CONTENT BASED RESTRICTION OF THE FREEDOM OF EXPRESSION

Content-based restrictions regulate speech based on its subject matter or viewpoint. They seek
to suppress, disadvantage, or impose differential burdens upon speech because of its
content.[1] Justice Holmes, in one of his most famous opinions, wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in
a theater and causing a panic. . . . The question in every case is whether the words used . . .
create a clear and present danger. . . .[2]

Analysis

In its current formulation of this principle, the Supreme Court held that advocacy of the use of
force or of law violation is protected unless such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.[3] Similarly, the Court
held that a statute prohibiting threats against the life of the President could be applied only
against speech that constitutes a true threat, and not against mere political hyperbole.[4]

In cases of content-based restrictions of speech other than advocacy or threats, such

regulations are presumptively invalid.[5] The Supreme Court generally has applies the strict
scrutiny standard, which means that it will uphold a content-based restriction only if it is
necessary to promote a compelling interest, and is the least restrictive means to further the
articulated interest.[6]

Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from publishing the
name of a rape victim, lawfully obtained.[7] This is because there ordinarily is no compelling
governmental interest in protecting a rape victims privacy.[8]

By contrast, [n]o one would question but that a government might prevent actual obstruction to
its recruiting service or the publication of the sailing dates of transports or the number and
location of troops.[9] Similarly, the government may proscribe fighting words those which
by their very utterance inflict injury or tend to incite an immediate breach of the peace.[10] Here
the Court was referring to utterances that constitute epithets or personal abuse that are no
essential part of any exposition of ideas, as opposed to, for example, flag burning.

The operative distinctions between a courts review of a content-based restrictions and a

content-neutral restrictions is that in the former case, the government must meet the compelling
interest and least restrictive means standards, while in the latter situation the government
need only prove a significant interest and the availability of ample alternative channels for
communication of the information.

Constitutional scholars generally agree that governmental regulation of media products with
violent content, whether in the form of banning, rating, or channeling of violent media content,
necessarily requires the government to make a judgment as to what content lies within the
ambit of the statute and what content does not, thereby triggering content-based strict scrutiny
review.[11]

HECKLER'S VETO
A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or
restricted by the government in order to prevent a reacting party's behavior. The common
example is that of demonstrators (reacting party) causing a speech (given by the acting party) to
be terminated in order to preserve the peace.

The term was coined by University of Chicago professor of law Harry Kalven.[1]

In the United States, case law regarding the heckler's veto is mixed. Most findings say that the
acting party's actions cannot be pre-emptively stopped due to fear of heckling by the reacting
party, but in the immediate face of violence, authorities can ask the acting party to cease their
action in order to satisfy the hecklers.

The best known case involving the heckler's veto is probably Feiner v. New York, handed down
by the Supreme Court in 1951. Chief Justice Fred M. Vinson, writing for the majority, held that
police officers acted within their power in arresting a speaker if the arrest was "motivated solely
by a proper concern for the preservation of order and protection of the general welfare." 340
U.S. 315.

It was rejected in Hill v. Colorado[2], where the Supreme Court rejected the "Heckler's Veto,"
finding "governmental grants of power to private actors" to be "constitutionally problematic" in
cases where "the regulations allowed a single, private actor to unilaterally silence a speaker"[3]