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Constitutional Law and the First Amendment: Freedom of Speech

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The First Amendment: Freedom of Speech

Freedom of speech is widely considered one of the most important constitutionally guaranteed rights.  Freedom of speech, enshrined in the First Amendment of the United States Constitution, is a liberty that is treasured by Americans and has allowed democracy to flourish. From the John Peter Zenger acquittal in 1735, wherein a jury refused a judge’s instructions to convict a newspaper publisher for publishing damaging information about the “royal” governor,[1] to Brandenburg v. Ohio[2] where the Supreme Court reversed the incitement conviction of a KKK leader on freedom of speech grounds to the “Pentagon papers” case, in which the Supreme Court stopped the government from preventing the New York Times from publishing classified information relating to the Vietnam War,[3] there is a long and storied tradition of freedom of speech in our culture and legal system.

The theory behind free speech is based on a model of “marketplace of ideas.” The belief is that if a state protects free speech, there will be competing ideas and robust debate that could advance a country and its democracy.[4] The marketplace of ideas theory rests on the presumption that truth is best obtained by free speech, regardless of agreement with the ideas being expressed.

The marketplace of ideas leads to two essential benefits. The first is that it can lead to an informed citizenry, who are more active and engaged in their democracy.[5] Second is that free speech will allow for a decision-making process more open to the entire citizenry and as a result, stronger and more impactful decisions can be reached by the government and its citizens.

It must also be noted that freedom of speech includes more just the right to verbal expressions. It also includes the right to take part in other forms of expression, such as advertising products, producing and promoting visual arts and engaging in symbolic speech, such as wearing clothing designed to send political messages.

Content-Based Regulations

A content-based regulation is a restriction on speech or expression that is based on the substance of the message being communicated, rather than the method or manner in which the message is being expressed. For example, a local regulation that says you can make a speech in a park if it’s merely informative or educational but not if it’s politically contentious, is a content-based restriction.

To be valid, these restrictions must pass strict scrutiny. To pass a strict scrutiny analysis, the government must prove that the content-based restriction is:

(1)  The narrowest means necessary to

(2)  achieve a compelling government interest.  

Strict scrutiny is a very difficult standard to meet and it is rare that laws subjected to strict scrutiny are upheld. Its analysis is fact-intensive, but some general principles help guide courts. First, a law restricting speech is not narrowly-tailored if it restricts a significant amount of speech that doesn’t involve this compelling government interest. For example, the Supreme Court struck down New York’s “Son of Sam” law that ordered proceeds from criminals telling their stories be turned over to the public for eventual distribution to crime victims. The Court ruled that the state had not shown that its law was narrowly tailored to the state’s objective of compensating victims because the law was over-inclusive. It applied to works on any subject authored by a person convicted of a crime and so did not always further victim compensation.[6] Further illustrating this principle of strict scrutiny is that narrower, more clearly defined similar laws have, in fact, passed constitutional scrutiny.

Moreover, a compelling government interest is not one that is merely furthered by a restriction on speech.[7] The government must demonstrate, using “simple common sense,” that the interest is important and crucial to achieving a desired governmental goal.[8]

            Buckley v. Valeo[9] presented another example of a content-based limitation on speech being analyzed by the Supreme Court. The Federal Election Campaign Act of 1971 limited campaign contributions, limited election expenditures and required disclosures of campaign contributions. The Supreme Court upheld restrictions on individual contributions to political campaigns but struck down other restrictions such as limitations on independent expenditures on campaigns, expenditures by candidates of their own money on their own campaigns and limitations on total campaign expenditures. The Court did acknowledge that the government had a compelling interest in restricting campaign-finance to some extent, which was to limit the undue influence that an individual contributing greatly to a campaign may have over a candidate. Tangentially, the Court’s ruling in this case the campaign spending amounted to political speech set the stage for the highly controversial case almost 30 years later in Citizens United v. Federal Election Commission,[10] that granted corporations the constitutional right to attempt to influence political elections.       

