Date:         Sun, 27 Oct 1996 11:30:34 -0500
Sender: Legal Scholarship Network <CYBERSPACE-LAW@PUBLISHER.SSRN.COM>
From: Alan Lewine <Alan_R_Lewine@SSRN.COM>
Subject:      CYBERSPACE-LAW #45: Free Speech 6
To: Multiple recipients of list CYBERSPACE-LAW
              <CYBERSPACE-LAW@PUBLISHER.SSRN.COM>

               CYBERSPACE LAW FOR NON-LAWYERS

                    Topic: Free Speech 6

          (Number 6 of 20 on the topic FREE SPEECH)

                      E-Mail Number: 45

                Date Posted: 28 October 1996


                 *  *  *  *  *  *  *  *  *


     FREE SPEECH 6:
     RESTRICTIONS OF FULLY PROTECTED SPEECH, PART II

     In the previous message we said that content-based
     restrictions (on fully protected speech imposed by the
     government acting as sovereign) are *generally*
     unconstitutional, and content-neutral restrictions are
     *generally* constitutional.  Actually, it's more precise
     to say:

          -    Content-based restrictions are constitutional
               only if they are
               *    "narrowly tailored" to a
               *    "compelling government interest."

          -    Content-neutral restrictions are
               constitutional as long as they are
               *    "narrowly tailored" to a
               *    "substantial government interest," and
               *    "leave open ample alternative channels
                    of communication."

     None of these terms is particularly clear and, on top of
     that, it turns out that "narrowly tailored" means quite
     different things in the two tests.  But, at least today, the
     Supreme Court seems *extremely* unlikely to uphold content-
     based restrictions (again, where the government is acting as
     sovereign and trying to restrict fully protected speech).
     And, at least today, the Supreme Court seems *quite* unlikely
     -- but not extremely unlikely -- to strike down content-
     neutral restrictions.

     So rather than bore you with a long and technical discussion
     of the cases, we'll just leave it at this: Content-based
     speech restrictions are almost certainly unconstitutional,
     and content-neutral speech restrictions are quite likely to
     be constitutional.


             * * * * * * * * * * * * * * * * * * * * * *
                              authors:

             Larry Lessig    David Post    Eugene Volokh

             * * * * * * * * * * * * * * * * * * * * * *


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         Yours virtually,
         Alan Lewine
         Cyberspace-Law Listmeister
         Alan_R_Lewine@SSRN.com