FIRST AMENDMENT PROTECTION: How Far Can the Government Go To Control What You Say?


How Far Can the Government Go To Control What You Say?

1. Speech Scrutiny Introduction

The first amendment of the constitution enumerates Americans with the freedom of expression. This freedom is consistently held to be among our most vital and closely guarded rights but it certainly does not guarantee any and all forms of expressive behavior.  The government may create rules and regulations that limit the time, place and manner of speech. Although permissible, the Supreme Court has held that such restrictions are subject to intermediate judicial scrutiny.[i] The government may also impose content based restrictions. Courts typically conduct a more skeptical inquiry for laws restricting content, and apply the so-called “strict scrutiny” test.[ii]

2. Time Place and Manner Restrictions and Intermediate Scrutiny; Content Based Restrictions and Strict Scrutiny

Time, place and manner restrictions regulate where and when expressive conduct may occur in order to prevent it from interfering with the rights of others. Put another way, such restrictions exist to prevent people from unduly disrupting other people’s lives or undermining a legitimate government purpose (such as preventing death or accident) under the guise of expressive freedom. Restrictions of this type are subject to constitutional “intermediate scrutiny” to safeguard[iii] expression from unlawful government constraints.

Regulations can withstand intermediate scrutiny provided that they are neutral as to the content of the regulated expression, narrowly tailored to meet a significant government interest, while also providing for “ample” alternate avenues of communication.[iv] The courts will always invalidate time, place and manner restrictions explicitly created to restrict free expression.[v] Moreover, restrictions may only qualify as narrowly tailored if they are not “substantially” too broad than what is necessary to achieve a regulatory end.[vi]

Typical categories of time, place and manner restrictions prevent protestors from assembling in public places at disruptive times, or assembling in public places in a manner that carries carrying significant public safety or health consequences. For example, a restriction preventing protestors from camping in a public park without public health and safety infrastructure is permitted.[vii]

If the government were unable to enact restrictions of this kind it would be powerless to prevent high risk activity, unnecessary municipal costs and a burden to the general public.

3. Content Based Restrictions and Strict Scrutiny Detailed

Content based restrictions are those affecting the underlying message of expression; restrictions limiting what is expressed or how it is expressed. Restrictions of this type are subject to the toughest judicial scrutiny standard called strict scrutiny.[viii] In order to pass muster under strict scrutiny the regulation must 1) be narrowly tailored to 2) serve a compelling government interest, and 3) must be the least restrictive means possible towards achieving that government interest.[ix]

A. Categories of Speech Warrant Different Protection – Non-Protected Expression

Strict scrutiny is the strongest form of constitutional protection. Courts often apply the strict scrutiny test to government action that regulates the content of expression. The government is however permitted to restrict particular classes that are of low value or that have been historically unprotected. These non-protected classes include: child pornography, fighting words, defamation (libel, slander), threats, fraud, speech integral to criminal conduct, and obscenity.[x] Outside of the above categories most varieties of expression are protected by the First Amendment and therefore also subject to strict scrutiny.

B. Compelling Interests

The government may pass laws that impose modest restrictions on non-protected expression if the government’s interest is compelling. The process for determining whether a government interest is compelling is neither particularly formulaic nor exact. Many years of case law provides courts with a framework for analysis, but ultimately any conclusions concerning the permissibility of government goals rely on the subjective analyses of judges.

This is problematic for law and policy makers because laws limiting expression may become suddenly invalid due to a change of the ideological composition of the courts in the jurisdiction. For example, in 1990 the Supreme Court allowed the government to regulate corporate spending on political campaigns and found that mitigating the negative effects caused by corporate spending on political campaigns was a compelling interest.[xi] In 2010 the Supreme Court explicitly reversed its position concerning Austin’s compelling government interest, stating that it is antithetical to the First Amendment to artificially remove corporate speakers from political discourse (through advertisements) on the basis of their purported financial ability to engage in such speech.[xii] The majority opinions in Austin and Citizens drastically differ in terms of substance, but are similar in that they reach their conclusions on the basis of normative impressions, culled from a variety of historical and jurisprudential sources, about what the First Amendment ought to protect. The Citizens’ Court’s judgments about free speech essentially gutted campaign finance laws throughout the nation. The power of these normative judgments is not fully determinative. As mentioned above, the Court has created general guidelines concerning compelling interests.

