This post is Part 5 of a multi-part series. For a more detailed explanation and legal analysis of the issues discussed in this blog post series (including citations to cases referenced in the post), please see Local Government Law Bulletin No. 141, Responding to First Amendment “Audits” in the Local Government Context. 

As discussed in a prior post in this series, the area of government property at issue—the “forum”— dictates how local governments may regulate First Amendment activities. Though courts have identified four types of forums, local governments may find it simpler to think about areas of property as falling into two types of categories.  

• Is the area a traditional public forum or designated public forum, open (by tradition or by intentional action) to a full spectrum of expressive activity? If so, the local government can only impose restrictions if they 1) are content-neutral, 2) are narrowly tailored to serve a significant government interest, and 3) leave open ample alternative channels of communication.  

• • Local governments should think carefully before imposing any restrictions on filming in such areas, as they will be subject to more demanding judicial scrutiny.  

• Is the area a nonpublic forum (where the property’s primary purpose is to conduct or facilitate government business/service and not to provide a forum for public expression) or a limited public forum (where the government has intentionally reserved a nonpublic forum for expressive activity only by certain groups or only for the discussion of certain topics)? If so, restrictions on expressive activity must merely be 1) viewpoint-neutral and 2) reasonable in light of the purpose of the forum.  

• • Restrictions in these areas are more likely to be upheld by courts, though like any restriction implicating the First Amendment, they will still be subject to a fact-specific analysis.  

What does it mean for a restriction on speech to be “content-neutral” or “viewpoint-neutral”? This blog post explores these issues. 

Content Neutrality and Viewpoint Neutrality 

Under the First Amendment, discrimination against the content of speech is deeply suspect. A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”  Even if a regulation does not target content on its face, courts will analyze whether the regulation is content-based as applied. A regulation that does not target content on its face, can be justified without reference to content, and was not enacted merely due to disagreement with a certain message is likely to be deemed content-neutral.  

Viewpoint discrimination is “an egregious form of content discrimination in which the government targets not subject matter, but particular views taken by speakers on a subject.” A regulation that does not discriminate based on opinion or belief about a particular issue or subject matter is likely to be deemed viewpoint-neutral. A regulation can be viewpoint-discriminatory either on its face or as applied.  

Distinguishing Between Content-Based and Viewpoint-Based Discrimination  

Content-based restrictions apply to particular types of speech based on the topic or subject matter discussed.  Viewpoint-based restrictions are also based on content, but they go a step further by discriminating against particular views held about a subject matter. The difference between content and viewpoint discrimination can be difficult to crystallize, but the distinction has significant legal implications. For example, some types of content-based discrimination may be permissible in a limited public forum or a nonpublic forum, while viewpoint discrimination in those same limited or nonpublic forums would be impermissible. It is important to remember that viewpoint-based restrictions are unlawful under the First Amendment regardless of the type of forum at issue. 

Content-based restrictions target an entire category or topic of speech, whereas viewpoint-based restrictions go a step further by suppressing one viewpoint on an issue while allowing others. By way of illustration, imagine a local government wants to restrict speech around the topic of immigration. A regulation that restricted all speech pertaining to immigration would be a content-based regulation. A regulation that restricted only pro-immigration speech, while allowing anti-immigration speech, would be a viewpoint-based regulation. Likewise, imagine a local government that has created a social media page and enacted a policy that prohibits all posts on the page related to “controversial issues.” Such a restriction would be content-based, since it prohibits speech on an entire subject matter (controversial issues). If the same local government went a step further and prohibited “all posts that are critical of local government officials” (while allowing favorable posts), that restriction would be viewpoint-based. Such a restriction targets a specific perspective, rather than a broad subject matter as a whole.  

Litigants may challenge both content-based and viewpoint-based restrictions using a facial or an as applied approach. A facial challenge questions the language of a particular regulation and the regulation’s justification. An as-applied challenge argues that the regulation makes distinctions based on content or viewpoint in practice and favors or restricts some speakers over others based on the messages or opinions those speakers hold.  

How Do These Concepts Relate to Forum Analysis? 

Whether a law is content-based or content-neutral dictates the level of scrutiny courts will apply to a restriction on speech in a traditional public forum or designated public forum. Laws or regulations that discriminate based on the content of speech must satisfy strict scrutiny review—that is, the regulations must be the least restrictive means of achieving a compelling government interest. Strict scrutiny is a demanding standard and “[i]t is rare that that a regulation restricting speech because of content will ever be permissible.” 

Courts apply a slightly less rigorous standard—intermediate scrutiny–to content-neutral regulations in traditional public forums and designated public forums. To pass intermediate scrutiny, a regulation must i) be justified without reference to the content of speech, ii) be narrowly tailored to serve a significant government interest, and iii) leave open ample alternative channels of communication for the speech or information at issue. To satisfy narrow tailoring, a regulation must not burden significantly more speech than is necessary to further the government’s legitimate interests. If a regulation substantially burdens a wide variety of speech without advancing governmental goals, that regulation is not likely to be narrowly tailored.  In the Fourth Circuit, the government must show that it at least considered less restrictive measures but found them inadequate to protect the significant government interest. 

