Chapter 14

FREEDOM OF EXPRESSION

The First Amendment provides, in part, that “Congress shall make no law … abridging the freedom of speech, or of the press. … ” These rights (plus the accompanying “freedom of association”) are often grouped together as “freedom of expression.” Here are the key concepts relating to freedom of expression:

• Content-based vs. content-neutral: Courts distinguish between “content-based” and “content-neutral” regulations on expression.
  • Content-based: If the government action is “content-based,” the action will be generally subjected to strict scrutiny, and the action will usually be struck down.
  • Content-neutral: On the other hand, if the government action is “content-neutral,” the government’s action is subjected to a much easier-to-satisfy test, and will usually be upheld.
  • Classifying: A governmental action that burdens expression is “content-based” if the government is aiming at the “communicative impact” of the expression. By contrast, if the government is aiming at something other than the communicative impact, the action is “content-neutral,” even if it has the effect of burdening expression.
• Analysis of content-based government action: Where a government action impairing expression is “content-based,” here’s how courts analyze it:
  • Unprotected category: If the speech falls into certain pre-defined unprotected categories, then the government can more or less completely ban the expression.
    • Listing: The main “unprotected” categories are: (1) obscenity; (2) fraudulent misrepresentation; (3) defamation; (4) advocacy of imminent lawless behavior; and (5) “fighting words.”
  • Protected category: All expression not falling into one of these five categories is “protected.” If expression is protected, then any government ban or restriction on it based on its content is presumed to be unconstitutional. The Court subjects any such regulation to strict scrutiny — the regulation will be sustained only if it (1) serves a compelling governmental objective; and (2) and is “necessary,” i.e., drawn as narrowly as possible to achieve that objective.
• Analyzing content-neutral regulations: If the government restriction is content-neutral, then here is how the Court analyzes it:
  • Three-part test: The government must satisfy a three-part test before the regulation will be sustained, if the regulation substantially impairs expression:
    • Significant governmental interest: First, the regulation must serve a significant governmental interest;
    • Narrowly tailored: Second, the regulation must be narrowly tailored to serve that governmental interest; and
    • Alternative channels: Finally, the state must “leave open alternative channels” for communicating the information.