First Amendment Free Speech
The First Amendment prohibits Congress (and, through incorporation, states) from abridging freedom of speech. Courts apply different levels of scrutiny depending on whether a regulation is content-based or content-neutral.
Elements / Test
Content-based restrictions (regulate speech based on message/viewpoint): Strict scrutiny — compelling interest + narrow tailoring. Presumptively invalid.
Content-neutral restrictions (regulate time, place, manner without regard to content): Intermediate scrutiny — significant government interest + narrowly tailored (leaves open alternative channels).
Unprotected categories (subject to complete prohibition):
- Incitement: Directed to producing imminent lawless action AND likely to produce such action (Brandenburg v. Ohio)
- True threats: Serious expression of intent to commit unlawful violence (Virginia v. Black)
- Fighting words: Face-to-face words likely to provoke immediate breach of peace (Chaplinsky)
- Obscenity: Appeals to prurient interest + patently offensive + no serious literary/artistic/political/scientific value (Miller test)
- Child pornography: No First Amendment protection (New York v. Ferber)
- Defamation: False statements of fact — public officials/figures must show actual malice (NY Times v. Sullivan); private figures only negligence
Overbreadth and vagueness: Law is facially invalid if it substantially burdens protected speech.
Exceptions and Edge Cases
- Public forum doctrine: Traditional public forums (streets, parks) — strict scrutiny for content-based restrictions, intermediate for neutral; designated public forums; non-public forums (rational basis)
- Campaign finance: Spending money is speech; limits on independent expenditures unconstitutional (Citizens United); contribution limits upheld
- Commercial speech: Intermediate scrutiny (Central Hudson four-part test)
- Government speech: Government can express its own views without First Amendment constraints (Rust v. Sullivan)
- Compelled speech: Generally prohibited — Wooley v. Maynard (license plate), Barnette (flag salute)
Policy Rationale
Marketplace of ideas (Holmes); democratic self-governance (Meiklejohn); individual autonomy and self-expression; distrust of government as arbiter of truth.
Key Cases
| Case | Rule |
|---|---|
| Schenck v. United States (1919) | (Pre-Brandenburg) Clear and present danger test — now superseded |
| Brandenburg v. Ohio (1969) | Advocacy of unlawful action protected unless directed to incitement of imminent lawless action |
| New York Times Co. v. Sullivan (1964) | Actual malice standard for public official defamation claims |
| Tinker v. Des Moines (1969) | Students don’t shed rights at schoolhouse gate; symbolic speech protected |
| Citizens United v. FEC (2010) | Corporate independent political expenditures protected by First Amendment |
| United States v. Stevens (2010) | New categories of unprotected speech require historical tradition |