Analyzing free speech problems can be complicated, because there are a number of different tests that might apply to the analysis, and which test applies will depend on the circumstances. The key to analyzing free speech problems is identifying, and correctly applying, the appropriate test. This flow chart is designed to methodically walk you through the different tests so as to identify the appropriate one to apply in a given case.
Note that, before walking through the analysis, you first must determine that the activity the law regulates is expressive activity that is protected by the First Amendment.
The different tests that apply to free speech problems, and the circumstances in which they apply, are as follows (use these rules in conjunction with the flow chart):
Strict Scrutiny: Strict scrutiny applies to content-based regulations – those that penalize the content of the speech (for example, a law that prohibits speech that criticizes the government). Under this test, the government must prove that the regulation is necessary, and narrowly tailored, to serve a compelling government interest.
Intermediate Scrutiny: Intermediate scrutiny applies to content-neutral regulations that do not fall under any other category below (e.g., a time, place, and manner restriction of speech in a public forum – see below). Under this test, the government must prove that the law (1) is narrowly tailored to serve an important government interest; (2) is unrelated to the suppression of speech; and (3) does not burden any more speech than necessary to serve the interest.
Prior Restraints: Prevent speech from occurring before it takes place. Disfavored and normally not upheld.
Unreasonable Restrictions: A restriction is unreasonable if it (1) is vague (meaning that it is not clear what the law prohibits and what it permits); (2) is overbroad (meaning that it prohibits both protected and unprotected speech); or (3) gives the government unfettered discretion in enforcing the law.
Speech that Is Unprotected or Received Limited Protection:
- Fighting Words
The government can prohibit fighting words, which are defined as or expression that is likely to incite an immediate physical retaliation.
- Incitement (Clear & Present Danger)
The government can prohibit incitement, which is defined as speech or expression that is directed to, and is likely to produce or incite imminent lawless action.
- Obscenity
The government can prohibit obscenity, which is defined as speech or expression that (1) appeals to the prurient interest in sex; (2) is patently offensive (using a local community standard); and (3) objectively lacks serious literary, artistic, political, or scientific value (using a national standard).
- Commercial Speech:
The government may prohibit false advertising. Otherwise, a regulation on commercial speech is valid if it is narrowly tailored to serve, and directly advances, a substantial government interest.
- Speech in a Traditional or Designated Public Forum:
An all-purpose (or traditional) public forum is government-owned property that is traditionally open to speech activity (e.g., parks and sidewalks). A designated public forum is government-owned property that is typically not open to the public, but which the government has opened up to the public for a particular time frame (e.g., a high school gymnasium or classroom after school hours). A speech restriction in a designated or all-purpose public forum must (1) be content neutral; (2) be narrowly tailored to serve an important government interest; and (3) leave open alternative channels of speech.
- Speech in a Limited Public Forum/Nonpublic Forum:
A limited public forum is government-owned property that is typically not open to the public, but which the government has opened up for speech activity (e.g., a city may open up an auditorium for debate on a new zoning ordinance). A nonpublic forum is government-owned property that is generally not open to the public (e.g., the offices in the west wing of the White House). Regulation of speech (even content based regulation) is allowed as long as the regulation is (1) viewpoint neutral; and (2) reasonably related to a legitimate government interest.