Free Speech Strict Scrutiny
What is the Free Speech Strict Scrutiny?
Content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny. The government must prove the restriction is narrowly tailored to serve a compelling government interest.
Definition
Under the First Amendment, content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny, the most demanding level of judicial review. A content-based restriction is one that applies to particular speech because of the topic discussed or the idea or message expressed. Under strict scrutiny, the government must demonstrate that the restriction serves a compelling government interest and is narrowly tailored to achieve that interest, meaning there are no less restrictive alternatives available.
The foundational case for this framework is Reed v. Town of Gilbert (2015), which clarified that a law is content-based on its face if it draws distinctions based on the message a speaker conveys, regardless of the government's purpose or motive. This bright-line rule simplified the inquiry: if the law targets content, strict scrutiny applies automatically. Content-neutral laws, by contrast, receive intermediate scrutiny under the time, place, and manner framework.
Certain categories of speech receive lesser or no First Amendment protection: obscenity, true threats, incitement (Brandenburg v. Ohio, 1969), fighting words (Chaplinsky v. New Hampshire, 1942), and fraud. For all other categories of speech, content-based restrictions face a heavy presumption of unconstitutionality. The government rarely satisfies strict scrutiny in free speech cases, making this standard effectively fatal in most instances. Viewpoint-based restrictions, a subset of content-based restrictions that discriminate based on the speaker's perspective, are virtually never upheld.
Key Elements
- 1The government must be restricting speech or expressive conduct
- 2The restriction must be content-based (targeting speech because of its topic, idea, or message)
- 3The government bears the burden of proving a compelling government interest
- 4The restriction must be narrowly tailored -- no less restrictive alternatives may be available
- 5The restriction must not be overbroad (covering substantially more speech than necessary) or vague
- 6Viewpoint-based restrictions are a subset of content-based restrictions and are virtually always unconstitutional
Landmark Cases
Reed v. Town of Gilbert
576 U.S. 155 (2015)
Clarified that any law that is content-based on its face is subject to strict scrutiny regardless of the government's purpose
Texas v. Johnson
491 U.S. 397 (1989)
Applied strict scrutiny to strike down a flag-burning statute as a content-based restriction on political expression
R.A.V. v. City of St. Paul
505 U.S. 377 (1992)
Held that content discrimination within a category of unprotected speech (fighting words) is subject to strict scrutiny
Brown v. Entertainment Merchants Association
564 U.S. 786 (2011)
Struck down a ban on violent video game sales to minors as a content-based restriction failing strict scrutiny
Exam Tips
- The threshold question is always whether the restriction is content-based or content-neutral -- this determines the level of scrutiny
- After Reed, focus on the face of the law: if it draws distinctions based on content, strict scrutiny applies regardless of government motive
- Remember that viewpoint-based restrictions are always content-based and virtually always unconstitutional
- Check for overbreadth and vagueness as additional grounds for invalidating speech restrictions
Common Mistakes to Avoid
- Failing to distinguish between content-based and content-neutral restrictions -- this is the most critical classification in free speech analysis
- Applying strict scrutiny to content-neutral time, place, and manner restrictions, which receive intermediate scrutiny
- Forgetting that certain categories of speech (obscenity, true threats, incitement, fighting words) receive reduced or no First Amendment protection
Memory Aid
Content-Based = Strict Scrutiny (almost always fatal). Content-Neutral = Intermediate (TPM). Viewpoint-Based = always unconstitutional.