Please accept my apology in advance for breezing through the complex and nuanced topic of speech regulation. This page is intended merely as the groundwork, the jumping-off point for a deeper dive into the details of a particular form of speech regulation. So, with that caveat out of the way . . .
Let’s go to the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Broad Applicability of the First Amendment
Yeah, there’s that reference to “Congress,” but thanks to the Fourteenth Amendment and a whole bunch of case law, these protections apply broadly to any-and-all forms of government in the U.S., from Congress down to the smallest municipality.
And don’t think that “speech” is somehow limiting. As the Supreme Court explained in 1995, the term encompasses any medium of expression:
“To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” 1
Thus, the protections of the First Amendment apply to all sorts of expression, including the obvious – speaking and writing – as well as less-obvious forms such as photography, printing, and even, likely, cake decorating. 2
But There ARE Limits
Despite the categorical language – “Congress shall make no law . . .” – courts have, over the years, identified ways in which Congress (or whatever government entity we’re talking about) CAN, in fact, make a law:
- Incidental burdens on speech, as when speech is a minor subset of conduct.
- “Time, place, and manner” restrictions. These are laws that don’t restrict the content of speech, but rather the, well, time, place, or manner of such speech. Think noise ordinances: the government (and, likely, your fellow citizens) don’t care about what type of music you’re listening to — just that you’re not blasting it at 3:00 am. 3
The Government Can (Sometimes) Even Regulate WHAT We Say
Most government speech regulation ends up being in the margins: it is regulation of the incidental, or the time, place, or manner of speech. But where the First Amendment rubber really meets the road is when the government regulates what we say — or as someone less polite might put it, when the government censors us.
Again, despite the categorical language of the First Amendment, this doesn’t mean the government can NEVER regulate the content of speech. It’s just very limited it how it can do so.
And again, my apologies for glossing over a lot of nuance here, but I’m going to condense this down into three big concepts to keep in mind when it comes to the government telling us what we can and cannot say:
There Are Some Categories of Speech That Aren’t Protected
There are a small number of categories where the Supreme Court has found that content-based speech regulation is allowed:
- Child pornography
- Incitement to imminent lawless action
- Criminal Speech (speech that’s integral to a crime, or solicitation of a crime)
- Intellectual Property
- Commercial Speech
These Categories Are Narrowly Interpreted
Courts don’t strive to “fit” speech into one of the categories listed above. And if the government wants to regulate the content of speech that’s not within one of these categories, such regulation must survive strict scrutiny review. To do so, the government must show that its regulation is absolutely necessary, directly targets a serious problem, and is as narrowly-focused as possible. 4
You won’t be surprised to learn that the vast majority of government speech regulation isn’t able to clear this bar.
There is No Cost-Benefit Analysis When it Comes to Free Speech
Finally, the law doesn’t recognize any balancing tests when dealing with content-based speech regulation. As Chief Justice Roberts wrote, for a near-unanimous Court holding against criminalizing the sale of dog-fighting videos:
“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” 5
Thus, we don’t balance the value of the speech against the benefit of regulating it. The law presumes that any-and-all attempts of the government to regulate its citizens’ expression – regardless of the usefulness, banality, or offensiveness of the expression in question – must meet the bar of strict scrutiny.
- Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995). ↩
- See Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2017 WL 2722428 (2017). Yes, the case was decided on narrower, non-First Amendment grounds, and the facts weren’t quite on point, but . . . ↩
- It’s beyond the scope of this work to get into the nuances of TPM, but it’s sufficient to note that such rules can’t be de facto regulations on content, and must meet the intermediate scrutiny standard. ↩
- See, e.g., Austin v. Michigan Chamber of Commerce, 494 US 652, 657 (1990). ↩
- United States v. Stevens, 130 S. Ct. 1577, 1585 (2010). ↩