Free Speech & the First Amendment
The First Amendment to the U.S. Constitution boldly declares that Congress shall make no law abridging "the freedom of speech." It’s a cornerstone of American democracy, a promise that citizens can speak their minds without fear of government censorship. But as foundational as this right is, it’s not absolute.
The Free Speech Clause has boundaries, nuances, and complexities that courts have been navigating for decades. So, what does it really protect, and where does it draw the line? Let’s break it down.
What Does the First Amendment Protect?
At its core, the Free Speech Clause restricts the government from regulating private speech. This means laws, policies, or actions that limit what individuals or organizations can say are subject to constitutional scrutiny. But the amendment doesn’t apply to everything:
Private entities like corporations, social media platforms, or private universities can restrict speech without violating the First Amendment, as it only constrains government action.
Government speech—when the government itself speaks, such as through public service announcements—doesn’t fall under the same restrictions.
Compelled speech, where the government forces someone to convey a specific message, can also raise First Amendment concerns, as can laws that burden speech indirectly, like tying government benefits to speech restrictions.
The concept of "speech" itself is broad. It includes not just spoken or written words but also expressive conduct—like burning a flag in protest—photographs, videos, and even editorial decisions about what to publish. If an action conveys a message and is likely to be understood by others, it’s often considered speech under the First Amendment.
When Is Speech Protected, and When Isn’t It?
Most private speech is considered "protected," meaning any government regulation of it must pass constitutional muster. However, the Supreme Court has carved out narrow categories of "unprotected" speech, such as defamation, fraud, or incitement to violence. These can generally be regulated without issue, but even here, the government must tread carefully. For example, a law targeting unprotected speech like "fighting words" was struck down in R.A.V. v. City of St. Paul (1992) because it only prohibited those words when they insulted based on race, religion, or gender—a content-based restriction that violated the First Amendment.
The distinction between speech and non-expressive conduct matters too. A law regulating conduct, like a ban on public gatherings, might not trigger First Amendment scrutiny unless it disproportionately burdens speech. Meanwhile, laws that "chill" speech—making people hesitant to speak due to vague or overbroad rules—can also raise constitutional red flags.
How Do Courts Evaluate Free Speech Challenges?
There’s no universal test for whether a speech regulation complies with the First Amendment. Courts rely on a patchwork of legal standards shaped by over 80 years of Supreme Court precedent. The analysis often hinges on a few key questions:
Is the government regulating speech or conduct? If it’s conduct with no expressive element, the First Amendment might not apply. If it’s speech or expressive conduct, scrutiny kicks in.
Is the speech protected or unprotected? Unprotected speech gets less protection, but even then, regulations must avoid targeting specific viewpoints.
Is the regulation content-based or content-neutral? Content-based laws (those targeting specific topics or viewpoints) face strict scrutiny, a tough standard to meet. Content-neutral laws, like restrictions on the time, place, or manner of speech, typically face intermediate scrutiny, which is less demanding.
What’s the context? Speech in schools, by public employees, or on government property often follows specific legal tests tailored to those settings.
Tiers of Scrutiny
Courts use "tiers of scrutiny" to evaluate speech regulations. Law students struggle with this concept and it is not always clear what level of scrutiny applies. To translate, the term scrutiny really means protection in the sense that the higher level of scrutiny applied to a speech limitation the more likely the limitation will be struck down.
Strict scrutiny applies to content-based restrictions on protected speech. The government must show a compelling interest and that the law is narrowly tailored to achieve that interest. Few laws survive this test.
Intermediate scrutiny applies to content-neutral regulations or commercial speech (like advertisements). The government needs a substantial interest, and the law must be reasonably tailored to serve it.
Rational basis review, the lowest standard, applies to non-speech conduct or unprotected speech. The government only needs a legitimate reason for the law. Rational basis laws generally affect the public welfare but do not directly affect any constitutional rights. In other words, Congress can make almost any stupid law it wants as long as that law does not violate the United States Constitution.
Facial vs. As-Applied Challenges
Free speech challenges can be "facial" (arguing the law is unconstitutional in all cases) or "as-applied" (arguing it’s unconstitutional in a specific instance). Litigants might also claim a law is overbroad (sweeping in too much protected speech), vague (unclear in its scope), or a prior restraint (censoring speech before it happens). Each claim has its own legal framework, adding layers to the analysis.
Time, Place, and Manner Restrictions: A Narrow Design
Even constitutionally protected speech can limited.
This is because not all speech regulations aim to control what’s said; some focus on when, where, or how speech happens. These are known as time, place, and manner restrictions, and they’re often content-neutral, meaning they don’t target the message itself.
Examples include limiting protest hours in a public park, restricting loudspeaker use in residential areas, or requiring permits for large rallies. While these rules can pass First Amendment muster, they must be carefully crafted to survive intermediate scrutiny.
