Black-letter propositions
- 01
Content-based restrictions ordinarily receive strict scrutiny; viewpoint discrimination is an especially forbidden subset.
- 02
Incitement requires advocacy intended and likely to produce imminent lawless action.
- 03
True threats communicate serious unlawful violence; fighting words are narrow face-to-face personal insults likely to provoke immediate violence.
- 04
Obscenity uses the community-standards, patently offensive, and serious-value framework; child pornography rules are distinct.
- 05
Defamation, commercial speech, and expressive conduct receive category-specific protection.
- 06
Substantial overbreadth can allow facial challenge when a law sweeps in much protected speech.
Use this attack sequence under time
Frame the issue
Is conduct expressive and is government responsible?
Resolve the next checkpoint
Read the law for content and viewpoint triggers.
Resolve the next checkpoint
Test exact elements of any unprotected category.
Resolve the next checkpoint
Choose facial or as-applied challenge and remedy.
Finish the conclusion
Consider vagueness and prior restraint.
Common wrong turns
- Offensive or hateful ideas are not a standalone unprotected category.
- The government cannot create viewpoint discrimination inside an unprotected category.
- A listener's hostile reaction usually cannot justify suppressing the speaker.
Worked example
A statute bans public statements that 'disrespect the mayor' but allows praise.
The law discriminates by viewpoint and is unconstitutional. Disrespect is not an unprotected category, and the government cannot suppress criticism because of its message.
Practice this topic
The First Amendment and its limits
The First Amendment says Congress shall make no law abridging the freedom of speech or of the press. Cornell describes freedom of speech as the right to speak, write and share ideas without government punishment, and lists circumstances where government may restrict speech, including obscenity, certain regulation of indecency, defamation and incitement.
For defamation, Cornell says public figures must prove the statement was made with knowledge of falsity or reckless disregard for the truth, under New York Times v. Sullivan, while private figures must prove a failure to act with reasonable care. Incitement is unprotected when there is intent to incite imminent, likely violations of law directed at a person or group, under Brandenburg v. Ohio.
Prior restraint
Cornell defines prior restraint as government action that prohibits speech before it happens, through a licensing or permit requirement, a judicial injunction or an outright prohibition. Courts typically disfavor it and often find it unconstitutional.
The First Amendment restrains the government, not private actors. Cornell notes companies and private employers can regulate speech on their platforms and in the workplace because the First Amendment applies only to the government.
Frequently asked questions
What is the controlling rule for content regulation, unprotected speech, and overbreadth?+
Content-based speech laws generally require strict scrutiny, and claimed unprotected speech must satisfy the precise elements of a historically recognized category.
How should I analyze content regulation, unprotected speech, and overbreadth on the bar exam?+
Is conduct expressive and is government responsible? Test exact elements of any unprotected category. Choose facial or as-applied challenge and remedy. Consider vagueness and prior restraint.
What does the First Amendment say about speech?+
Congress shall make no law abridging the freedom of speech or of the press, and the First Amendment also protects assembly, petition and religious freedoms.
What must a public figure prove in a defamation case?+
That the statement was made with knowledge that it was false or with reckless disregard for its truth or falsity, under New York Times v. Sullivan.
When is incitement unprotected?+
When the speaker intends to incite imminent, likely violations of law and directs it at a person or group, according to Brandenburg v. Ohio as Cornell describes it.
What is a prior restraint?+
Government action that prohibits speech before it happens, such as a permit or license requirement, an injunction or an outright ban, and courts typically disfavor it.
Does the First Amendment limit private employers?+
No. Cornell says it applies only to the government, so private companies and employers can regulate speech on their platforms and workplaces.
Primary sources
Cornell LII Wex: freedom of speech↗Cornell LII Wex: prior restraint↗Cornell LII: U.S. Constitution, First Amendment↗Governing text for content regulation, unprotected speech, and overbreadth
Constitution of the United States, full text (National Archives) ↗