First Amendment — Speech

MBEMax wiki article — paired with the Constitutional Law question set on mbemax.com.

One-line summary

This article drills into First Amendment speech sub-doctrines not fully covered in Freedom of Speech — including forum analysis, prior restraints, symbolic speech, overbreadth/vagueness, and speech in specific institutional settings.

Mnemonic

F-P-S-O-I — Forum, Prior restraint, Symbolic speech, Overbreadth/vagueness, Institutions (schools, workplaces, prisons, military).

Forum analysis

Four categories for speech on government property:

Traditional public forum

Streets, sidewalks, parks. Open to expression by tradition.

• Content-based → strict scrutiny (rarely survives).
• Content-neutral TPM → intermediate scrutiny (Ward v. Rock Against Racism): significant government interest, narrowly tailored, ample alternative channels.

Designated public forum

Government opens property for expressive purposes; treated as traditional forum while open.

Limited public forum

Opened for expressive purposes but limited to certain subjects or speakers.

• Content-based restrictions allowed if reasonable and viewpoint-neutral.

Non-public forum

Property not traditionally or designated for expression (military bases, jails, airport terminals in most circuits).

• Restrictions must be reasonable and viewpoint-neutral.

Prior restraints

A prior restraint is a government order or licensing scheme preventing speech before it occurs.

• Presumption of unconstitutionality (New York Times v. United States — Pentagon Papers).
• Licensing schemes — must have (1) definite objective standards, (2) prompt judicial review, (3) burden on government to initiate review.
• Injunctions against speech — heavy burden to justify.
• Exceptions — obscenity prior-review with procedural safeguards; national security in extraordinary cases; "fighting words" not protected.

Symbolic speech

Conduct that conveys a particularized message likely to be understood. Government regulation survives if:

1. Within constitutional power.
2. Furthers important or substantial government interest.
3. Interest is unrelated to suppression of expression.
4. Incidental restriction on speech is no greater than essential (United States v. O'Brien).

When interest is unrelated to speech, intermediate scrutiny. When related to content of message, strict scrutiny.

Overbreadth and vagueness

• Overbreadth — law chills substantially more protected speech than unprotected. Third-party standing allowed. Remedy: facial invalidation unless narrowly construed.
• Vagueness — fails to provide fair notice or standards for enforcement; due-process concerns + chilling.

Speech in institutional settings

Public employees

• Pickering/Connick balancing. Employee speaking as citizen on matter of public concern protected; balance employer's interest in efficiency.
• Garcetti v. Ceballos — speech pursuant to official duties is not citizen speech; no First Amendment protection.
• Harassment / threats — not protected even if speech.

Schools

• Tinker substantial-disruption test for student speech.
• Bethel v. Fraser — lewd / offensive speech can be regulated.
• Hazelwood v. Kuhlmeier — school-sponsored speech (newspapers, plays) can be regulated for legitimate pedagogical reasons.
• Morse v. Frederick — speech promoting illegal drug use at school-sponsored event not protected.
• Mahanoy Area School District v. B.L. — off-campus social-media speech generally protected.

Government-subsidized speech

• Rust v. Sullivan — government may impose conditions on its own funded programs.
• National Endowment for the Arts v. Finley — decency conditions on arts grants valid.
• Legal Services Corp. v. Velazquez — cannot distort neutral adjudicatory process.

Regulated industries

• Broadcasting — spectrum scarcity rationale; FCC regulation (FCC v. Pacifica — indecency in broadcast).
• Commercial speech — intermediate scrutiny (Central Hudson).

Content-based vs. content-neutral revisited

• Reed v. Town of Gilbert — facial content-based analysis; law that distinguishes by subject matter or function of message is content-based.
• McCullen v. Coakley — buffer zone near abortion clinics was content-neutral but not narrowly tailored.

Unprotected categories (see Freedom of Speech for details)

• Incitement (Brandenburg).
• True threats (Counterman).
• Fighting words (Chaplinsky).
• Obscenity (Miller).
• Defamation (Sullivan, Gertz).
• Commercial-speech reduction (but not unprotected).
• Child pornography (Ferber).

Prior restraint examples

• Injunctions — Near v. Minnesota (1931) — banning future publications.
• Licensing — Lakewood v. Plain Dealer Publishing Co. (1988) — unconstrained discretion.
• National security — New York Times v. United States (1971) — burden of justification extraordinary.

NCBE loves to test

• Forum category. Starts every analysis of speech on government property.
• TPM requirements. Content-neutral + narrowly tailored + significant interest + alternative channels.
• Prior restraints. Strong presumption of unconstitutionality.
• O'Brien test for symbolic speech. Four-part test; if any step fails, restriction invalid.
• Overbreadth standing. Party can raise even if own speech unprotected.
• Government speech. Not subject to Free Speech Clause — Walker v. Texas Division, Sons of Confederate Veterans (specialty license plates).
• Public-employee speech. Garcetti bright line for official duties.
• Student speech. Tinker + extensions; Mahanoy for off-campus.

Fast hypos

Hypo 1. City ordinance prohibits picketing on any sidewalk within 100 feet of a private residence. Content-neutral TPM (but blanket ban may not leave alternative channels — *Frisby v. Schultz).*

Hypo 2. License required to hold a parade; mayor has discretion to deny without standards. Unconstitutional prior restraint — no standards, unbridled discretion.

Hypo 3. Federal law criminalizes burning of the U.S. flag as form of protest. Symbolic speech — interest (national unity) related to suppressing speech; strict scrutiny; unconstitutional (Texas v. Johnson).

Hypo 4. Public school requires students to stand and recite the Pledge of Allegiance. Student refuses. Compelled speech — unconstitutional (W. Va. State Bd. of Ed. v. Barnette).

Hypo 5. Airport terminal restricts solicitation. Non-public forum — reasonable + viewpoint-neutral; restriction likely valid (ISKCON v. Lee).

Case anchors

• Ward v. Rock Against Racism, 491 U.S. 781 (1989) — TPM narrow tailoring.
• United States v. O'Brien, 391 U.S. 367 (1968) — symbolic-speech test.
• New York Times v. United States, 403 U.S. 713 (1971) — Pentagon Papers.
• Near v. Minnesota, 283 U.S. 697 (1931) — prior restraint.
• Texas v. Johnson, 491 U.S. 397 (1989) — flag-burning.
• Reed v. Town of Gilbert, 576 U.S. 155 (2015) — content-based sign code.
• Garcetti v. Ceballos, 547 U.S. 410 (2006) — public-employee duty speech.
• Tinker v. Des Moines, 393 U.S. 503 (1969) — student speech.
• Morse v. Frederick, 551 U.S. 393 (2007) — "Bong Hits 4 Jesus."
• Mahanoy Area School District v. B.L., 594 U.S. 180 (2021) — off-campus student speech.
• W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) — compelled-speech prohibition.

See also

• Freedom of Speech
• Equal Protection
• Commerce Clause
• Takings

Sources

U.S. Const. amend. I, XIV; Ward v. Rock Against Racism, 491 U.S. 781 (1989); United States v. O'Brien, 391 U.S. 367 (1968); New York Times v. United States, 403 U.S. 713 (1971); Near v. Minnesota, 283 U.S. 697 (1931); Texas v. Johnson, 491 U.S. 397 (1989); Reed v. Town of Gilbert, 576 U.S. 155 (2015); Garcetti v. Ceballos, 547 U.S. 410 (2006); Tinker v. Des Moines, 393 U.S. 503 (1969); Mahanoy Area School District v. B.L., 594 U.S. 180 (2021).