Under intermediate scrutiny, time, place, and manner restrictions must meet three key requirements:
Content-Neutral: The regulation cannot favor one message over another or target speech based on its subject matter or viewpoint. For instance, a city can’t ban protests about taxes but allow those about environmental issues.
Substantial Government Interest: The government must have a significant reason for the restriction, like public safety, traffic flow, or noise control. In Ward v. Rock Against Racism (1989), the Supreme Court upheld a city’s sound amplification rules for concerts in a park because they served the substantial interest of protecting nearby residents from excessive noise.
Narrowly Tailored: The restriction must be precisely designed to serve the government’s interest without unnecessarily burdening speech. It doesn’t need to be the least restrictive option, but it can’t sweep too broadly. For example, a blanket ban on all public demonstrations would likely fail, but a rule limiting protests to specific hours or areas might pass if it leaves ample room for expression.
Additionally, these restrictions must leave open ample alternative channels for communication. If a regulation bans protests in a key public square, speakers must still have other meaningful ways to reach their audience, like nearby locations or different mediums. In Clark v. Community for Creative Non-Violence (1984), the Court upheld a ban on camping in a national park as a place restriction because protesters could still demonstrate and distribute materials nearby.
The narrow tailoring requirement ensures the government doesn’t overreach. A regulation that’s too vague or broad—say, a permit requirement with no clear criteria—risks being struck down for chilling speech. Courts look closely at whether the restriction is proportionate to the problem it aims to solve, balancing free expression with public order.
Speech Limitations in Public Schools
Public schools present a unique context for First Amendment protections, as the Supreme Court has recognized that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Tinker v. Des Moines Independent Community School District, 1969). However, schools have greater authority to regulate student speech than the government does in other settings, given their need to maintain a safe and effective educational environment. The Court has developed specific frameworks to evaluate speech restrictions in public schools, balancing student rights with administrative needs.
Tinker v. Des Moines (1969), set the standard for limits as well. Students can engage in protected speech up to a point. They can be limited if their speech substantially disrupts the school environment or interferes with the rights of others.
In Tinker, students wore armbands to protest the Vietnam War, and the Court upheld their right to do so because the protest was passive and didn’t disrupt classes. The "substantial disruption" test remains a key benchmark, requiring schools to show concrete evidence of interference, not just discomfort or disagreement.
Subsequent cases have carved out exceptions where schools have broader authority:
School-sponsored speech: In Hazelwood School District v. Kuhlmeier (1988), the Court held that schools can regulate speech in school-sponsored activities, like student newspapers, if the restrictions are reasonably related to legitimate pedagogical concerns. For example, a principal could censor an article deemed inappropriate for the school’s educational mission.
Lewd or offensive speech: In Bethel School District No. 403 v. Fraser (1986), the Court upheld discipline for a student’s sexually suggestive speech at a school assembly, emphasizing that schools can regulate vulgar or offensive speech to foster a respectful environment.
Speech promoting illegal activity: In Morse v. Frederick (2007), the Court allowed a school to punish a student for displaying a banner reading "BONG HITS 4 JESUS" at a school-supervised event, reasoning that it could be interpreted as promoting illegal drug use, which schools have a strong interest in discouraging.
These cases show that while students retain free speech rights, schools can impose restrictions based on the context, content, and impact of the speech. Importantly, regulations must be viewpoint-neutral—schools can’t punish speech just because they disagree with the message. For example, a school could limit protest activities to certain times to avoid class disruptions, but it couldn’t ban only protests about a specific political issue.
The rise of digital speech has complicated this landscape. Off-campus speech, like social media posts, can fall under school authority if it substantially disrupts the learning environment or targets members of the school community. In Mahanoy Area School District v. B.L. (2021), the Court ruled that a school could not punish a student for a vulgar off-campus Snapchat post that didn’t cause a substantial disruption, emphasizing that schools have less control over off-campus speech.
For school administrators and lawmakers, these standards mean policies must be clear, viewpoint-neutral, and tied to educational goals. Blanket bans or vague rules risk being struck down for overbreadth or chilling protected speech. Students, meanwhile, must navigate expressing themselves within these boundaries, knowing their rights are robust but not unlimited.
Special Contexts for Free Speech
The Supreme Court has developed unique tests for other scenarios:
Public employee speech: Employees can face discipline for speech that disrupts their workplace, per Pickering v. Board of Education (1968).
Government property: Speech on public property (like parks or courthouses) is governed by "forum analysis," which sets different rules based on the type of space.
CONCLUSION
Our law office has seen increasing attacks on speech. Under the guise of time, place and manner restrictions specific content is being attacked. The concerns expressed by many in politics that we are being bombarded by misinformation has led to attempts to use governmental power to shut down the misinformation. Of course the 1st Amendment when properly applied supports the adage that one person's propaganda is another person's truth and the people not the government decide.
