PastPaperHero | Individual rights - First Amendment freedoms

Learning Outcomes

This article explains core First Amendment freedoms as tested on the MBE, including:

Distinguishing content-based from content-neutral regulations, classifying the speech involved, and selecting the correct strict, intermediate, or rational basis scrutiny.
Identifying fully protected, less-protected, and unprotected categories of speech—such as political, commercial, and obscene expression—and predicting when restrictions are likely to be upheld or struck down.
Applying forum analysis to public, designated, limited, and nonpublic forums and evaluating the validity of time, place, and manner restrictions in each setting.
Recognizing facial and as-applied prior restraints, and spotting statutes that are vague, overbroad, or grant licensing officials unfettered discretion.
Distinguishing government action from private conduct, including when heavily regulated private entities or government-funded programs are treated as state actors.
Analyzing expressive conduct, government speech, and compelled speech problems, and determining when intermediate scrutiny or strict scrutiny governs.
Applying the Free Exercise and Establishment Clauses to exam-style fact patterns involving neutral laws of general applicability, religious exemptions, and alleged government endorsement of religion.
Evaluating speech restrictions on public employees and in schools, balancing government interests in efficiency and order against individual constitutional rights.
Spotting classic MBE traps involving viewpoint discrimination, disguised content-based regulations, and misclassification of forums or levels of scrutiny.

MBE Syllabus

For the MBE, you are required to understand First Amendment protections for speech, religion, press, assembly, and petition, with a focus on the following syllabus points:

Government regulation of speech: content-based vs. content-neutral; levels of scrutiny.
Unprotected and less-protected speech (obscenity, incitement, fighting words, true threats, defamation, commercial speech).
Time, place, and manner restrictions and forum analysis (public, designated, limited, and nonpublic forums).
Prior restraints, licensing schemes, vagueness, overbreadth, and unfettered discretion.
Expressive conduct and symbolic speech; government speech and compelled speech.
Free Exercise and Establishment Clauses, including neutral laws of general applicability and the Lemon test.
The state action requirement and its limited exceptions; speech of government employees and in schools.

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.

Which of the following is most likely to be struck down as a violation of the First Amendment?
1. A law banning all speech in a public park between 10 p.m. and 6 a.m.
2. A law prohibiting speech critical of government officials.
3. A law requiring permits for parades, regardless of message.
4. A law banning loudspeakers within 100 feet of a hospital.
Which category of speech receives no First Amendment protection?
1. Political speech.
2. Commercial speech that is false or misleading.
3. Artistic expression.
4. Speech critical of the judiciary.
A city bans all demonstrations in front of government buildings, regardless of topic. What level of scrutiny applies?
1. Strict scrutiny.
2. Rational basis.
3. Intermediate scrutiny (time, place, and manner).
4. No scrutiny; the ban is valid.
The Free Exercise Clause most strongly protects which of the following?
1. Religious belief.
2. All conduct motivated by religion.
3. Refusal to pay taxes for religious reasons.
4. Use of illegal drugs in religious ceremonies, if the law is neutral.
A state university opens meeting rooms for student groups on a first-come, first-served basis, then denies a student debate on affirmative action because it “might cause friction.” This restriction is:
1. Content-neutral and valid if reasonable.
2. Content-based and presumptively invalid under strict scrutiny.
3. A valid exercise of academic freedom subject only to rational basis.
4. Government speech not governed by the First Amendment.

Introduction

The First Amendment protects freedom of speech, religion, press, assembly, and petition. These rights are central to democratic self-government but are not absolute. The government may regulate speech and religion under defined conditions, and the applicable standard of review depends on:

The type of speech (e.g., political vs. commercial vs. obscenity).
The nature of the regulation (content-based vs. content-neutral).
The forum in which the speech occurs (public streets vs. government workplace).
Whether the restriction targets belief, religiously motivated conduct, or religious institutions.
Whether the restriction is imposed by the government (state action) or a private party.

On the MBE, the key to most First Amendment problems is to:

Confirm that there is state action.
Classify the speech (protected vs. unprotected).
Classify the regulation (content-based vs. content-neutral).
Identify the forum (for speech on government property).
Apply the correct level of scrutiny.

Key Term: State Action
Conduct by the government or its agents. The First Amendment restricts only state action, not purely private conduct, except in rare situations where a private actor performs a function traditionally and exclusively reserved to the state or is heavily intertwined with the government.

