Justice Kagan's Arguments for "Relax[ing] Our Guard" as to Some Content-Based (But Viewpoint-Neutral) Speech Restrictions

From Justice Kagan’s concurrence, joined by Justice Sotomayor, in today’s Chiles v. Salazar:

[A.] The Court today decides that the Colorado law challenged here, as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint. I agree. I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.

As the Court states, governments must “nearly always” abstain from adopting viewpoint-based restrictions. Those laws represent a particularly “egregious form” of content-based regulation, implicating First Amendment concerns to the highest possible degree. A law drawing a line based on the “ideology” of the speaker—disadvantaging one view and advantaging another—skews the marketplace of ideas our society depends on to discover truth. And such a law suggests an impermissible motive—that the government is regulating speech because of its own “hostility” toward the targeted messages. If the First Amendment prohibits anything, it is the “official suppression of ideas.” …

Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way. Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.

[B.] It would, however, be less so if the law under review was content based but viewpoint neutral. Such content-based laws, as the Court explains, trigger strict scrutiny “[a]s a general rule.” But our precedents respecting those laws recognize complexity and nuance. We apply our most demanding standard when there is any “realistic possibility that official suppression of ideas is afoot”—when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws always do. But when that is not the case—when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—then we have not infrequently “relax[ed] our guard.” …

Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions. And those restrictions will generally refer to the speech’s content. But laws of that kind may not pose the risk of censorship—of “official suppression of ideas”—that appropriately triggers our most rigorous review. And that means the “difference between viewpoint-based and viewpoint-neutral content discrimination” in the health-care context could prove “decisive.” Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one.

Here’s more from her opinion dealing with a similar question in Reed v. Town of Gilbert (2015), which she cites in her opinion in Chiles:

We apply strict scrutiny to facially content-based regulations of speech … when there is any “realistic possibility that official suppression of ideas is afoot.” That is always the case when the regulation facially differentiates on the basis of viewpoint.

It is also the case … when a law restricts “discussion of an entire topic” in public debate. We have stated that “[i]f the marketplace of ideas is to remain free and open, governments must not be allowed to choose ‘which issues are worth discussing or debating.’” And we have recognized that such subject-matter restrictions, even though viewpoint-neutral on their face, may “suggest[] an attempt to give one side of a debatable public question an advantage in expressing its views to the people.”

Subject-matter regulation, in other words, may have the intent or effect of favoring some ideas over others…. But when that is not realistically possible, we may do well to relax our guard so that “entirely reasonable” laws imperiled by strict scrutiny can survive…. Our concern with content-based regulation arises from the fear that the government will skew the public’s debate of ideas—so when “that risk is inconsequential, … strict scrutiny is unwarranted.”

To do its intended work, of course, the category of content-based regulation triggering strict scrutiny must sweep more broadly than the actual harm; that category exists to create a buffer zone guaranteeing that the government cannot favor or disfavor certain viewpoints. But that buffer zone need not extend forever. We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function….

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