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This legal primer provides a comprehensive overview of the First Amendment, specifically focusing on content-based and viewpoint-based laws and the permissible types of content-based regulations. It also discusses the application of strict and intermediate scrutiny tests to determine the constitutionality of speech restrictions.
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First Amendment primer • Assuming that the law applies to speech: • Is the law “content-based”? • If the law applies to speech about “Topic X” or does it have “Characteristic X”, whoever applies the law must make a content-based determination about the speech. • Is the law “viewpoint-based”? • Does the law treat some speech differently than other speech because of the viewpoint on the topic or characteristic being expressed?
First Amendment primer • If the law suppresses or burdens speech because of content - “strict scrutiny” applies • Government must show a ”compelling interest” in regulating and must have “narrowly tailored” the rule to be the least speech-restrictive alternative available
First Amendment primer • Permissible types of content-based laws: • Government speech – the government can choose not to say something based on its content because the government is a speaker not a regulator of others’ speech • Government subsidies – Similarly, the government can choose who’s speech to promote with public benefits, subject to certain constraints • Cannot be viewpoint based • Cannot impose “unconstitutional conditions” that coerce speakers who want access to government benefits • Commercial speech - E.g. speech that proposes a sale or transaction (advertising, labeling) • Then “intermediate scrutiny” applies. Government interest must be “important” and the choice of regulation must be “substantially related” to furthering that interest.
