Individual rights - Content-based regulation of protected ex...

Learning Outcomes

This article explains content-based regulation of protected expression, including:

• Distinguishing content-based from content-neutral regulations of speech and expressive conduct on MBE fact patterns, using statutory language and governmental purpose.
• Applying strict scrutiny to content-based restrictions of protected speech, spotting when it is triggered, and predicting whether a law will survive.
• Identifying and comparing major categories of unprotected and less protected speech—obscenity, incitement, fighting words, true threats, defamation, commercial speech—and their governing tests.
• Using overbreadth and vagueness doctrines to mount facial challenges, determining when a statute chills protected expression or fails to give fair notice.
• Recognizing prior restraints, licensing schemes, and injunctions, evaluating procedural safeguards, discretion standards, and the heavy presumption against pre-publication censorship.
• Analyzing speech restrictions across public, limited public, and nonpublic forums, classifying time, place, and manner regulations and forum-specific standards of review.
• Working through bar-exam-style hypotheticals involving statutes, ordinances, and government actions, articulating concise constitutional arguments and selecting the best MBE answer choice.

MBE Syllabus

For the MBE, you are required to understand constitutional limits on government regulation of expression, with a focus on the following syllabus points:

• The distinction between content-based and content-neutral regulation of expression.
• The strict scrutiny standard for content-based restrictions of protected speech.
• Categories of unprotected or less protected speech (e.g., obscenity, incitement, fighting words, true threats, commercial speech).
• The overbreadth and vagueness doctrines and facial challenges to speech regulations.
• The difference between prior restraints and subsequent punishments.
• The application of these principles to statutes, ordinances, and government actions in different forums (public, limited public, nonpublic).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A city ordinance bans all speech in public parks that "criticizes government officials." What level of scrutiny applies to this ordinance?
   1. Rational basis
   2. Intermediate scrutiny
   3. Strict scrutiny
   4. Reasonableness
2. Which of the following is NOT a category of unprotected speech under the First Amendment?
   1. Obscenity
   2. Defamation
   3. Political protest
   4. Incitement to imminent lawless action
3. A state law prohibits "offensive" speech in public places. What constitutional doctrine is most likely to make this law invalid?
   1. Overbreadth
   2. Prior restraint
   3. Content-neutrality
   4. Commercial speech
4. The government prohibits publication of truthful information about a matter of public concern. Which is the strongest constitutional argument against this restriction?
   1. It is a prior restraint on protected speech.
   2. It is a content-neutral regulation.
   3. It is a reasonable time, place, and manner restriction.
   4. It is a permissible restriction on commercial speech.

Introduction

The First Amendment prohibits government from restricting expression based on its content, except in rare circumstances. Content-based regulations are subject to the highest level of judicial scrutiny and are almost always struck down unless they fall within a narrow category of unprotected speech or satisfy strict scrutiny.

On the MBE, many speech questions turn on a single step: correctly classifying the regulation as content-based or content-neutral. Once you classify it, the level of scrutiny and likely outcome almost fall into place.

Key Term: Content-Based Regulation
A law or government action that restricts speech because of the message, idea, subject matter, or viewpoint expressed.

Key Term: Content-Neutral Regulation
A law that regulates the time, place, or manner of expression regardless of the message being communicated, typically aimed at the non-communicative impacts of speech (such as noise, traffic, or clutter).

Key Term: Viewpoint Discrimination
A particularly egregious form of content discrimination in which the government targets a specific opinion or view on a subject (e.g., pro-war but not anti-war). This is almost always unconstitutional.

Key Term: Strict Scrutiny
The highest standard of judicial review, requiring the government to prove that a law is necessary to achieve a compelling interest and is narrowly tailored, usually by showing no less restrictive means are available.

Key Term: Unprotected Speech
Categories of expression not protected by the First Amendment, including obscenity, incitement to imminent lawless action, fighting words, true threats, and certain forms of defamation.

Key Term: Commercial Speech
Expression that proposes a commercial transaction or relates solely to the economic interests of the speaker and audience. Protected, but subject to a lower level of protection than core political speech.

Key Term: Overbreadth Doctrine
A constitutional principle that invalidates laws which prohibit a substantial amount of protected speech along with unprotected speech, allowing facial challenges even by persons whose own speech could be regulated.

Key Term: Vagueness Doctrine
A constitutional rule that requires laws regulating speech to be clear enough for a reasonable person to understand what is prohibited, so that people are not chilled from speaking by uncertainty.

Key Term: Prior Restraint
Government action that prohibits speech or publication before it occurs, rather than punishing it after the fact. Strongly disfavored and presumptively unconstitutional.

Key Term: Public Forum
Government property traditionally or by designation open to expressive activity (e.g., streets, sidewalks, and parks). Content-neutral regulations here are analyzed as time, place, and manner restrictions.