Types of Speech and Levels of Protection

Speech is generally protected unless it falls into a category that receives less or no protection. The main categories are:

Fully protected speech: Core political speech, criticism of government, artistic and scientific expression, and most noncommercial public debate. Content-based regulations here trigger strict scrutiny.
Less-protected speech: Truthful commercial speech and some expressive conduct. Restrictions are subject to intermediate scrutiny.
Unprotected speech: Obscenity, incitement to imminent lawless action, fighting words, true threats, and certain defamation. The government may prohibit these categories entirely, but it must still avoid viewpoint discrimination and undue vagueness.

Key Term: Strict Scrutiny
The most demanding standard of review. A law must be narrowly tailored (necessary or the least restrictive means) to achieve a compelling governmental interest. Used for content-based regulation of protected speech and for laws targeting religious beliefs or practices.

Key Term: Intermediate Scrutiny
A law must be substantially or narrowly tailored to serve an important or significant governmental interest and leave open adequate alternatives. Used for content-neutral time, place, and manner restrictions and for most regulation of truthful commercial speech.

Key Term: Rational Basis Review
The most deferential standard of review. A law will be upheld if it is rationally related to a legitimate governmental interest. Applied to neutral, generally applicable laws that incidentally burden religion and to most regulations not affecting fundamental rights or suspect classes.

Unprotected and Less-Protected Speech

Certain types of speech are not protected or are protected only weakly:

Key Term: Obscenity
Depictions of sexual conduct that (1) appeal to the prurient interest (community standard), (2) are patently offensive as defined by state law (community standard), and (3) lack serious literary, artistic, political, or scientific value (national reasonable person standard).

Key Term: Incitement
Advocacy of lawless action that is intended to produce, and is likely to produce, imminent lawless action. Mere advocacy of abstract ideas is protected; incitement of immediate violence or crime is not.

Key Term: Fighting Words
Personally abusive epithets directed at a particular person, likely to provoke an immediate violent reaction. In theory unprotected, but modern statutes punishing “fighting words” often fail on vagueness or viewpoint discrimination grounds.

Key Term: True Threat
A serious expression of intent to commit unlawful violence to a particular person or group, made to intimidate or place the target in fear of bodily harm.

Key Term: Defamation
False statements of fact about a living person that harm reputation. When the plaintiff is a public official or public figure, the First Amendment requires proof of “actual malice” (knowledge of falsity or reckless disregard for the truth) even in civil suits.

Key Term: Commercial Speech
Expression that proposes a commercial transaction or relates solely to the economic interests of the speaker and audience, such as advertisements. Truthful, non-misleading commercial speech about lawful activity receives intermediate protection; false or misleading commercial speech is unprotected.

False or misleading commercial speech can be prohibited entirely. Truthful commercial speech may be regulated under a mid-level test (often called the Central Hudson test):

The speech concerns lawful activity and is not misleading.
The government has a substantial interest.
The regulation directly advances that interest.
The regulation is no more extensive than necessary (a reasonable fit).

Content-Based vs. Content-Neutral Regulation

Key Term: Content-Based Regulation
A law that restricts speech because of its subject matter or the message expressed. This includes viewpoint discrimination (favoring one side of a debate). Such regulations of protected speech are subject to strict scrutiny and are usually invalid.

Key Term: Content-Neutral Regulation
A law that regulates speech without regard to the message, typically by controlling the time, place, or manner of expression. Subject to intermediate scrutiny if it burdens speech in a public forum.

Viewpoint discrimination is an especially disfavored form of content-based regulation. The government may not favor one side within a subject (e.g., allowing pro-war but not anti-war speech).

Even a regulation that appears facially neutral can be treated as content-based if:

It applies only to particular topics (e.g., prohibiting “all demonstrations about abortion”), or
It is enforced in a way that targets certain viewpoints (e.g., selectively enforcing noise rules against protesters critical of the mayor).

Key Term: Viewpoint Discrimination
A form of content-based regulation where the government favors or disfavors particular opinions within a broader subject matter. Almost always invalid.

When you see a law that singles out speech because of what is being said, apply strict scrutiny. The government’s interest in avoiding offense, upsetting debate, or dampening controversy is not compelling.

Forum Analysis and Time, Place, and Manner Restrictions

Where speech takes place on government property matters. The level of protection changes with the type of forum.

Key Term: Public Forum
Government property that has traditionally been open to public expression, such as streets, sidewalks, and public parks.

Key Term: Designated Public Forum
Government property that the government has intentionally opened for expressive activity by the public or by certain speakers, such as a university auditorium open to student groups.

Key Term: Limited Public Forum
Government property open for expression only by certain groups or for discussion of specific subjects, like a school board meeting open for comment on school business or a law school’s email list limited to student organizations.

Key Term: Nonpublic Forum
Government property that is not by tradition or designation a forum for public communication, such as military bases, airport terminals, or internal mail systems.

