Non-Factual Speech
Government Restraint on Content of Expression
As a general matter, government may not regulate speech “because of its message, its ideas, its subject matter, or its content.” — Police Department v. Mosley (1972). Invalid content regulation includes not only restrictions on particular viewpoints, but also prohibitions on public discussion of an entire topic. Originally, the Court took a “two-tier” approach to content-oriented regulation of expression. Under the “definitional balancing” of this approach, some forms of expression are protected by the First Amendment and certain categories of expression are not entitled to protection. This doctrine traces to Chaplinsky v. New Hampshire (1942), in which the Court opined…
