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The Constitution “demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality.” Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004).
In light of the substantial and expansive threats to free expression posed by content-based restrictions, the Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” United States v. Stevens, 559 U.S. ___, ___, 130 S. Ct. 1577, at 1585, 176 L. Ed. 2d 435 (2010). Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “ 'historic and traditional categories [of expression] long familiar to the bar,' Id., at ___, 130 S. Ct. 1577, at 1584, 176 L. Ed. 2d 435 (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (Kennedy, J., concurring in judgment)).
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