Free Speech & First Amendment
The First Amendment protects freedom of speech from government restriction, with the level of protection depending on the type of speech and the nature of the regulation.
Overview
The First Amendment provides that "Congress shall make no law... abridging the freedom of speech." Through incorporation, this protection applies to all levels of government. First Amendment doctrine distinguishes between different types of speech and different types of government regulation, applying varying levels of scrutiny.
Content-based restrictions — those that target speech based on its message — receive strict scrutiny and are presumptively unconstitutional. The government must show the restriction is narrowly tailored to a compelling interest. Reed v. Town of Gilbert broadly defined content-based restrictions as any law that applies to particular speech because of the topic discussed or the idea expressed.
Content-neutral regulations — time, place, and manner restrictions — receive intermediate scrutiny. They must be narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. United States v. O'Brien established the test for regulations of expressive conduct (symbolic speech).
Certain categories of speech receive reduced or no protection: true threats (Virginia v. Black), fighting words (Chaplinsky v. New Hampshire), obscenity (Miller v. California), defamation (New York Times v. Sullivan), and incitement to imminent lawless action (Brandenburg v. Ohio).
The prior restraint doctrine from Near v. Minnesota and New York Times v. United States places a heavy presumption against government censorship before publication. Forum analysis determines how much the government can restrict speech in public forums (strict scrutiny), designated public forums (strict scrutiny), and nonpublic forums (reasonableness).
Key Takeaway
First Amendment analysis starts with classifying the regulation as content-based or content-neutral, then applying the appropriate level of scrutiny. Content-based restrictions are presumptively unconstitutional.
Exam Tip
Always start by classifying the restriction (content-based vs. content-neutral) and the speech category (protected, unprotected, commercial). Then apply the matching scrutiny test. Don't forget to check for overbreadth and vagueness challenges.
Landmark Cases (13)
Frequently Asked Questions
What is the difference between content-based and content-neutral restrictions?
Content-based restrictions target speech based on its subject matter or viewpoint — they receive strict scrutiny. Content-neutral restrictions regulate the time, place, or manner of speech regardless of message — they receive intermediate scrutiny.
What categories of speech are unprotected by the First Amendment?
Unprotected categories include: incitement to imminent lawless action (Brandenburg), true threats (Virginia v. Black), fighting words (Chaplinsky), obscenity (Miller), defamation, fraud, and speech integral to criminal conduct.
What is the Brandenburg test for incitement?
Brandenburg v. Ohio holds that the government cannot punish advocacy of illegal action unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Both intent and imminence are required.
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