{"id":30873,"date":"2021-07-07T14:00:04","date_gmt":"2021-07-07T19:00:04","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment1\/content-and-viewpoint-based-regulation-of-speech.html"},"modified":"2024-08-23T14:09:14","modified_gmt":"2024-08-23T19:09:14","slug":"content-and-viewpoint-based-regulation-of-speech","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment1\/content-and-viewpoint-based-regulation-of-speech.html","title":{"rendered":"Content-Based and Viewpoint-Based Regulation of Speech"},"content":{"rendered":"\n
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Content-Based and Viewpoint-Based Regulation of Speech<\/h1>\n
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\n By Balrina Ahluwalia, Esq.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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The constitutional right to free speech means that the government cannot force us to express certain ideas or stop us from expressing others. As a result, content-based governmental restrictions are generally subject to a higher level of scrutiny in the courts than content-neutral ones.             <\/p>\n\n <\/div>\n\n

The protection of free speech under the First Amendment originates from a prohibition on Congress<\/a>, our federal legislative body. The free speech clause of the First Amendment<\/a> to the U.S. Constitution<\/a> reads:<\/p>\r\n

\u201cCongress shall make no law\u2026abridging the freedom of speech\u2026"<\/p>\r\n

Congress may not enact laws restricting our right to free speech. But the Supreme Court<\/a> has long interpreted this right to limit more than just Congressional lawmaking. It prohibits any governmental action, at any level, that restricts our freedom of speech.<\/p>\r\n

This freedom is not an absolute right, and its contours have been shaped by the Supreme Court\u2019s interpretation of the First Amendment.<\/p>\r\n

In this article, we’ll discuss the Supreme Court’s analysis of government actions that restrict free speech, specifically, how the Court views content-based and content-neutral restrictions differently.<\/p>\r\n

The Supreme Court\u2019s Approach to Regulation of Speech<\/h2>\r\n

Supreme Court precedent has established legal standards for determining whether government action restricting speech is constitutional. It has also established some permissible governmental restrictions on free speech.<\/p>\r\n

Another phrase for governmental action in this context is \u201cstate action<\/a>.\u201d As the Court explained in Cohen v. California<\/i><\/a>, state actions restricting free speech can include laws at any level. It can also include less official policies, rules, enforcement measures, and prosecution actions.<\/p>\r\n

When a state action or restriction is challenged as an unconstitutional infringement on the First Amendment right to free speech, a primary consideration is whether the restriction is content-based or content-neutral.<\/p>\r\n

Content-Based Restrictions On Speech<\/h2>\r\n

The very essence of our constitutional right to free speech is that the government may not suppress us from expressing particular ideas because of their content or messaging<\/u><\/a>.<\/p>\r\n

The Supreme Court has also established that speech, in the First Amendment context, can include other forms of expression like conduct, the written word, and symbolic actions.<\/p>\r\n

For example, the Court held in Texas v. Johnson<\/i><\/a> that flag burning in protest was a form of speech protected by the First Amendment. Similarly, the Court found not saluting the American flag to be another form of protected speech in West Virginia Board of Education v. Barnette<\/i><\/a>.<\/p>\r\n

As the Supreme Court stated in Reed v. Town of Gilbert<\/i><\/a>, any law that seeks to regulate speech on the basis of subject matter, topics, or substantive messaging is considered content-based and is \u201cpresumptively unconstitutional.\u201d<\/p>\r\n

Strict Scrutiny<\/h3>\r\n

Courts will generally evaluate content-based restrictions using a legal standard called strict scrutiny<\/a>. This is the most difficult standard of judicial review. Strict scrutiny requires the state to demonstrate that the content-based restriction meets both of the following requirements:<\/p>\r\n