Learning Outcomes
After reading this article, you will be able to identify and apply the rules governing content-based regulation of protected expression under the First Amendment. You will distinguish content-based from content-neutral restrictions, recognize the strict scrutiny standard, and understand the limited categories of unprotected speech. You will also be able to spot common exam traps and analyze MBE-style questions on this topic.
MBE Syllabus
For MBE, you are required to understand the constitutional limits on government regulation of protected expression, especially when regulation is based on the content of speech. This article covers:
- The distinction between content-based and content-neutral regulation of expression.
- The strict scrutiny standard for content-based restrictions.
- Categories of unprotected or less protected speech (e.g., obscenity, incitement, fighting words).
- The overbreadth and vagueness doctrines.
- The difference between prior restraints and subsequent punishments.
- The application of these principles to statutes, ordinances, and government actions.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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A city ordinance bans all speech in public parks that "criticizes government officials." What level of scrutiny applies to this ordinance?
- Rational basis
- Intermediate scrutiny
- Strict scrutiny
- Reasonableness
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Which of the following is NOT a category of unprotected speech under the First Amendment?
- Obscenity
- Defamation
- Political protest
- Incitement to imminent lawless action
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A state law prohibits "offensive" speech in public places. What constitutional doctrine is most likely to make this law invalid?
- Overbreadth
- Prior restraint
- Content-neutrality
- Commercial speech
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The government prohibits publication of truthful information about a matter of public concern. Which is the strongest constitutional argument against this restriction?
- It is a prior restraint on protected speech.
- It is a content-neutral regulation.
- It is a reasonable time, place, and manner restriction.
- It is a permissible restriction on commercial speech.
Introduction
The First Amendment prohibits government from restricting expression based on its content, except in rare circumstances. Content-based regulations are subject to the highest level of judicial scrutiny and are almost always struck down unless they fall within a narrow category of unprotected speech. Understanding how to identify content-based regulation and apply the correct standard is essential for MBE success.
Key Term: Content-Based Regulation A law or government action that restricts speech because of the message, idea, subject matter, or viewpoint expressed.
Key Term: Strict Scrutiny The highest standard of judicial review, requiring the government to prove a law is necessary to achieve a compelling interest and is narrowly tailored.
Key Term: Unprotected Speech Categories of expression not protected by the First Amendment, including obscenity, incitement to imminent lawless action, and fighting words.
Key Term: Overbreadth Doctrine A constitutional principle that invalidates laws which prohibit a substantial amount of protected speech along with unprotected speech.
Key Term: Vagueness Doctrine A constitutional rule that requires laws regulating speech to be clear enough for a reasonable person to understand what is prohibited.
Key Term: Prior Restraint Government action that prohibits speech or publication before it occurs, rather than punishing it after the fact.
Content-Based vs. Content-Neutral Regulation
A regulation is content-based if it applies to speech because of the topic discussed or the idea or message expressed. For example, a law banning "all criticism of government" is content-based. In contrast, content-neutral regulations apply regardless of the message, such as a rule limiting the volume of sound in public parks.
Content-based regulations are presumptively invalid and must pass strict scrutiny. Content-neutral regulations are subject to intermediate scrutiny and are generally easier to uphold.
The Strict Scrutiny Standard
When a law is content-based, the government must show:
- The law serves a compelling governmental interest.
- The law is necessary to achieve that interest.
- The law is narrowly tailored—there are no less restrictive means available.
Almost all content-based regulations of protected speech fail this test.
Categories of Unprotected and Less Protected Speech
Not all speech is protected by the First Amendment. The main unprotected categories are:
- Obscenity: Material that meets the three-part Miller test (appeals to prurient interest, is patently offensive, and lacks serious value).
- Incitement to Imminent Lawless Action: Speech intended and likely to produce imminent illegal conduct.
- Fighting Words: Personally abusive epithets likely to provoke an immediate violent response.
- True Threats: Statements meant to place someone in fear of bodily harm.
- Defamation: False statements of fact damaging to reputation, subject to special rules.
Commercial speech and some other categories (e.g., misleading advertising) receive less protection and may be regulated if the regulation is narrowly tailored to serve a substantial interest.
Overbreadth and Vagueness
A law is overbroad if it prohibits a substantial amount of protected speech along with unprotected speech. A law is vague if people of ordinary intelligence cannot determine what is prohibited. Both doctrines are frequently tested on the MBE.
Prior Restraints
Prior restraints—government actions that prevent speech before it occurs—are almost always unconstitutional. Injunctions, licensing schemes, or censorship boards are examples. Even if a prior restraint is content-neutral, it is subject to strict scrutiny.
Application to Statutes and Ordinances
When analyzing a statute or ordinance on the MBE, first determine whether it is content-based or content-neutral. If content-based, apply strict scrutiny. If the law targets unprotected speech, ensure the definition matches the recognized category. If the law is vague or overbroad, it is likely invalid.
Worked Example 1.1
A city ordinance prohibits "all speech in public parks that is critical of city officials." Is this ordinance constitutional?
Answer: No. The ordinance is content-based because it targets speech based on its message. It must satisfy strict scrutiny, which it cannot do. The law is presumptively invalid.
Worked Example 1.2
A state law bans "offensive or annoying language" in public places. Is this law valid?
Answer: No. The law is unconstitutionally vague and overbroad. "Offensive or annoying" is subjective and unclear, and the law prohibits a substantial amount of protected speech.
Worked Example 1.3
A statute prohibits publication of truthful information about a matter of public concern. Is this restriction likely to survive constitutional challenge?
Answer: No. The government cannot punish publication of lawfully obtained, truthful information about a matter of public significance unless it shows a need of the highest order. Such a law is a content-based prior restraint and is almost always invalid.
Exam Warning
Laws that appear neutral but are applied in a way that targets specific messages are treated as content-based. Always check both the text and the application of the law.
Revision Tip
On the MBE, if a law singles out speech because of its message or viewpoint, immediately consider strict scrutiny and likely invalidity.
Summary
Content-based regulation of protected expression is almost always unconstitutional unless it falls within a narrow category of unprotected speech or survives strict scrutiny. Overbroad or vague laws are also invalid. Prior restraints are highly disfavored. Always identify whether a law is content-based or content-neutral before applying the correct standard.
Key Point Checklist
This article has covered the following key knowledge points:
- Content-based regulations of protected speech are subject to strict scrutiny.
- Strict scrutiny requires a compelling interest and narrow tailoring.
- Only certain categories of speech (obscenity, incitement, fighting words, true threats, defamation) are unprotected.
- Overbroad or vague laws regulating speech are unconstitutional.
- Prior restraints are almost always invalid.
- Content-neutral regulations are reviewed under intermediate scrutiny.
- Always check both the wording and application of a law for content-based targeting.
Key Terms and Concepts
- Content-Based Regulation
- Strict Scrutiny
- Unprotected Speech
- Overbreadth Doctrine
- Vagueness Doctrine
- Prior Restraint
