IG10063 — Analyzing Constitutionality Under the First Amendment's Free Speech Clause

/ Information as of September 12, 2024. Prepared by Victoria L. Killion, Legislative Attorney, and Jamie L. Bush, Visual Information Specialist. For more information, see CRS Report R47986, Freedom of Speech: An Overview (2024). Analyzing Constitutionality Under the First Amendment's Free Speech Clause Speech Conduct Including books, movies, music, photos Some forms of expressive conduct (see below) Is the government regulating speech? What kind of speech is the government regulating? Protected Speech Commercial Certain commercial disclosure requirements may receive a less-stringent standard of review under Zauderer v. O. of Disciplinary Counsel, 471 U.S. 626 (1985). Noncommercial Unprotected Speech What is the basis for regulating this speech? Some content-based distinctions within a category of unprotected speech may trigger strict scrutiny. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Non-expressive Inherently expressive Has expressive and non-expressive elements Content Based Viewpoint Subject matter or topic Substantive message Content Neutral Courts sometimes invalidate viewpoint-based laws without undertaking strict scrutiny. No substantive aspect of speech (e.g., location) Time, place, or manner of speech Mix of Protected Speech and Unprotected Speech LEVELS OF SCRUTINY Rationally related to a legitimate governmental interest Rational basis Serves a compelling governmental interest and is narrowly tailored— that is, the least restrictive means of achieving that interest Intermediate scrutiny Directly advances an important or substantial governmental interest and is narrowly tailored (i.e., not substantially broader than necessary) to achieve that interest; sometimes requires ample alternative channels for communication of the information Strict scrutiny Strictly denied categories such as defamation, true threats, and obscenity Begin with the question, “Is the government regulating speech?” Continue responding to the questions, following the arrows, until a response includes a symbol corresponding to a specific level of scrutiny. Different legal standards might apply in particular contexts (e.g., schools, government programs). The party challenging a law on free speech grounds may have to satisfy additional legal tests for particular types of claims (e.g., vagueness, overbreadth). This Infographic illustrates the analytical steps a court might follow to determine whether a particular government action or application of law complies with the Free Speech Clause of the First Amendment. A key step in that analysis is deciding which level of constitutional scrutiny (i.e., legal test) to apply to balance the government's regulatory interests against the individual rights of acted speakers. Strict and intermediate scrutiny (denied below) are the two most common levels of scrutiny in First Amendment cases.

Curated by CRS — every bill listed in this report's relatedMaterials. Edge type cited_in_report, gold confidence.

No bill citations on file.