There are three basic principles regarding compelling government interests. 1) The government cannot create laws that prioritize one category of high-level protected speech at the expense of others.[xiii] For example, the government could not pass a law banning protests relating to economic policy. 2) The government cannot pass restrictions designed simply to prevent the dissemination of ideas many find offensive or disagreeable.[xiv] 3) The government’s interest cannot be underinclusive in that it does not significantly confront the underlying policy and reason for creating the restriction.[xv] An interest may be underinclusive itself if the goal of the law is to restrict harms stemming from a narrow class of conduct, but does not address similar conduct that creates practically indistinguishable effects. [xvi]

In sum, discerning whether a government interest is compelling is problematic because, as some may argue, any content based restriction brought before a court will be unavoidably subject to the judge’s normative opinions.[xvii] Despite these ambiguities, restrictions that protect certain high level forms of conduct are commonly regarded as compelling by courts. This includes protecting freedom of the press, protecting freedom to express religious views and/or political views, protecting voters from confusion and undue influence, and preventing corruption in politics.[xviii]

C. Narrow Tailoring

Under strict scrutiny laws must also be narrowly tailored.  Courts first require the government to prove that the restriction works to advance its interest or goal.[xix] Courts furthermore require to not be overinclusive in order to qualify as narrowly tailored.[xx] Overinclusive laws are those that sweep too broadly in that they restrict too much protected expression in an effort to restrict non-protected expression.

In determining whether a law is narrowly tailored the court also considers whether it is the least restrictive means available for effectuating the government’s goal.  The government may demonstrate that a law is “least restrictive” if it can prove, in common sense terms, that no less restrictive means for effectuating a particular goal are possible. Finally, narrow tailoring depends on whether the means of effectuating a legitimate government interest are underclusive. The fact that a law does not restrict a significant amount of the bad conduct the government is attempting to inhibit evidences that a law is not narrowly tailored.[xxi] Courts will interpret underinclusiveness as evidence that the government does not actually find the interest compelling enough to pass an operational statute.

[i] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984).

[ii] E.g. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340, 130 S. Ct. 876, 898, 175 L. Ed. 2d 753 (2010); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657 (1990); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 350 (2010)

[iv] See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

[v] See U. S. v. O’Brien, 391 U.S. 367, 88 (1968)

[vi] Ward at 800

[vii] Clark at 294

[viii] Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990)

[ix] Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989)

[x] See United States v. Stevens, 559 U.S. 460, 468 (2010), See also

Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 574 (2002) (Not all nude, sexual, explicative laced, or adult oriented content is considered “obscene” by law. The obscenity of expressive content is gauged in accordance with the following test. “(1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

[xi] Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666, 110 S. Ct. 1391, 1401 (1990)

[xii] Citizens United at 350

[xiii] Carey v. Brown, 447 U.S. 455, 462 (1980)

[xiv] See e.g., Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 118 (1991), Texas v. Johnson, 491 U.S. 397, 414 (1989).

[xv] Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (Damages against publishing identity of minor sexual assault victim does not significantly advance goal of protecting privacy and safety of sexual assault victims).

[xvi] See Simon & Schuster at 119, see also Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417, 2420 (1996)

[xvii] I do not believe, for example, that any sort of sexual activity portrayed or enacted over the phone lines would fall outside of the obscenity portion of the statute that we uphold, and within the indecency portion that we strike down, so long as it appeals only to “normal, healthy sexual desires” as opposed to “shameful or morbid” ones” Sable at  126.

[xviii] See e.g., Florida Star, Wisconsin v. Yoder, 406 U.S. 205, 214 (1972), Citizens United, and

Buckley v. Valeo, 424 U.S. 1, 27 (1976)

[xix] “While a State may regulate the flow of information between political associations and their members when necessary to prevent fraud and corruption… there is no evidence that California’s ban on party primary endorsements serves that purpose.” Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 229 (1989)

[xx] See Citizens United at 314 (held that FEC restriction was not narrowly tailored because though set out to protect dissenting shareholders, inter alia, it was overinclusive in that it limited single member corporations and business entities.

[xxi] First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 793 (1978)