In Boos v. Barry, [11] the Court analyzed a Washington, D.C. statute that banned people from displaying signs with messages that tended to bring foreign governments into “public disrepute” within 500 feet of the country’s embassy. In Boos’ case, he and his fellow protestors were prohibited from displaying signs criticizing the Soviet Union on front of the Soviet embassy. The Court had to determine whether the District of Columbia’s justification for the statute passed strict scrutiny because the statute regulated the expression of protestors’ viewpoints, a content-based restriction. The Court held that the prohibition failed to pass strict scrutiny because the government’s arguments that the limitations were necessary to keep peace and security were not compelling enough to validate the sign ban.

Content-Neutral Restrictions

Also known as “time, place, and manner” restrictions, these are laws that prohibit or limit communication without regard to the message conveyed. Thus, they “are justified without reference to the content of the regulated speech.”[12] These regulations are subject to a lesser degree of scrutiny than content-based restrictions because these regulations are not necessarily designed to curtail public discourse.[13] Content-neutral restrictions will be constitutional if the government demonstrates that the restrictions:

(1)  Are content neutral;

(2)  Are serving an important government interest; and

(3)  Leave open ample, alternative channels of communication

In United States v. O’Brien,[14] David O’Brien burned his draft card on the steps of the South Boston Courthouse to protest the Vietnam War. He was convicted under the Selected Service Act for violating the “no willful destruction” of draft cards mandate. The Supreme Court of the United States upheld the federal statute and reasoned that it was a valid time, place, and manner restriction on speech.[15] The Court found that the Act’s prohibition of burning draft cards furthered a legitimate government interest, which was to ensure a “smooth and proper functioning of the system that Congress has established to raise armies.” Additionally, the Court determined that even though the Act prohibited one type of speech, O’Brien still had numerous alternative means to communicate his opposition to the Vietnam War. In other words, while the government could not prohibit protesting the Vietnam War, it could punish this method of protest which served to curtail the functioning of the draft.[16]

In Heffron v. Int'l Soc. for Krishna Consciousness,[17] a Minnesota rule had restricted the sale or distribution of any merchandise at the state fair without a license from the state. This prevented the plaintiffs from carrying out a religious ritual of going into public places to distribute or sell religious literature and to solicit donations. The Supreme Court held that the Minnesota rules were valid content-neutral restrictions. The Court reasoned that the rule was content neutral because didn’t target the religious group’s subject-matter and was applied equally to all organizations. Second, the state proved that it’s interest in limiting the distribution and sale of written materials at its fair location was necessary to prevent congestion on the fairgrounds. This was a sufficient government interest to justify these limitations on the group’s speech. Finally, individual members of that group could still freely pass out their literature outside of the fairgrounds, so alternative channels for communication existed.

            The willingness of American courts to protect freedom of speech even when potentially sacrificing some security embodies the famous Benjamin Franklin quote “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." While freedom of speech is certainly not unlimited, courts are sworn to protect this


[2] 395 U.S. 444 (1969)

[3] New York Times Co. v. United States, 403 US 713 (1971)

[4] Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, (1984).

[5] Kenneth Karst, Equality as a Central Principle of the First Amendment,  43 U. CHI. L. REV. 20, (1975).

[6] Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, (1991).

[7] Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417 (1997).

[8] Burson v. Freeman, 504 U.S. 191, (1992).

[9] 424 U.S. 1, (1976).

[10] 558 U.S. 310 (2010)

[11] 485 U.S. 312 (1988)

[12] Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, (1976).

[13] Paul Finkelman, Encyclopedia of American Civil Liberties, (2006).

[14] 391 U.S. 367, (1968).

[15] Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189, (1983),

[16] James McGoldrick, Symbolic Speech: A Message From Mind to Mind, 61 Okla. L. Rev. 1, (2008).

[17] 452 U.S. 640, (1981).