In limited public forums and nonpublic forums, there is no requirement that a restriction on speech be content-neutral or narrowly tailored to meet a compelling or substantial government interest. Instead, the question at issue is whether the restrictions are viewpoint-neutral and reasonable in light of the purpose of the forum. The “reasonableness” requirement—a less demanding standard than strict or intermediate scrutiny—will be discussed in the next post in this series.  

Application to the First Amendment Auditor Context 

There is an open question as to how courts will analyze whether a filming restriction is content- or viewpoint-based. The act of filming in and of itself does not inherently express any viewpoint. Accordingly, it is unlikely that a total ban on filming could be viewpoint discriminatory unless a local government applied the ban in an uneven manner to parties that wanted to express different viewpoints with their films. While case law interpreting “no filming” or “no recording” policies on government property is scarce, at least one case within the Fourth Circuit has upheld a filming restriction as viewpoint-neutral. In Benzing v. North Carolina, a probation office required that all patrons turn off cell phones before entering the office and prohibited any recording within the office. The court declined to find any First Amendment right to use a cell phone in the probation office and noted that the restriction was viewpoint-neutral.  The court did not explain why it deemed the restriction viewpoint-neutral, but it did note that the restriction was generally applicable and did not limit the plaintiff’s right to speak within the probation office. 

Other federal courts outside of the Fourth Circuit have also treated filming restrictions as viewpoint-neutral. One such case is Sheets v. City of Punta Gorda, Florida, 415 F. Supp. 3d 1115 (M.D. Fla. 2019).  There, the court evaluated a city ordinance prohibiting filming in city hall without the consent of the individuals being filmed. Since the city hall was a limited public forum, the ordinance did not need to be content-neutral, but it did need to be viewpoint-neutral to pass constitutional muster. The ordinance was viewpoint-neutral on its face because it did not target any specific opinion, belief, view, or ideology in its plain language. The regulation simply prohibited nonconsensual filming, regardless of who was filming or what beliefs or opinions the film might express. The court also suggested that it might have upheld the no-filming regulation even without a consent exception, noting that the consensual filming exception permitted more speech than was necessary.  

Given the scarce case law, it is difficult to draw conclusions about the types of filming or recording regulations that courts will uphold as content and viewpoint-neutral. However, the cases described above demonstrate that courts may treat generally applicable prohibitions on filming as constitutionally permissible viewpoint-neutral restrictions in limited public forums and nonpublic forums.  

When might a regulation prohibiting filming be deemed “content-based” and thus problematic in a traditional or designated public forum? The key question is whether the filming regulation discriminates based on “the topic discussed or the idea or message expressed.” Arguably, broadly restricting filming in a particular area does not discriminate against any particular topic or opinion, meaning such a restriction would be both content-neutral and viewpoint-neutral if it was applied evenly to anyone seeking to film in the area. Of course, content neutrality is not the end of the constitutional analysis, but it is an important starting point in evaluating whether a restriction is likely to be upheld.  

To bolster the enforceability of prohibitions on filming in particular areas, local governments must justify and apply such restrictions in a manner that is unrelated to suppressing speech of particular individuals or groups. If the sole justification for a “no filming” policy is to restrict the access of First Amendment auditors, even a facially neutral “no filming” policy could fail under an as-applied challenge. Consider, for example, a policy that purports to ban all filming in a local government building lobby. Arguably, such a policy is content-neutral and viewpoint-neutral. However, if employees in the building routinely allow members of the media to film in the area and enforce the “no filming” policy only against First Amendment auditors, such a policy might be deemed to be viewpoint-based as applied. Inconsistent application of such a policy against First Amendment auditors (but not against other individuals seeking to film) could appear to discriminate against their particular viewpoint.   

For that reason, local governments should think critically about what purposes filming restrictions serve in particular forums. Are local governments primarily concerned about safety, privacy, or some other concern? Is that concern unrelated to the suppression of speech that is critical of the local government? Local governments must be able to clearly articulate their motives for enacting no-filming restrictions in order to create policies and regulations that may withstand judicial scrutiny. Local government units should also consider how no-filming or recording policies achieve the policies’ underlying purposes. If the concern is safety or privacy, is the no-filming restriction actually designed to promote that interest? Are there alternative ways to promote that interest that do not burden speech or expression? All these considerations relate to achieving the narrow tailoring required to withstand at least the intermediate scrutiny level of review in a traditional public forum or designated public forum.  

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What factors go into determining that a restriction is “reasonable in light of the purpose of the forum” in a nonpublic or limited public forum? We will discuss that topic in the next post in this series.