Terms:

Overbroad Regulation:
A regulation of speech that is unconstitutional because it regulates substantially more speech than is permissible under the First Amendment.

Content-Based Regulation:
A regulation of speech or expression that is based on the substance of the message being communicated, rather than just the manner or method in which the message being expressed.

Content-Neutral Restriction:
A restriction on the manner in which an expression can be communicated or conveyed. These restrictions apply equally to all communications, regardless of the message or view being espoused. (Content-neutral restrictions are also sometimes known as "time, place and manner" restrictions.

Commercial Speech:
Speech or communication whose primary purpose is to sell a product or service or is part of the sale of a product or service. Such speech, while protected by the First Amendment, is not protected to the same degree as is speech that is intended to convey a political message or to espouse a viewpoint.

In Subchapter 1, we mentioned that different categories of speech are granted different levels of First Amendment protection and that this affects the limitations which may be imposed on these categories of speech. We also identified several areas of speech that fall into the unprotected speech categories. The regulations regarding even this latter category, however, are somewhat limited in their scope, despite the “unprotected” nature of the speech involved.

Regardless of the category of speech involved, there are two limitations which are consistently imposed on the regulation of speech. First, a law must not be overly broad, and second, a law must not be unconstitutionally vague. A failure on either part will invalidate a law, even if the speech intended to be restricted is otherwise unprotected. A law is overbroad if it regulates substantially more speech than is permissible in the Constitution. One good example of this is the Northernstate law hypothetical from Subchapter 1 in which “photographs of naked persons” are banned. While the law might be intended to regulate only pornography, which is a permissible regulation, the effect is also to regulate pictures (expressions) which are not pornographic in nature. A law is unconstitutionally vague if it would be impossible for a reasonable person to determine what speech or conduct is or is not permissible and would force a reasonable person to guess at its meaning. See Connally v. General Construction Co., 269 U.S. 385 (1926).

EXAMPLE: Southernstate jails and courts are clogged in part due to the number of criminal and civil cases stemming from bar fights. In an effort to prevent these occurrences before they start, the state legislature enacts a statute which prohibits “words or conducts which are likely to incite violence or lead to a fight.” The law is both overbroad and unconstitutionally vague and will be struck down.

Once it has been determined that a law limiting expression is neither overbroad nor unconstitutionally vague, we must determine whether the law regulates the content of speech or whether it is "content neutral". This is vital in any First Amendment analysis because content-based regulations will generally be subject to strict scrutiny review while content-neutral regulation must pass only intermediate scrutiny.

Content-Based Regulation

While it is generally true that a content-based regulation must pass strict scrutiny, laws regulating the unprotected categories of speech discussed above are not be subjected to this level of review. So long as such laws are not overly broad or unconstitutionally vague, the regulation of unprotected categories of content (pornography, fighting words, etc) will pass muster under the First Amendment. A content-based regulation of any other area of speech, however, is presumptively unconstitutional. To save such a statute, the government must show that the regulation is narrowly drawn and necessary (narrowly tailored) to achieve a compelling government interest. Application of this standard will almost invariably lead to invalidating the law in question.

EXAMPLE: A Washington D.C. statute bans individuals from displaying signs criticizing foreign governments or from congregating in groups of three or more within 500 feet of a foreign embassy. Due to the fact that whether or not picketing in front of an embassy is permitted is determined by the content of the speech, this is a content-based restriction and will not survive strict scrutiny review. Boos v. Barry, 485 U.S. 312 (1988).

In Boos, the Court discussed an important distinction between "content-based" regulations and "viewpoint-based" regulations. The law in question was certainly viewpoint neutral insofar as it did not seek to regulate only speech expressing some particular opinion regarding some particular government. However, the fact that the regulation “does not favor either side of a public controversy … [but does prohibit] public discussion of an entire topic” is enough to render it content-based and thus subject to strict scrutiny. Boos at 319. So, content-based regulations can be split into two sub-categories, each of which is subject to strict scrutiny. First, if a law regulates the expression of some viewpoint, it is content-based. Second, if a law regulates the discussion of some topic it is also content-based.

