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Chemerinsky: SCOTUS clarifies First Amendment debate over content regulation of signs

For decades, a central inquiry in free speech analysis has been whether government regulation is content-based or content-neutral. Content-based government regulations of speech generally must meet strict scrutiny. To be constitutional, they must be narrowly tailored to achieve a compelling government purpose. By contract, content-neutral regulations have only to meet intermediate scrutiny, being substantially related to achieve an important government purpose.

Therefore, a great deal of First Amendment litigation focuses on whether a particular law or regulation should be deemed content-based or content-neutral. The U.S. Supreme Court’s decision on April 21 in City of Austin v. Reagan National Advertising provides important guidance on how it is to be determined whether a law is content-based.

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