Key Term: Time, Place, and Manner Restriction
A content-neutral regulation of speech in a public forum that must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communication.

Key Term: Expressive Conduct
Conduct that is intended to communicate a message and is likely to be understood as such by observers (e.g., flag burning, wearing an armband). Sometimes called symbolic speech.

Why Content-Based Regulations Are So Suspect

At the core of the First Amendment is the idea that government cannot favor some ideas or punish others. When a law singles out speech because of what it says, courts presume the law is invalid. This includes:

• Subject-matter discrimination: e.g., allowing signs about real estate but not about politics.
• Viewpoint discrimination: e.g., allowing pro-government but not anti-government signs.

Viewpoint discrimination is the worst form. If the government permits one side of a debate but suppresses the opposite viewpoint, the law will almost never survive.

Even when the government claims a benign motive, if the law on its face refers to particular topics, ideas, or viewpoints, it is content-based. The Court also treats a law as content-based when its purpose or application shows it targets speech because of disagreement with its message.

Content-Based vs. Content-Neutral Regulation

A regulation is content-based if it applies to speech because of the topic discussed or the idea or message expressed. For example:

• A law banning "all criticism of government" is content-based.
• A rule that prohibits "graphic displays of violence" on billboards (but allows non-violent images) is content-based because it discriminates based on subject matter.

In contrast, content-neutral regulations apply regardless of the message, such as a rule limiting the volume of amplified sound in public parks or restricting all signs in a particular area to a certain size and number, without regard to what they say.

Content-neutral regulations in a public forum are analyzed as time, place, and manner (TPM) restrictions and receive intermediate scrutiny, not strict scrutiny.

On the MBE, look for:

• Does the law refer to specific topics (e.g., "political," "religious," "violent," "campaign")? If yes, it is almost certainly content-based.
• Does it distinguish based on who is speaking or what side they take (pro-union vs. anti-union)? That is viewpoint discrimination.
• Does it regulate only physical aspects like noise, location, or size, without reference to content? That is content-neutral.

The Strict Scrutiny Standard

When a law is content-based and does not fall within an unprotected category, the government must show:

• The law serves a compelling governmental interest.
  Typical compelling interests include national security in narrow settings, preventing imminent violence, or protecting the integrity of the judicial process. General interests such as administrative convenience, reducing costs, or "keeping the debate civil" are not compelling.

• The law is necessary to achieve that interest and is narrowly tailored.
  Narrow tailoring in this context means the law must not burden substantially more speech than necessary. If a less speech-restrictive alternative would serve the interest just as well, the law fails.

• The law is not underinclusive or overinclusive in a way that undermines the claimed interest.
  For example, banning only certain critical viewpoints while leaving equally harmful speech untouched suggests the interest is not truly compelling, or that the regulation is not narrowly tailored.

Almost all content-based regulations of protected speech fail this test. If an MBE question gives you a content-based restriction of political, artistic, or journalistic speech, the safest default is: strict scrutiny applies and the law is unconstitutional.

Categories of Unprotected and Less Protected Speech

Not all speech is protected by the First Amendment. The main unprotected categories are:

• Obscenity
  Obscene material receives no First Amendment protection. Under the Miller test, material is obscene if:

  • The work, taken as a whole, appeals to the prurient interest, applying contemporary community standards;
  • The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and
  • The work, taken as a whole, lacks serious literary, artistic, political, or scientific value (judged by a reasonable national standard).

  Child pornography is unprotected even if it does not meet the Miller test; the state may ban it outright.

• Incitement to Imminent Lawless Action
  Advocacy of illegal conduct is protected unless:

  • The speech is directed to inciting or producing imminent lawless action, and
  • The speech is likely to incite or produce such action in the circumstances.

  Mere abstract advocacy of illegality in the future is protected.

• Fighting Words
  Personally abusive epithets directed at a particular person, of such a nature that they are likely to provoke an immediate violent response. In practice, many modern "fighting words" laws are struck down as overbroad or vague, and the Court has not upheld a conviction under this doctrine in decades, but the category remains doctrinally unprotected.

• True Threats
  Statements meant to communicate a serious expression of an intent to commit unlawful violence against a particular person or group. The speaker need not actually intend to carry out the threat; placing the target in fear is enough.

• Defamation
  False statements of fact damaging to reputation can be punished, but when the plaintiff is a public official or public figure, or the speech concerns a matter of public concern, the First Amendment adds additional requirements (such as actual malice). On the MBE, focus on whether the governing defamation rules are satisfied and remember that defamatory speech is not fully protected.

