Content neutral refers to laws that apply to all expression without regard to the substance or message of the expression.
Such laws generally regulate only the time, place, and manner of speech in contrast to content-based laws, which regulate speech based on content. This distinction is important in First Amendment cases because courts hold content-based laws to strict scrutiny — the highest form of judicial review — while holding content-neutral laws only to intermediate, or mid-level, scrutiny.
Content neutral laws are often found to be constitutional
Often, the distinction is determines the outcome of a case, as many content-based laws are struck down, but many content-neutral laws survive judicial inquiry.
Reviewing courts often label a law as content based or content neutral by determining whether the government passed the law in order to suppress expression.
The Supreme Court explained in Ward v. Rock Against Racism (1989) that “the principal inquiry in determining content neutrality, in speech cases generally . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”
Content-neutral laws must regulate speech without reference to the speech’s substance, be narrowly tailored, and leave open alternative avenues of expression.
Examples of content-neutral laws that have been upheld
Examples deemed content neutral by the Supreme Court include:
- a National Park Service regulation prohibiting camping (including as a form of protest) in certain federal parks, determined in Clark v. Community for Creative Non-Violence (1984);
- a city park permitting scheme requiring advance application for gatherings of more than 50 individuals, in Thomas v. Chicago Park District (2002); and
- a Minnesota rule prohibiting the sale or distribution of any merchandise, including printed material, in parks, in Heffron v. International Society for Krishna Consciousness (1981).