The First Amendment
Free Speech: Doctrine
When government regulates speech, courts decide if it's allowed using a structured set of legal tests. Master these and you can predict outcomes.
The First Amendment in summary
The First Amendment provides: "Congress shall make no law … abridging the freedom of speech." Despite its absolutist text, the Supreme Court has held that the protection is not unlimited. The Court applies different doctrinal tests depending on the type of speech and the nature of the regulation.
Content-based vs. content-neutral
The threshold inquiry: does the regulation target speech because of its content, or for reasons unrelated to content (such as time, place, or manner)?
Content-based regulations are presumptively unconstitutional and trigger strict scrutiny. Content-neutral regulations receive intermediate scrutiny under the O'Brien test.
Strict scrutiny
- The regulation must serve a compelling government interest
- It must be narrowly tailored to that interest
- It must use the least restrictive means available
Strict scrutiny is, in Gerald Gunther's famous phrase, "strict in theory, fatal in fact." The government almost always loses.
Intermediate scrutiny: the O'Brien test
O'Brien applies to content-neutral regulations of conduct that incidentally burden expression — the canonical example being draft-card burning. The defendant in O'Brien burned his draft card in protest of the Vietnam War; the Court upheld the conviction because the law targeted destruction of selective service certificates, not anti-war messaging.
Categorical exclusions
Some categories of speech receive no First Amendment protection at all:
• Incitement to imminent lawless action (Brandenburg v. Ohio, 1969)
• True threats of violence (Virginia v. Black, 2003)
• Obscenity meeting the Miller test (Miller v. California, 1973)
• Fighting words (Chaplinsky v. New Hampshire, 1942)
• Child pornography (New York v. Ferber, 1982)
• Defamation with actual malice (NYT v. Sullivan, 1964)
Why doctrine matters
On a bar exam or in practice, the analysis flows in a fixed sequence: (1) Is the speech in an unprotected category? If yes, it can be regulated without scrutiny. (2) If protected, is the regulation content-based or content-neutral? (3) Apply the appropriate scrutiny test. Master this flowchart and you can analyze any First Amendment problem.
The simple version
The First Amendment says "Congress shall make no law … abridging the freedom of speech." But that's not literally true. The government CAN restrict speech sometimes — courts have built rules for when it's allowed.
The whole framework boils down to one question: how good is the government's reason?
The flowchart
When the government tries to restrict speech, courts ask:
Step 1: Is this even "speech" worth protecting? Some categories aren't. (See "the 6 unprotected categories" below.)
Step 2: If yes, is the law about what people are saying, or about where/when/how they're saying it?
• If about content → Strict Scrutiny (basically: government almost always loses)
• If about manner only → Intermediate Scrutiny (government often wins)
Strict Scrutiny: "really, really good reason"
- Government needs a damn good reason (called a "compelling interest")
- The law has to only target that specific problem
- And there has to be no other way to fix it
This is the test courts use when a law restricts speech because of what's being said. Almost no law passes this. Lawyers say it's "fatal" — meaning the government almost always loses.
Intermediate Scrutiny: "decent reason"
If the law isn't about content — like "you can't have loudspeaker rallies at 3am" — it gets a more relaxed test called the O'Brien test: the government just needs an "important interest" (not "compelling"), and the restriction has to be reasonable.
The classic case: O'Brien himself
In 1966, a guy named David O'Brien burned his draft card on the steps of a Boston courthouse to protest the Vietnam War. He got arrested. He argued: "This is symbolic speech! It's the First Amendment!"
The Court said: actually, the law isn't about your message — it's about the destruction of government documents. So they applied the relaxed test, the law passed, O'Brien lost.
The 6 unprotected categories
Some speech gets no First Amendment protection:
1. Incitement to immediate violence ("kill that man right now!")
2. True threats ("I'm going to murder you tomorrow")
3. Obscenity (very narrowly defined — basically hardcore porn that has no value)
4. Fighting words (face-to-face insults that would make a reasonable person fight)
5. Child pornography
6. Defamation (lies that damage someone's reputation, with extra rules for public figures)
The whole concept in one sentence
The government can restrict speech sometimes — but only with a really good reason, and the more the law is about content, the better that reason has to be.
Doctrine mastered!
You crushed it. Strict scrutiny, O'Brien, the unprotected categories — locked in.