Document Type
Article
Abstract
In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of "content" discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous to public discourse. Therefore, the Court has in practice applied a heightened review to instances of viewpoint discrimination under the guise of conventional strict scrutiny. This heightened scrutiny explains decisions, like R.A.V., in which the Court invalidated seemingly constitutional statutes regulating public discourse
Recommended Citation
29 Wake Forest L. Rev. 1135 1994