Commercial speech and some other categories receive less protection:

• Commercial Speech
  Truthful commercial speech proposing a lawful transaction is protected, but under intermediate scrutiny, not strict scrutiny. Misleading, deceptive, or unlawful commercial speech is unprotected and may be banned outright.

  Content-based regulations of truthful commercial speech are upheld only if:

  • The government interest is substantial.
  • The regulation directly advances that interest.
  • The regulation is no more extensive than necessary (a reasonable fit).

Because unprotected or less protected speech can be restricted without strict scrutiny, a common MBE trap is a statute that misdefines the category. If a statute labels something "obscene" but does not incorporate the Miller elements, it is not truly regulating unprotected speech, and strict scrutiny will apply.

Expressive Conduct (Symbolic Speech)

Some regulations target conduct that contains an expressive element, such as flag burning, wearing armbands, burning draft cards, or public nudity.

For laws regulating expressive conduct, courts use a specialized test:

• The law will be upheld if:
  • It furthers an important or substantial governmental interest;
  • That interest is unrelated to the suppression of expression; and
  • The incidental burden on expression is no greater than essential to further that interest.

If the government is really targeting the message (for example, outlawing flag burning because it is disrespectful), the regulation is content-based and fails. If the government is targeting noncommunicative harms (for example, preventing fires or maintaining public order), and the law does not depend on the message, the law may be treated as content-neutral.

Overbreadth and Vagueness

A law is overbroad if it prohibits a substantial amount of protected speech along with unprotected speech. For example, a law banning "all nudity" in films shown at drive-in theaters would suppress non-obscene, artistic films as well as possibly obscene ones, and is likely overbroad.

A law is vague if people of ordinary intelligence cannot determine what is prohibited. Vague speech regulations are unconstitutional because:

• They do not give fair notice of what is prohibited.
• They invite arbitrary and discriminatory enforcement.
• They chill protected expression.

These doctrines are frequently tested together.

Remember:

• Overbreadth allows a facial challenge even by a litigant whose own speech could be restricted. This is a First Amendment–specific exception to the general bar on third-party standing.
• Vagueness challenges can be brought whether or not speech is involved, but vagueness in speech cases is particularly disfavored.

Prior Restraints

Prior restraints—government actions that prevent speech before it occurs—are highly suspect and almost always invalid. Examples include:

• Court orders or injunctions forbidding publication.
• Licensing systems that require pre-approval before speaking, publishing, or holding a demonstration.
• Censorship boards.

Even if a prior restraint is content-neutral, it faces a heavy presumption against validity.

Licensing schemes controlling expressive activity in public forums must:

• Contain narrow, objective standards that leave almost no discretion to licensing officials.
• Be content neutral.
• Provide procedural safeguards, such as prompt decisions and the possibility of prompt judicial review.

A key MBE pattern: an ordinance that requires a permit to speak or parade but gives the police chief unlimited discretion to grant or deny permits is an unconstitutional prior restraint.

Public Forums and Time, Place, and Manner Restrictions

Most MBE questions involve speech in a public forum (streets, sidewalks, parks). In such forums:

• Content-based regulations trigger strict scrutiny.
• Content-neutral regulations are analyzed as time, place, and manner restrictions and must:
  • Be content neutral on their face and as applied, and not allow unfettered discretion;
  • Be narrowly tailored to serve a significant governmental interest; and
  • Leave open ample alternative channels for communication of the information.

In a nonpublic forum (e.g., jails, military bases, most government buildings), the government can impose reasonable, viewpoint-neutral restrictions. The rule here is very deferential: any reasonable regulation is allowed, but viewpoint discrimination is still forbidden.

Application to Statutes and Ordinances

When analyzing a statute or ordinance on the MBE, a disciplined sequence helps:

• Identify the forum (public, limited public, or nonpublic).
  Public forum analysis (TPM) applies only in public or designated public forums.

• Ask whether the law is content-based or content-neutral.
  If it singles out topics or viewpoints, it is content-based.

• If content-based:

  • Determine whether the speech falls into an unprotected category properly defined by the statute. If not, strict scrutiny applies.
  • Apply strict scrutiny and conclude the law is almost certainly invalid.

• If content-neutral in a public forum:

  • Apply the time, place, and manner test:
    • Significant interest?
    • Narrow tailoring?
    • Alternative channels?

• Check for overbreadth, vagueness, and prior restraints.
  Broad bans on "offensive" or "annoying" speech often fail on both overbreadth and vagueness grounds.

Worked Example 1.1

A city ordinance prohibits "all speech in public parks that is critical of city officials." Is this ordinance constitutional?

Answer:
No. The ordinance is content-based because it targets speech based on its message and is viewpoint-discriminatory (only criticism is banned; praise is allowed). It must satisfy strict scrutiny, which it cannot do. The law is presumptively invalid.

