines in First Amendment law: (1) the commercial-speech doctrine; and (2) the secondary-effects doctrine. Under both of these doctrines, content-based laws involving commercial speech or adult-oriented, sexual expression are treated as content-neutral. These doctrines are seemingly irreconcilable with Reed.
Hudson, David L., The Content-Discrimination Principle and the Impact of Reed v. Town of Gilbert (2019). Case Western Reserve Law Review, Vol. 70, No. 2, 2019; Belmont University College of Law Research Paper No. 2020-2.