Key Term: Time, Place, and Manner Restriction
A content-neutral regulation of when, where, or how speech may occur. Valid only if it serves an important governmental interest, is narrowly tailored, and leaves open adequate alternative channels of communication.

In traditional public forums and designated public forums, the test for content-neutral time, place, and manner restrictions is:

Content neutral (on its face and in application).
Narrowly tailored to serve a significant or important government interest (e.g., traffic safety, noise control).
Leaves open ample alternative channels for communication.

In limited public forums and nonpublic forums, the government may reserve the forum for its intended use, so long as restrictions are:

Reasonable in light of the forum’s purpose, and
Viewpoint neutral.

A blanket ban on all demonstrations in front of any government building is a regulation of conduct in a government-controlled space. It is usually analyzed as a content-neutral time, place, and manner restriction and subject to intermediate scrutiny, not strict scrutiny, unless it targets specific topics.

Time, Place, and Manner Restrictions

The government may impose reasonable time, place, and manner restrictions on speech in public forums if:

The regulation is content-neutral.
It serves a significant government interest (such as safety, order, or residential privacy).
It is narrowly tailored (not substantially more burdensome than necessary).
It leaves open alternative channels for communication.

Examples likely to be upheld:

Limiting amplified sound near hospitals at night.
Requiring permits for parades using public streets, if the permit scheme has objective criteria and no unfettered discretion.
Banning targeted picketing directly in front of a single residence while allowing marches through the neighborhood.

Key Term: Unfettered Discretion
A defect in a licensing or permit scheme that grants officials unlimited or vague discretion to permit or deny expressive activity. Such schemes are unconstitutional because they invite content and viewpoint discrimination.

If a statute or ordinance gives an official discretion to deny speech whenever it is “in the public interest” or “good order requires it,” it is likely invalid on its face.

Prior Restraints, Vagueness, and Overbreadth

Key Term: Prior Restraint
A governmental order or system that prohibits speech before it occurs, such as injunctions, licensing schemes, or censorship boards. Strongly disfavored and valid only in exceptional cases with compelling justification and procedural safeguards.

Prior restraints (e.g., injunctions forbidding publication) are almost always unconstitutional unless:

There is a special, compelling interest (e.g., troop movements in wartime, truly obscene films after full adversary hearing), and
The restraint includes strict procedural safeguards (prompt and final judicial review, burden on the government, narrowly drawn order).

Key Term: Overbreadth
A law is overbroad if it prohibits a substantial amount of protected speech, judged in relation to the law’s plainly legitimate sweep. Overbroad laws are facially invalid under the First Amendment.

Key Term: Vagueness
A law is vague if persons of common intelligence must guess at its meaning. Vague laws violate due process and chill speech because people cannot tell what is prohibited.

Overbreadth and vagueness often appear together in speech statutes using imprecise terms like “annoying,” “offensive,” or “immoral” without clear definitions.

Expressive Conduct and Symbolic Speech

Key Term: Expressive Conduct
Conduct that is intended to communicate a message and is likely to be understood by observers as conveying that message (e.g., burning a flag, wearing an armband in protest).

Regulations of expressive conduct are analyzed under a form of intermediate scrutiny. A content-neutral regulation of conduct that incidentally burdens expression is valid if:

The regulation is within the government’s constitutional power.
It furthers an important or substantial government interest.
The interest is unrelated to the suppression of expression.
The incidental restriction on expression is no greater than essential to further that interest.

Burning a draft card can be prohibited because the law protects the government’s interest in maintaining the draft system, not the message conveyed. Burning the U.S. flag, however, when prohibited because of the message, is a content-based restriction and usually invalid.

Government Speech and Compelled Speech

Key Term: Government Speech
Expression by the government itself. The Free Speech Clause limits regulation of private speech; it does not require viewpoint neutrality in the government’s own speech or funding choices, subject to other constitutional limits (e.g., Establishment Clause).

The government may:

Advance its own policies (e.g., “Don’t smoke” campaigns).
Fund certain private messages while refusing to fund others that conflict with its programs, so long as it does not condition funding on private speakers adopting the government’s viewpoint outside the program.

Key Term: Compelled Speech
Government action that forces private individuals or groups to express a particular message or engage in expressive conduct they disagree with. Compelled speech is generally forbidden by the First Amendment.

Examples:

Students cannot be forced to salute the flag or recite the Pledge of Allegiance in public schools.
A private parade organizer cannot be required to include groups whose message it does not wish to convey.

Mandatory fees to support genuinely government speech (e.g., bar dues funding regulatory functions) are usually permissible, but compulsory support of private expressive associations raises First Amendment issues.