EXAMPLE (1) A Northernstate law prohibits the display of signs which are derogatory towards the pursuit of education within 250 feet of schools. Joey Ramone is walking past a school wearing a t-shirt on which is written “Forget High School – Join a Rock Band!” The prohibition against expressing a particular viewpoint will not pass strict scrutiny review.

EXAMPLE (2) Another Northernstate law prohibits displaying signs either advocating or criticizing the legality of abortions within 100 feet of an abortion clinic or any hospital or doctor’s office. This viewpoint-neutral regulation which limits the freedom to express any opinion on a particular topic will be subject to strict scrutiny.

Content- Neutral Regulations

Content-neutral speech restrictions are restrictions which “are justified without reference to the content of the regulated speech….” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976). Unlike content-based regulations, which are subject to strict scrutiny, content-neutral restrictions will not be found unconstitutional “provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.” Virginia Pharmacy at 771. Content-neutral regulations are also called “time, place and manner restrictions,” as the regulation seeks not to limit any particular type of speech, but merely to regulate the circumstances under which the speech may take place.

EXAMPLE: Washington D.C. passes a law prohibiting the display of any signs within 25 feet of an embassy. The legislative history indicates that the law is intended to “reduce the amount of federally-funded security required to be provided to foreign dignitaries by reducing security risks.” If a court finds that this is a significant governmental interest and that alternative channels of communication have been left open, the law will not be struck down.

Time, place, and manner restrictions, however, might be facially valid but unconstitutional in their application. If a content-neutral restriction is valid on its face but is applied in a manner which tends to regulate only certain topics or certain viewpoints, it might well be found unconstitutional despite its innocent appearance.

EXAMPLE: New Arizona law requires that any persons wishing to parade or demonstrate must obtain a permit from the fire marshal and the chief of police. In the twenty-three years since the ordinance was passed, not a single permit request has ever been denied. This year, an organizer wants to put on the first gay pride parade ever in New Arizona. Upon properly submitting a permit request, he is told that the chief of police has denied the request because “this issue is so explosive that I’m afraid there will be violence.” The organizer offers to pay for extra security, but his requests for reconsideration are rebuffed. If it appears to a court that this law is being applied in a way to restrict expression of a certain viewpoint, the law will be invalidated as unconstitutional.

Commercial Speech

Commercial speech holds a special place in First Amendment analysis. It is not an unprotected category of speech, nor is it afforded the same level of protection as non-commercial speech. In addition, there are sub-categories within commercial speech. Truthful commercial speech is afforded protection while false or deceptive commercial speech is not protected. The government can ban or forbid false commercial speech and can also ban commercial speech that proposes or encourages some illegal act (e.g., advertising illegal drugs for sale). Lawful products which may nonetheless be harmful, however, such as cigarettes, cannot have their advertising limited in any way which would not also apply to other, non-harmful products.

EXAMPLE (1) Coca-Cola develops a new advertising campaign for which the slogan is “Coke: Healthy and refreshing, and less sugar than your kid’s breakfast cereal. It’s good for you!” The claims would likely be found deceptive and therefore could be properly prohibited.

EXAMPLE (2) Jolt Cola has also been hard at work developing its new advertising materials. The Madison Avenue gurus in this case are using the slogan “Jolt. Lots and lots of caffeine and sugar to keep you zooming along!” While the product might be harmful, if the claims are neither false nor deceptive, this commercial speech will be protected under the First Amendment.