Worked Example 1.2

A state law bans "offensive or annoying language" in public places. Is this law valid?

Answer:
No. The law is unconstitutionally vague and overbroad. "Offensive or annoying" is subjective and unclear, giving no fair notice and encouraging arbitrary enforcement. It also prohibits a substantial amount of protected speech, including robust political and social expression.

Worked Example 1.3

A statute prohibits publication of truthful information about a matter of public concern. Is this restriction likely to survive constitutional challenge?

Answer:
No. The government cannot punish publication of lawfully obtained, truthful information about a matter of public significance unless it shows a need of the highest order. Such a law is a content-based prior restraint and is almost always invalid.

Worked Example 1.4

A state highway administration, citing driver distraction, bans "graphic displays of violence" on electronic billboards along state highways. A movie producer wants to show a violent clip from a new film and challenges the rule.

Answer:
The rule is content-based because it prohibits billboards based on the subject matter of the images (graphic violence). It must satisfy strict scrutiny—be necessary to achieve a compelling interest and be narrowly tailored. Traffic safety is an important interest, but not likely compelling when the state is targeting only violent content rather than all distracting billboards. The restriction is therefore unconstitutional.

Worked Example 1.5

Concerned about clutter, a city enacts an ordinance: "All signs concerning upcoming events may not be placed more than 14 days before the event and must be removed within 7 days after the event; no more than 10 signs per event are allowed on city property." A social organization challenges the ordinance.

Answer:
The ordinance is content-neutral as to viewpoint; it treats all event-related signs alike regardless of the event or message. It regulates the time and manner of posting signs in a public forum. It will be judged as a time, place, and manner restriction and must be narrowly tailored to serve a significant governmental interest and leave open alternative channels of communication. Aesthetics and avoiding clutter are significant interests, and the limits likely leave ample alternatives, so the ordinance is likely valid.

Exam Warning

Laws that appear neutral but are applied in a way that targets specific messages are treated as content-based. Always check both the text and the application of the law. If enforcement officials selectively apply a facially neutral ordinance only against anti-government speakers, courts will treat it as content-based.

Revision Tip

On the MBE, if a law singles out speech because of its message or viewpoint, immediately think "strict scrutiny" and "likely invalidity." If the law regulates only time, place, and manner in a public forum and is content-neutral, shift to intermediate scrutiny and carefully work through the TPM test.

Summary

Content-based regulation of protected expression is almost always unconstitutional unless it falls within a narrow, properly defined category of unprotected speech or survives strict scrutiny. The key MBE skill is classification:

• Determine whether the regulation is content-based or content-neutral.
• Identify the relevant forum (public, limited public, nonpublic).
• Decide whether the speech fits into an unprotected or less protected category, applying the correct test.
• Apply strict scrutiny to content-based restrictions of protected speech and intermediate scrutiny to content-neutral TPM restrictions in public forums.
• Use overbreadth and vagueness doctrines to attack facially sweeping or undefined speech restrictions.
• Treat prior restraints and licensing schemes with skepticism, looking for unbridled discretion and lack of procedural safeguards.

Correctly applying these steps leads to the right answer in most First Amendment MBE questions.

Key Point Checklist

This article has covered the following key knowledge points:

• Content-based regulations of protected speech are subject to strict scrutiny and are presumptively invalid.
• Viewpoint discrimination is a particularly serious form of content discrimination and is virtually always unconstitutional.
• Strict scrutiny requires a compelling governmental interest and narrow tailoring with no equally effective, less speech-restrictive alternative.
• Only certain categories of speech (obscenity, incitement, fighting words, true threats, certain defamation, child pornography) are unprotected.
• Commercial speech is protected but receives intermediate, not strict, scrutiny; misleading or unlawful commercial speech is unprotected.
• Laws regulating expressive conduct are valid only if they serve an important interest unrelated to suppression of expression and impose no greater burden than necessary.
• Overbroad laws that substantially restrict protected speech, and vague laws that fail to give clear notice or invite arbitrary enforcement, are unconstitutional.
• Prior restraints, including licensing schemes with unbridled discretion, are highly disfavored and usually invalid.
• Content-neutral time, place, and manner regulations in public forums must be narrowly tailored to a significant interest and leave open ample alternative channels.
• Nonpublic forum regulations need only be reasonable and viewpoint neutral.
• Always examine both the wording and application of a law for content-based targeting and forum classification.

Key Terms and Concepts

• Content-Based Regulation
• Content-Neutral Regulation
• Viewpoint Discrimination
• Strict Scrutiny
• Unprotected Speech
• Commercial Speech
• Expressive Conduct
• Overbreadth Doctrine
• Vagueness Doctrine
• Prior Restraint
• Public Forum
• Time, Place, and Manner Restriction