Speech by Government Employees and in Schools

Public employees do not lose all First Amendment rights, but their speech can be regulated more than that of ordinary citizens.

Key Term: Public Employee Speech
Speech by government employees. When made pursuant to official duties, it is not protected by the First Amendment; when made as a citizen on a matter of public concern, it is protected subject to a balancing test.

Key rules:

Speech made in the course of official duties (e.g., internal reports) is not protected from employer discipline.
Speech as a citizen on matters of public concern (e.g., letter to the editor about public funding) is protected unless the employee’s interest is outweighed by the government’s interest in efficient operation.

In public schools, student speech may be limited if reasonably related to legitimate pedagogical concerns or to prevent substantial disruption, but schools may not punish students solely to avoid controversy or suppression of unpopular viewpoints.

Freedom of Religion

The First Amendment protects religious freedom through the Free Exercise and Establishment Clauses.

Key Term: Free Exercise Clause
The constitutional provision prohibiting government from punishing or targeting individuals or groups because of their religious beliefs or practices.

Key Term: Establishment Clause
The constitutional provision prohibiting government from establishing a religion, favoring one religion over another, or favoring religion over nonreligion.

Free Exercise: Belief vs. Conduct

The Free Exercise Clause absolutely protects the freedom to believe or not believe; the government may not:

Compel affirmation of religious belief.
Penalize belief or disbelief.
Decide whether beliefs are true.

However, religiously motivated conduct is treated differently:

Key Term: Neutral Law of General Applicability
A law that applies to everyone regardless of religion and does not target religion on its face or in purpose. Such laws are reviewed under rational basis even if they incidentally burden religious practice.

Neutral, generally applicable laws (e.g., drug laws, fire codes, autopsy requirements) may be enforced despite religious objections. No religious exemptions are constitutionally required, although legislatures may create statutory exemptions.

If a law targets religion (e.g., explicitly singles out religious practices, or officials display hostility toward religion), strict scrutiny applies. The government must show the law is necessary to achieve a compelling interest and is narrowly tailored.

Establishment Clause: Endorsement and Entanglement

When the government appears to endorse religion, courts traditionally apply the Lemon test in the absence of a sect preference.

If the government favors one religious denomination over others (sect preference), strict scrutiny applies and the action is almost always invalid.
If there is no sect preference, the government action must:
1. Have a secular legislative purpose.
2. Have a primary effect that neither advances nor inhibits religion.
3. Avoid excessive government entanglement with religion.

Examples that typically violate the Establishment Clause:

Official prayers or Bible readings in public schools, even if participation is nominally voluntary.
Statutes granting monetary or tax benefits only to religious publications.
Delegating governmental power (such as zoning decisions) to religious bodies.

Examples often upheld:

Providing secular textbooks or transportation to students at religious and nonreligious schools alike.
Generally available benefits (e.g., college grants or vouchers) that reach religious schools only through private choice.
Incidental religious symbols in broader secular displays, depending on context.

Government vs. Private Action

The First Amendment restricts only government action.

Private parties, including private employers and private universities, are not bound by the Free Speech Clause unless:

They are performing a traditional and exclusive public function (e.g., running an entire town, sometimes running an election), or
The government is significantly involved such that the private entity’s conduct can fairly be attributed to the state (e.g., deliberate joint participation, coercion).

Extensive regulation or licensing of a private business is not enough by itself to make its actions state action. A heavily regulated private insurance company’s hiring decisions, for example, are not subject to First Amendment limits.

Worked Example 1.1

A city passes a law banning all demonstrations critical of government policy in public parks. Is this law likely to be upheld?

Answer:
No. Public parks are traditional public forums. The law is content-based because it singles out speech critical of government policy. It is also viewpoint-discriminatory, as it disfavors only criticism, not praise. Content-based restrictions in a public forum must satisfy strict scrutiny: the city must show the law is narrowly tailored to achieve a compelling interest. Avoiding criticism or unrest is not compelling. The law is unconstitutional.

Worked Example 1.2

A state requires permits for all parades, regardless of the message, and limits them to certain hours to reduce traffic. The permit scheme uses objective criteria such as route, expected size, and conflict with previously scheduled events. Is this valid?

Answer:
Yes, if applied as described. The permit requirement regulates the time, place, and manner of parades in public streets and is content-neutral because it applies to all messages. Reducing congestion and maintaining safety are significant government interests. The hours and permit criteria must be narrowly tailored and leave open alternative channels (e.g., other times, routes). Absent unfettered discretion or discriminatory enforcement, this is a valid time, place, and manner restriction subject to and satisfying intermediate scrutiny.

