Individual rights - Freedom of expression

Learning Outcomes

After reading this article, you will be able to identify the constitutional rules governing freedom of expression, distinguish between protected and unprotected speech, and apply the correct legal tests for content-based and content-neutral regulations. You will also understand the requirements for valid time, place, and manner restrictions, and recognize when government action violates the First Amendment—key for answering MBE questions.

MBE Syllabus

For MBE, you are required to understand the constitutional principles protecting freedom of expression and the limits on government regulation of speech. This includes recognizing the difference between content-based and content-neutral restrictions, identifying unprotected categories of speech, and applying the correct standards of review. You should be able to:

  • Distinguish between content-based and content-neutral regulations of speech.
  • Identify categories of unprotected or less-protected speech (e.g., obscenity, defamation, incitement, fighting words, commercial speech).
  • Apply the correct standard of review for each type of regulation (strict scrutiny, intermediate scrutiny, rational basis).
  • Analyze the requirements for valid time, place, and manner restrictions.
  • Recognize the rules for prior restraints, vagueness, and overbreadth.
  • Determine when government action constitutes a violation of the First Amendment.

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.

  1. A city ordinance bans all demonstrations in public parks during weekends, regardless of the topic. Is this regulation:
    1. Content-based and subject to strict scrutiny
    2. Content-neutral and subject to intermediate scrutiny
    3. A prior restraint and automatically invalid
    4. Unconstitutional because it is overbroad
  2. Which of the following is NOT protected by the First Amendment?
    1. Political protest in a public square
    2. Truthful commercial advertising
    3. Incitement of imminent lawless action
    4. Satirical cartoons criticizing public officials
  3. A state law prohibits the publication of any material that “annoys or disturbs” others. What is the strongest constitutional objection?
    1. The law is a prior restraint
    2. The law is vague and overbroad
    3. The law is not rationally related to a legitimate interest
    4. The law is a content-neutral regulation
  4. The government requires all parade organizers to obtain a permit, but the permit may be denied if the official “dislikes the message.” What is the main constitutional flaw?
    1. The law is not narrowly tailored
    2. The law is content-based and gives unfettered discretion
    3. The law is a reasonable time, place, and manner restriction
    4. The law is a valid prior restraint

Introduction

Freedom of expression is a core individual right protected by the First Amendment and applied to the states through the Fourteenth Amendment. The government may not restrict speech or expressive conduct unless it meets strict constitutional standards. However, not all speech is protected, and some regulations are permitted if they satisfy the correct legal tests. Understanding these distinctions is essential for MBE success.

Categories of Speech and Standards of Review

Government regulation of speech is analyzed based on whether the restriction is content-based or content-neutral.

  • Content-based regulation targets the subject matter or viewpoint of speech. These are subject to strict scrutiny: the government must prove the law is necessary to achieve a compelling interest and is narrowly tailored.
  • Content-neutral regulation controls the time, place, or manner of speech without regard to content. These are reviewed under intermediate scrutiny: the law must be narrowly tailored to serve a significant government interest and leave open ample alternative channels for communication.

Key Term: Content-Based Regulation A law that restricts speech based on its subject matter or viewpoint, triggering strict scrutiny under the First Amendment.

Key Term: Content-Neutral Regulation A law that regulates speech without reference to its content, typically through time, place, or manner restrictions, and reviewed under intermediate scrutiny.

Unprotected and Less Protected Speech

Certain categories of speech receive no or reduced constitutional protection:

  • Obscenity: Material that meets the three-part Miller test (prurient interest, patently offensive sexual conduct, and lacking serious value) is unprotected.
  • Defamation: False statements damaging to reputation may be regulated, with additional requirements for public figures or matters of public concern.
  • Incitement: Advocacy intended and likely to produce imminent lawless action can be prohibited.
  • Fighting words: Personally abusive epithets likely to provoke immediate violence are not protected.
  • Commercial speech: Truthful commercial speech is protected but subject to intermediate scrutiny; false or misleading commercial speech is unprotected.

Key Term: Obscenity Speech or material that appeals to prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.

Key Term: Incitement Advocacy of illegal action that is intended and likely to produce imminent lawless conduct.

Key Term: Fighting Words Personally abusive language likely to provoke an immediate violent response, not protected by the First Amendment.