Because lawyer advertising is a form of commercial speech, the First Amendment allows for limitations to be imposed. Because “commercial speech” extends beyond phone book advertisements, billboards, and newspaper and television advertisements, it is important to understand the full scope of commercial speech as it relates to lawyer advertising. Office signs, business cards, letterheads and brochures all constitute advertisements. Announcements, letters sent by mail and recorded phone messages also count. It is prohibited for a lawyer to include false or misleading statements or statements which create unjustified expectations in any of these materials. Although it goes beyond the scope of First Amendment issues, it is important to note that a lawyer cannot use another person, such as a paralegal, a legal assistant, or other office staff, to circumvent regulations regarding advertising. A state can prohibit lawyers from soliciting business either in person or by telephone except in certain situations. A state can also prohibit a lawyer from holding herself out to the public as a “specialist” without some form of certification. While the First Amendment protects freedom of speech, commercial speech can be limited in these ways, and others, because of its status as speech that is less worthy of protection.

EXAMPLE (1) Arthur, an attorney, is at a family function when his cousin mentions some legal trouble she is currently experiencing. Arthur hands her a card and says “Call me tomorrow, I’ll help you.” While this is a solicitation for business, many states permit this form of commercial speech, because it is addressed to close friends and/or relatives.

EXAMPLE (2) Arthur’s cousin is grateful for the help and provides him with a phone list of all of her co-workers at a major company in town. Arthur decides to call everyone on the list to tell them what a great job he did for his cousin and to offer his legal services. This form of solicitation may be banned by the states without violating the First Amendment.

The last First Amendment issue requiring our attention involves public forums. A content-neutral regulation of speech in a public forum may narrowly limit speech, but only when necessary to achieve a significant government purpose. In addition, the regulation must leave open an adequate alternative channel of communication. While the regulation must be narrowly tailored, the government need not use the least restrictive means of regulation possible.

EXAMPLE: Recent rock concerts in a local city park have caused numerous complaints from nearby residents. The city council therefore decides that any future concert promoters will have to use sound equipment belonging to the city and operated by a city employee, and an ordinance to that effect is passed. Fuzzy Fosborne is putting on a show next month and offers to abide by a set maximum volume level, but claims that his sound equipment and his engineer are required in order to produce certain special effects which are “integral to the show”. Although Fuzzy’s proposal would be a less-restrictive means for the city to achieve its goal, the city's chosen means would likely survive a First Amendment challenge. The concert can still take place, and by controlling the volume itself, the city can ensure compliance with the ordinance.

Two classic "public forums" are sidewalks (except in front of post offices) and public parks. Sometimes, property will also be deemed a designated "public forum" when an otherwise non-public place is made available for a variety of uses (also sometimes referred to as a limited public forum). For example, if rooms in a public school are open for use by any student group, that room may attain the status of a public forum. A public forum cannot be made available for one group (e.g., “Science Club”) but not another (e.g., “Atheists After-School”). If the doors are open, the space must be available based on content-neutral and viewpoint-neutral grounds. Only time, place, or manner restrictions may be applied. The government can, at any time, revoke the status of a "designated" public forum (a room in a public school), but may not do so for a "traditional" public forum (e.g., a public sidewalk).

EXAMPLE: The city of Saugatuck decides to permit any city residents to use its school classrooms on the weekends on a first-come-first-served basis. There is a backup plan in place such that if the demand becomes excessive, the rooms will be available based on a random lottery which will allow users to be selected once each month. The system has worked quite well for the past several months. Last week a group calling themselves “Mormons for Moses” won the lottery to use a room for the month. Offended by the beliefs of this group, the city council decides to exclude them at all costs, and announces that the school will no longer be available for public use. Because the city council is simply choosing to end the designation of this place as a public forum, there is no First Amendment violation here. The city is no longer allowing the expression of any ideas in this traditionally non-public forum, which is a permissible time, place or manner restriction.

Finally, there are non-public forums which the government can close to speech. In these areas, speech can also be regulated as long as the regulation is reasonable and viewpoint neutral. These locations include military bases, the areas outside prisons and jails, and airports. In addition, the space sold on city buses is not a public forum.

EXAMPLE: Prudeville derives a lot of income from the advertisements on its city buses. Last week, a beer company offered to double the fees currently paid by advertisers if the city would let them run their ads. The city refused. The would-be-advertiser does not have a wining First Amendment argument, as the city can reasonably limit the topics of speech on its buses.