Free Speech
Almost every speech question turns on one sorting decision: is the government regulating what is said, or just where, when, and how? Sort first; the test follows.
The master sort
- Regulates the topic or viewpoint of speech—“no political signs,” “no criticism of the mayor”
- Viewpoint discrimination is the worst flavor—virtually never survives
- Test: necessary to a compelling interest (Reed v. Town of Gilbert)
- Regulates time, place, or manner—decibel limits, permit rules, sign sizes
- Test: narrowly tailored to a significant interest + ample alternative channels
- “Narrowly tailored” here doesn't mean least restrictive (Ward v. Rock Against Racism)
The city bans amplified music after 10 p.m.—content-neutral, intermediate, probably fine even though it silences Rosa's concert. The city bans amplified protest music after 10 p.m.—content-based, strict scrutiny, probably dead.
Unprotected categories
| Category | The test | 🐚 Example |
|---|---|---|
| Incitement | Directed to producing imminent lawless action + likely to produce it (Brandenburg) | Liv tells the mob outside Rosa's café, “burn it down NOW”—unprotected; a pamphlet urging revolution “someday” is protected |
| Fighting words | Face-to-face insults likely to provoke immediate violence—narrowly construed, statutes almost always overbroad | Noodle screaming personal abuse an inch from Liv's face |
| True threats | Serious expression of intent to commit violence; speaker must be at least reckless about how it lands | Lana's “I know where you park, Rosa, and I'm coming tonight” |
| Obscenity | Miller: prurient interest (community standard) + patently offensive sexual conduct (community standard) + lacks serious value (national, reasonable-person standard) | The value prong is the trap—it's not judged by local taste |
| Defamation | Constitutional overlays: public officials/figures need actual malice (NY Times v. Sullivan); private plaintiffs on public matters need at least negligence | The blog's false exposé on Mayor Noodle needs knowing or reckless falsity |
| Commercial speech | Protected if truthful; regulation of lawful, non-misleading ads gets Central Hudson intermediate scrutiny | Rosa's false “sugar-free” label—no protection; her truthful price ad—protected |
Where the speech happens: the forum doctrine
| Forum | What it is | Standard |
|---|---|---|
| Traditional public | Streets, sidewalks, parks—always open | Content-based = strict; TPM = intermediate |
| Designated public | Government opened it for expression (an auditorium) | Same as traditional, while it stays open |
| Limited / nonpublic | Opened for narrow purposes, or never opened (military bases, airport terminals, courthouse lobbies) | Reasonable + viewpoint-neutral |
Liv leaflets on the courthouse sidewalk—traditional public forum, full protection. Liv leaflets inside the courthouse lobby—nonpublic forum; a reasonable, viewpoint-neutral “no leafleting” rule stands. Ban only anti-government leaflets and it falls anywhere.
Prior restraints & permits
Stopping speech before it happens—injunctions, licensing schemes—is presumptively unconstitutional and carries the heaviest burden. A permit system survives only with definite, objective standards, no unbridled official discretion, and prompt judicial review.
“Parade permits may be denied whenever the chief deems the march contrary to public welfare”—unbridled discretion, facially invalid. Rosa can challenge it without even applying.
Facial attacks: vagueness & overbreadth
Vague: a reasonable person can't tell what's prohibited (“no annoying conduct”). Overbroad: it punishes a substantial amount of protected speech along with the unprotected. Either kills the statute on its face—even for a speaker whose own conduct could have been banned by a narrower law.
Government as something other than regulator: the government's own speech isn't restrained by the Free Speech Clause (monuments, license-plate designs). Public employees speaking pursuant to official duties get no protection (Garcetti); speaking as citizens on public concerns triggers Pickering balancing. Symbolic conduct gets O'Brien intermediate scrutiny when the regulation targets the non-communicative element.
Attack order for any speech question: government action? → protected speech or an unprotected category? → content-based or neutral? → what forum? → prior restraint, vagueness, or overbreadth as the kill shots. The wrong-tier answer choice is always sitting there waiting.
Where the points are
The traps examiners actually set.
- Most tested
- Content-based vs. content-neutral sorting; Brandenburg's imminence + likelihood; the forum ladder; unbridled-discretion permit schemes.
- Classic traps
- “Offensive” as unprotected (it isn't—offensiveness alone is protected); Miller's value prong judged locally (national standard); treating airports and military bases as public forums; TPM restrictions needing least-restrictive means (they don't); forgetting ample alternative channels.
Keep going: Con Law Attack Sequences Speech & Religion MEE guide Scrutiny deep dive