Freedom of Speech

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

One-line summary

The First Amendment, applied to the states through the Fourteenth, generally protects speech from government suppression; restrictions on content trigger strict scrutiny, content-neutral time, place, and manner regulations receive intermediate scrutiny, and certain narrowly defined categories (obscenity, true threats, fighting words, incitement, defamation) receive reduced or no protection.

Mnemonic

C-N-T — Content-based (strict), Neutral (intermediate), Tested categories (unprotected).

Picture a three-lane road: content-based speech must use the strictest lane; content-neutral gets the middle; unprotected speech drives in the service road.

Framework

Step 1: Is it speech or conduct?

Expressive conduct (symbolic speech) is protected if the actor intends to convey a particularized message and it is likely to be understood (Spence v. Washington; Texas v. Johnson).

Step 2: Is the regulation content-based or content-neutral?

• Content-based (viewpoint or subject-matter) → strict scrutiny: narrowly tailored to compelling government interest (usually fatal).
• Content-neutral → intermediate scrutiny: serves important government interest, is narrowly tailored (not substantially broader than necessary), and leaves open ample alternative channels.

Step 3: Is the speech in an unprotected or less-protected category?

Categories and their tests:

• Incitement (Brandenburg) — speech directed to inciting imminent lawless action AND likely to produce such action.
• True threats — serious expression of intent to commit unlawful violence (Virginia v. Black, Counterman v. Colorado).
• Fighting words — personally abusive epithets likely to provoke immediate retaliation (Chaplinsky; narrowly applied).
• Obscenity (Miller) — appeals to prurient interest, patently offensive under local standards, lacks serious literary/artistic/political/scientific value.
• Defamation — Public officials/figures: actual malice (New York Times v. Sullivan). Private figures: negligence if matter of public concern (Gertz).
• Commercial speech — intermediate-ish: substantial government interest, directly advances, narrowly tailored (Central Hudson).
• Child pornography — unprotected regardless of obscenity (New York v. Ferber).

Step 4: Is there a forum analysis (for public property)?

• Traditional public forum (streets, sidewalks, parks) — content-based must survive strict scrutiny; content-neutral TPM restrictions permitted.
• Designated public forum — opened by government for expressive purposes; treated like traditional forum while open.
• Limited public forum — open to expression on certain subjects or by certain groups; content-based restrictions allowed if reasonable and viewpoint-neutral.
• Non-public forum — restrictions must only be reasonable and viewpoint-neutral.

Special doctrines

• Prior restraints — presumptively unconstitutional; require procedural safeguards (licensing schemes need objective criteria and prompt judicial review).
• Overbreadth — facially overbroad laws chill protected speech; allows third-party standing.
• Vagueness — unclear laws fail due-process notice.
• Government speech — not subject to Free Speech Clause (Walker v. Texas Division, Sons of Confederate Veterans).
• Public-employee speech — Pickering/Connick balancing for speech on matters of public concern; Garcetti — speech pursuant to official duties is not citizen speech.
• Student speech — Tinker substantial-disruption test; Mahanoy Area School District v. B.L. — off-campus speech protected with narrow exceptions.

NCBE loves to test

• Content-based vs. content-neutral. Key first move. Laws that turn on message or viewpoint = content-based.
• TPM regulations. Must be content-neutral, narrowly tailored, serve significant interest, leave open alternatives.
• Commercial speech and four-part Central Hudson test. Lawful + non-misleading; substantial government interest; directly advances; no more extensive than necessary.
• True threats require subjective recklessness. Under Counterman, speaker must consciously disregard a substantial risk that statements would be viewed as threatening.
• Campus/K-12 speech. Different from adult-public analysis; Tinker substantial disruption.
• Unprotected does not mean no procedural rights. Obscenity prosecutions still need procedural safeguards.
• Public figures. All-purpose and limited-purpose public figures face actual-malice standard.
• Government employment and internal speech. Garcetti — duties speech is not citizen speech.
• Prior restraints. Licensing must have standards and prompt review; injunctions against speech bear a heavy presumption against constitutionality.

Fast hypos

Hypo 1. City bans all political yard signs. Content-based → strict scrutiny; unconstitutional under *Reed v. Town of Gilbert.*

Hypo 2. City limits noise in residential areas to 60 dB during daytime. Content-neutral TPM → intermediate scrutiny; likely upheld.

Hypo 3. State statute criminalizes "insulting words" uttered in public. Overbreadth concern; *Gooding v. Wilson; likely struck down.*

Hypo 4. School suspends student for Snapchat post cursing cheerleading coach. Off-campus speech; *Mahanoy protects unless substantial disruption — likely protected.*

Hypo 5. State law bans sale of violent video games to minors. Content-based; strict scrutiny; struck down (Brown v. Entertainment Merchants Ass'n).

Case anchors

• Brandenburg v. Ohio, 395 U.S. 444 (1969) — incitement test.
• New York Times v. Sullivan, 376 U.S. 254 (1964) — actual malice for public officials.
• Miller v. California, 413 U.S. 15 (1973) — obscenity test.
• Texas v. Johnson, 491 U.S. 397 (1989) — flag-burning as symbolic speech.
• Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980) — commercial-speech test.
• 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 unprotected.
• Counterman v. Colorado, 600 U.S. 66 (2023) — true-threats mens rea.
• Mahanoy Area School District v. B.L., 594 U.S. 180 (2021) — off-campus student speech.

See also

• First Amendment — Speech
• Equal Protection
• Commerce Clause
• Takings

Sources

U.S. Const. amend. I, XIV; Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times v. Sullivan, 376 U.S. 254 (1964); Miller v. California, 413 U.S. 15 (1973); Texas v. Johnson, 491 U.S. 397 (1989); Central Hudson, 447 U.S. 557 (1980); Reed v. Town of Gilbert, 576 U.S. 155 (2015); Garcetti v. Ceballos, 547 U.S. 410 (2006); Counterman v. Colorado, 600 U.S. 66 (2023).