Free Speech

Free SpeechThe doctrines/terminology courts use in analyzing free speech are numerous and complex.  Sometimes the court uses its own terminology without even defining or conversely using the definition without mentioning the term.  This can make learning about constitutional protections of free speech difficult.

This page is intended to be a reference section where one can look up free speech terminology.

Commercial Speech

Commercial speech is typically defined as that which “does no more than propose a commercial transaction.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).

Content Based

“[L]aws that cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message [the speech] conveys.”  Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015) (internal quotation marks omitted).

Overbroad

“The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 US 234, 244 (2002).

Viewpoint

“Government discrimination among viewpoints—or the regulation of speech based on the specific motivating ideology or the opinion or perspective of the speaker—is a more blatant and egregious form of content discrimination.” Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230 (2015) (internal quotation marks omitted).

“The State’s power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.” Good News Club v. Milford Central School, 533 US 98, 106-07 (2001) (internal citations omitted).

Doctrines

Military Necessity

“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.”  Parker v. Levy, 417 U.S. 733, 758 (1974).

Professional Speech

“This issue involves a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the press guaranteed by the First Amendment.” Lowe v. SEC, 472 US 181, 228 (1985) (White, J., concurring).

Forum Analysis

“[T]he Court has adopted a forum analysis as a means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 800 (1985).

Public Forum

“[W]hen the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 800 (1985). “Public streets and parks fall into this category.” Id. at 802.

“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.  The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent.”  Id. at 802 (internal citations omitted).

Government Speech

“When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech.  Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.” Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239, 2245-46 (2015) (citations omitted).

Low Value Speech

Free Speech“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.  These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 US 568, 571-72 (1942).

Fighting Words

“‘[F]ighting words’ when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight.” Chaplinsky v. New Hampshire, 315 US 568, 573 (1942).

Words that are “likely to provoke violent reaction.” Cohen v. California, 403 US 15, 21 (1971).

Obscenity

“[S]ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Roth v. United States, 354 US 476, 487  (1957) (footnotes omitted).

True Threats

“‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 US 343, 359 (2003).

Scrutiny

“The First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011).

Strict Scrutiny

“Laws that burden political speech are accordingly subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806, 2817 (2011) (internal quotation marks omitted).

Intermediate Scrutiny

Places the burden on the government to prove the law is “substantially related to the achievement of an important governmental objective.” Adarand Constructors, Inc. v. Pena, 515 US 200, 220 (1995) (internal quotation marks omitted).

Rational Basis Scrutiny

Places the burden on the individual to prove “if there is any reasonably conceivable state of facts that could provide a rational basis” for the law.  FCC v. Beach Communications, Inc., 508 US 307, 313 (1993).

Prior Restraint

“Our cases addressing prior restraints have identified two evils that will not be tolerated in such schemes. First, a scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship…Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible.” FW/PBS, Inc. v. Dallas, 493 US 215, 225-26 (1990) (internal citations and quotation marks omitted).

Public concern

“Speech deals with matters of public concern when it can be fairly considered as Free Speechrelating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011) (internal citation omitted).