Key Term: Commercial Speech Expression proposing a commercial transaction; protected if truthful and lawful, but subject to greater regulation than political speech.

Time, Place, and Manner Restrictions

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

  1. The regulation is content-neutral on its face and as applied.
  2. It is narrowly tailored to serve a significant government interest.
  3. It leaves open ample alternative channels for communication.

Key Term: Time, Place, and Manner Restriction A content-neutral regulation limiting when, where, or how speech occurs, valid if it meets intermediate scrutiny and preserves alternative means of expression.

Key Term: Prior Restraint Government action that prohibits speech before it occurs, presumptively unconstitutional unless justified by a compelling interest and narrow tailoring.

Key Term: Vagueness A law is void for vagueness if people of common intelligence must guess at its meaning and may differ as to its application.

Key Term: Overbreadth A law is overbroad if it prohibits a substantial amount of protected speech in addition to unprotected speech.

Prior Restraints, Vagueness, and Overbreadth

  • Prior restraints (e.g., licensing schemes or injunctions prohibiting speech before it occurs) are strongly disfavored and almost always invalid unless the government meets a heavy burden.
  • Vague laws fail to give clear notice of what is prohibited and are unconstitutional.
  • Overbroad laws prohibit a substantial amount of protected speech along with unprotected speech and are invalid.

Key Term: Prior Restraint Government action that prohibits speech before it occurs, presumptively unconstitutional unless justified by a compelling interest and narrow tailoring.

Key Term: Vagueness A law is void for vagueness if people of common intelligence must guess at its meaning and may differ as to its application.

Key Term: Overbreadth A law is overbroad if it prohibits a substantial amount of protected speech in addition to unprotected speech.

Forums and Government Property

  • Traditional public forums (e.g., streets, parks) are open for expressive activity and subject to the time, place, and manner rules above.
  • Designated public forums are government spaces opened for speech by policy.
  • Limited or nonpublic forums (e.g., government offices, schools, military bases) may be regulated if restrictions are reasonable and viewpoint-neutral.

Worked Example 1.1

A city bans all political demonstrations in public parks on weekends to reduce noise. The ordinance applies to all topics and groups. Is this regulation likely constitutional?

Answer: Yes, if the ban is content-neutral, narrowly tailored to serve a significant interest (e.g., noise control), and leaves open alternative channels (e.g., demonstrations on weekdays or in other locations). The regulation must not discriminate based on message.

Worked Example 1.2

A state law prohibits "annoying or disturbing" speech in public places. A protester is arrested for criticizing government officials. Is the law valid?

Answer: No. The law is unconstitutionally vague and overbroad. It fails to give clear notice of what is prohibited and risks suppressing protected speech.

Worked Example 1.3

A city requires a permit for parades but allows officials to deny permits if they "dislike the message." Is this scheme constitutional?

Answer: No. Permit schemes must have objective, narrow criteria and cannot give officials unfettered discretion or allow content-based denials.

Exam Warning

Laws that appear content-neutral on their face may be content-based as applied. Always check whether the regulation targets specific messages or viewpoints, which triggers strict scrutiny.

Revision Tip

When analyzing a speech restriction, first determine if it is content-based or content-neutral, then apply the correct standard of review. Remember that unprotected speech categories are narrowly defined.

Key Point Checklist

This article has covered the following key knowledge points:

  • Freedom of expression is protected by the First Amendment and applies to the states.
  • Content-based regulations are subject to strict scrutiny; content-neutral regulations are reviewed under intermediate scrutiny.
  • Certain speech (obscenity, defamation, incitement, fighting words, false commercial speech) is unprotected or less protected.
  • Valid time, place, and manner restrictions must be content-neutral, narrowly tailored, and leave open alternative channels.
  • Prior restraints, vague, and overbroad laws are presumptively invalid.
  • Permit schemes must have objective, narrow criteria and cannot allow unfettered discretion.
  • Public forums are open for speech; limited/nonpublic forums may be regulated if restrictions are reasonable and viewpoint-neutral.

Key Terms and Concepts

  • Content-Based Regulation
  • Content-Neutral Regulation
  • Obscenity
  • Incitement
  • Fighting Words
  • Commercial Speech
  • Time, Place, and Manner Restriction
  • Prior Restraint
  • Vagueness
  • Overbreadth
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