Worked Example 1.3

A religious group challenges a neutral law banning all use of peyote, claiming a right to use it in ceremonies. Does the Free Exercise Clause protect them?

Answer:
No, assuming the law truly is neutral and generally applicable. The law applies to everyone regardless of religion and targets a harmful drug, not religious practice. Under the Free Exercise Clause, neutral laws of general applicability are reviewed under rational basis even if they incidentally burden religious practices. The state’s interest in controlling dangerous drugs is legitimate. The Clause does not require a religious exemption in this situation.

Worked Example 1.4

A state university allows student groups to reserve rooms on a first-come, first-served basis. It denies a request by law students to hold a debate on affirmative action because administrators fear the debate will “harm morale and cause friction.” Is the denial constitutional?

Answer:
No. By opening rooms to student groups, the university has created a designated or limited public forum for student speech. Denying use because of the topic and anticipated reaction is content-based and aimed at the communicative impact of the speech. Content-based restrictions in such a forum are subject to strict scrutiny. Avoiding controversy or “friction” is not a compelling interest. The denial violates the First Amendment.

Worked Example 1.5

A city ordinance requires a license for public rallies and authorizes the mayor to deny a license whenever she believes a rally would be “contrary to public morals or good order.” Is this licensing scheme valid?

Answer:
No. The ordinance grants unfettered discretion to deny licenses based on vague criteria like “public morals” or “good order,” which invite content and viewpoint discrimination. Licensing schemes for expressive activity must contain narrow, objective, and definite standards and provide procedural safeguards (e.g., prompt review). This ordinance is void on its face as an unconstitutional prior restraint and for vagueness.

Exam Warning

Laws that appear neutral but are applied in a way that targets specific viewpoints are treated as content-based and are subject to strict scrutiny. Always check both the text and the application of the law. Similarly, do not assume state action exists simply because a private entity is heavily regulated; look for public function or close governmental involvement.

Revision Tip

On the MBE, first identify whether the regulation is content-based or content-neutral and what forum is involved. Then classify the speech (protected vs. unprotected) and apply the corresponding level of scrutiny. This sequence prevents being misled by distractors that skip directly to outcomes.

Key Point Checklist

This article has covered the following key knowledge points:

The First Amendment protects speech, religion, press, assembly, and petition, but not all speech is equally protected.
Content-based regulations (especially viewpoint discrimination) are subject to strict scrutiny and are usually invalid.
Content-neutral time, place, and manner restrictions in public forums are subject to intermediate scrutiny: they must be narrowly tailored, serve a significant interest, and leave open ample alternatives.
Forum analysis (public, designated, limited, nonpublic) determines how speech regulations on government property are evaluated.
Unprotected speech includes obscenity, incitement, fighting words, true threats, and certain defamation; less-protected speech includes commercial speech and expressive conduct.
Truthful commercial speech may be regulated under intermediate scrutiny; false or misleading commercial speech receives no protection.
Prior restraints, vague statutes, overbroad laws, and licensing schemes with unfettered discretion are almost always unconstitutional.
Expressive conduct is protected when intended to convey a message understood by observers; regulations are valid only if they further important interests unrelated to suppressing expression.
The Free Exercise Clause absolutely protects religious belief and applies strict scrutiny to laws targeting religion, but neutral, generally applicable laws that incidentally burden religious practice are reviewed under rational basis.
The Establishment Clause prohibits government endorsement of religion, sect preferences, and excessive entanglement; many government benefits are permissible if neutrally available and secular in purpose.
The First Amendment applies only to government action. Private conduct is not covered unless the private actor performs a traditional public function or is closely intertwined with the state.
Government speech is not subject to free-speech scrutiny, but the government generally may not compel private individuals or groups to adopt or express particular messages.
Public employees’ speech is limited when made pursuant to official duties; as citizens speaking on matters of public concern, they receive protection subject to a balancing test.

Key Terms and Concepts

State Action
Strict Scrutiny
Intermediate Scrutiny
Rational Basis Review
Content-Based Regulation
Content-Neutral Regulation
Viewpoint Discrimination
Public Forum
Designated Public Forum
Limited Public Forum
Nonpublic Forum
Time, Place, and Manner Restriction
Unfettered Discretion
Prior Restraint
Overbreadth
Vagueness
Obscenity
Incitement
Fighting Words
True Threat
Defamation
Commercial Speech
Expressive Conduct
Government Speech
Compelled Speech
Free Exercise Clause
Establishment Clause
Neutral Law of General Applicability
Public Employee Speech

Individual rights - First Amendment freedoms