Substantive Toleration and Viewpoint Discrimination

Under modern Supreme Court doctrine regarding the First Amendment freedom of speech, the court distinguishes between content-based regulations of free speech that involve viewpoint discrimination versus content-based regulations that only involve subject-matter or topic discrimination. Viewpoint discrimination occurs when government action is triggered depending on which side of a topic the individual supports. Subject-matter or topic discrimination occurs when government action is triggered whenever a topic/subject-matter is discussed without regard to the person’s views on that topic/subject-matter. While any form of content-based discrimination by government is troubling, viewpoint discrimination is a more troublesome form of content discrimination because it involves the government taking sides in a debate. Most of the time this distinction is clear, but occasionally categorizing a regulation has given the Court some problems. While the holdings in the cases may be defensible, one set of cases from 1988 – 2007 seem to involve strained reasoning: Boos v. Barry, Finley v. National Education for the Arts, and Morse v. Frederick. A second, more recent set of cases from 2017 – 2019 seem to adopt reasoning contrary to these three cases: Matel v. Tam and Iancu v. Brunetti. The 2015 case of Walker v. Texas Department of Transportation, which also includes viewpoint discrimination issues, also has problematic reasoning. One way to understand these cases is to note that in the earlier set of cases a majority of the Supreme Court had a predisposition, if possible, to uphold traditional moral values in society despite some impact on a pure marketplace of ideas rationale. The second set of cases involves a changed predisposition among the Court majority to adopt a purer marketplace of ideas methodology that government should tolerate all kinds of speech without regard to the problematic moral values embedded in that speech. Both these approaches have problems in practice. This can be seen by considering three kinds of moral philosophies: (1) a moral philosophy based on upholding traditional moral values; (2) a moral philosophy based on “procedural toleration” of tolerating all kinds of speech without regard to any problematic moral values embedded in that speech; and (3) a moral philosophy based on “substantive toleration.” Some persons hear the word “tolerance” and they think it means all values are relative and that every person’s views are equally entitled as a procedural matter to be viewed as legitimate from a moral perspective. In contrast, other persons understand that “tolerance” involves a substantive commitment to treating other persons with equal concern and respect, and that individuals who espouse non-tolerant “nativist” or “cultural supremacists” notions violate this substantive commitment to tolerance. Because “nativist” or “cultural supremacist” notions violate a substantive commitment to tolerance, from the perspective of “substantive tolerance” their views should not be entitled to equal concern and respect and their pleas for tolerance of their perspectives should be rejected. The thesis of this article is that persons should adopt “substantive toleration” as the moral philosophy to which to aspire. From this perspective, a tolerant person has no obligation to, and indeed should not, tolerate intolerant attitudes in others. Viewpoint discrimination law should take this insight into account in resolving the problematic case reasoning of the viewpoint discrimination cases of the last four decades.