Beyond Content Neutrality: Understanding Content-Based Promotion of Democratic Speech

Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite its wide acceptance, the distinction lacks any precedential or normative basis, unless it also accounts for another equally important distinction. The scholars' conventional view of content-analysis overlooks the difference between the government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.\nPrecedent and the First Amendment's underlying normative concerns both require this distinction and support content-based laws promoting democratic content. The precedent in almost every area of First Amendment doctrine applies minimal scrutiny to content-based promotion. To reach these results, courts usually claim to apply one of several "exceptions" to content-analysis, but these many exceptions actually add up to a rule: content-based promotion of speech does not receive heightened scrutiny. This rule serves the normative goals of the First Amendment. Exceptions to this rule-the most notable of which applies to emerging electronic media-are a judicial mistake that should be corrected.