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There is no single interpretation of the First Amendment that all legal scholars accept. More specifically, there is an absence of complete agreement on each of the following issues:

• The philosophical basis for a right to free expression
• The purpose(s) of an established right to free expression
• The test or tests to apply when deciding cases involving expression
  

One difference in approach to cases involving the right to free expression is between "categorization analysis" and "contextual analysis." In speaking of Doe v. University of Michigan, one commentator made the point this way:

The court employed categorization analysis, which permits content-based restrictions only of speech that falls into one of a few, narrow categories, regardless of countervailing interests. Though maximizing protection of important first amendment interests, categorization undervalues the potentially conflicting norm of equality; indeed, it may actually perpetuate discrimination. A better approach would have courts employ a contextual analysis that fully weighs both the harm hate speech inflicts on minority and women students and the need to ensure the airing of all ideas. . . .

Categorization surely promotes powerful free expression values, but the desire to minimize potential harm to valued speech does not justify excluding from analysis real harm to minorities and women. In the campus setting, categorization disregards the "fundamental, overriding interest in eradicating . . . discrimination in education."

Reference: Harvard Law Review, March 1990, p. 1397-8.