First Amendment Rights Review

General Approach


The person challenging the government restraint on speech is always trying to argue for the most demanding standard of review (strict or intermediate scrutiny) and the government, defending the restriction on speech, is always trying to argue for the least demanding standard of review (intermediate or reasonableness or rationality). Each side, however, always needs to alternatively argue that even under the alternative standard(s) proposed by their opponent, they would still win.


In arguing over the standard of review, we start with the proposition that restrictions on expression sometimes get strict scrutiny, but there are three methods available to the government to argue for some reduced level of scrutiny: (1) the nature of the speech involved (for example, the speech is either not protected at all or is lesser value speech such as commercial speech); (2) the place of the speech (for example, the location of the speech is government property that is classified as a nonpublic forum so that the speaker is not entitled to access; and (3) the nature of the regulation (for example, the regulation is a content-neutral time, place or manner restraint or the regulation is a restriction on conduct that only incidently restrains expression). Using these three types of arguments, the government can argue that less scrutiny needs to be given to the restraint on speech. For example, the government can argue that the speech is unprotected and a restraint on such speech deserves no form of heightened First Amendment scrutiny. This argument will focus on whether the regulation is limited to restricting unprotected expression or not. A second example would be a government argument that the regulation is a time, place or manner restraint and therefore should be analyzed using intermediate scrutiny even though the speech is fully protected speech occurring in a traditional public forum. A third example would be a government argument that speech can be excluded as long as the restriction is reasonable because the speaker seeks access to a place that is a nonpublic forum and the government can therefore exclude the speech if it has a reasonable, non-viewpoint-based reason to justify its restriction. Combinations of these kinds of scrutiny-reducing techniques can be employed by the government in the same case.


In responding to these arguments, the speaker can try and refute each of the government’s contentions. For example, the speaker can argue that the speech does not fall within an unprotected category and deserves no lower level of scrutiny based on its content. In addition, the speaker can argue that the regulation is not a valid time, place or manner regulation because it is based on content, is not narrowly tailored and does not leave open ample alternative avenues for communication of the speaker’s message. A third type of response by the speaker would be that the place of the speech is a traditional or designated public forum to which the speaker is entitled to access and not a nonpublic forum.


These same 3 techniques are employed by the speaker to argue affirmatively for heightened scrutiny as well. The speaker can make arguments based on: (1) the nature of the speech (for example, the speech is political speech or another variety of fully protected speech or is speech communicated by a uniquely valuable method of communication); (2) the place of the speech (for example, the place of the speech is a traditional public forum to which the speaker is entitled to access or private property such as the speaker’s residence); and (3) the nature of the regulation (for example, the regulation is content-based or substantially vague or overbroad or a standardless prior restraint scheme). Using these three types of argument, the speaker can argue that more scrutiny needs to be given to the restraint on speech. For example, the speaker can argue that the speech is fully protected expression excluded from a public forum on the basis of its content to convince the court to apply strict scrutiny review. A second type of argument would be that the government is employing an unconstitutional standardless prior restraint scheme to deprive the speaker of the right to communicate a message. A third type of argument would be that the speech is regulated by the use of a substantially overbroad statute that must be struck down on its face. Combinations of these kinds of scrutiny-enhancing techniques can be employed by the speaker in the same case.


In responding to these arguments, the government can try and refute each of the speaker’s contentions. For example, the government can argue that the speech does not fall within a fully protected category, is not being regulated based on its content and is not occurring in a public forum so that strict scrutiny is not the appropriate level of scrutiny. In addition, the government can argue that the regulation is not a standardless prior restraint scheme because it limits the discretion of the government official making the permit decision by the use of clear, appropriate and content-neutral standards. A third type of response by the government would be that the regulation of the speech is not accomplished by the use of a substantially overbroad regulation and that any marginal overbreadth can be taken care of by as-applied challenges based on facts not currently before the court.


Once an appropriate standard of review has been identified (for example, one of the varieties of intermediate scrutiny or strict scrutiny), you need to apply the facts to the standard. This always entails, at the least, a need to examine the nature of the governmental interest and the fit between the ends and means. Its also usually involves a consideration of whether there are more narrowly tailored means available either because the government needs to use the least restrictive alternative under strict scrutiny or because an examination of alternatives can help to demonstrate that the means are substantially broader than necessary and thus do not qualify as narrowly tailored as required under intermediate scrutiny.


Since exam questions will be posed in terms of making arguments on behalf of the speaker as well as the government, you will have to present alternative arguments that are available to each side. These arguments will use the techniques described above to argue for an appropriate standard of review and then apply that standard to the facts of the question.