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Constitutional Law • First Amendment - Free Speech
CONLAW#143
Legal Definition
Content-based restrictions are subject to strict scrutiny.
Plain English Explanation
The government is sometimes allowed to put restrictions on speech, especially in public places. The level of justification the government needs to restrict speech depends on whether the restriction is based on the content of the speech or not.
Content-based restrictions, meaning the restriction is based on what is being said (the content), are presumed to be unconstitutional and the government has a very high bar to justify them. This high standard is called "strict scrutiny." To pass strict scrutiny, the government must prove that the restriction serves a "compelling government interest" (a really important goal) and that the restriction is "narrowly tailored" to achieving that goal (meaning there isn't a less restrictive way to do it).
Content-based restrictions, meaning the restriction is based on what is being said (the content), are presumed to be unconstitutional and the government has a very high bar to justify them. This high standard is called "strict scrutiny." To pass strict scrutiny, the government must prove that the restriction serves a "compelling government interest" (a really important goal) and that the restriction is "narrowly tailored" to achieving that goal (meaning there isn't a less restrictive way to do it).
Hypothetical
Hypo 1: The town of Hypoville passes an ordinance banning any speech in its public park that criticizes the mayor or town council. Sam wants to hold a rally in the park to protest corruption in the town government. The town denies Sam a permit, saying his speech would violate the ordinance. Result: This is a clear content-based restriction on speech in a traditional public forum (parks are considered a quintessential public forum). The town would have to prove the restriction passes strict scrutiny. While preventing corruption could potentially be a compelling interest, banning all criticism of the government is not narrowly tailored to that interest at all. There are many less restrictive ways to address corruption. So this ordinance would very likely be found unconstitutional under strict scrutiny.
Hypo 2: New Hypoland has a law requiring a permit for any parades or rallies on public streets. The law says permits should be granted on a first come first serve basis, regardless of the content of the rally. The KKK applies for a permit to hold a White Power rally on a specific date. The permit is denied because another group called "New Hypoland Hates Hate" previously filed for a permit first on the same date. The city council has publicly recognized the KKK's message as abhorrent, so the KKK sues for denying their permit. Result: This law is content-neutral, so it would not face strict scrutiny. Because the permit rule does not consider the content of the speech and grants permits based on timing only, it does not trigger the extra protection for content-based restrictions. Ultimately, the KKK's permit was denied because someone else asked first. This is an example of a rule restricting speech that would likely be constitutional since it is content-neutral, unlike the previous example.
Hypo 3: Sam wants to hold a rally in support of a controversial political candidate in the Hypoville town square. The town has an ordinance prohibiting the use of any sound amplification devices in the town square. Sam challenges the ordinance. Result: This ordinance is not a content-based restriction - it applies to all speech in the square regardless of its message. So strict scrutiny would not apply. A content-neutral law like this would face a lower level of scrutiny and would likely be upheld if it is a reasonable time, place or manner restriction on speech. Banning all amplification in a public square is likely reasonable and could be justified by important government interests like preventing excessive noise and maintaining the character of the area. So Sam would likely lose his challenge as this law does not trigger strict scrutiny.
Hypo 2: New Hypoland has a law requiring a permit for any parades or rallies on public streets. The law says permits should be granted on a first come first serve basis, regardless of the content of the rally. The KKK applies for a permit to hold a White Power rally on a specific date. The permit is denied because another group called "New Hypoland Hates Hate" previously filed for a permit first on the same date. The city council has publicly recognized the KKK's message as abhorrent, so the KKK sues for denying their permit. Result: This law is content-neutral, so it would not face strict scrutiny. Because the permit rule does not consider the content of the speech and grants permits based on timing only, it does not trigger the extra protection for content-based restrictions. Ultimately, the KKK's permit was denied because someone else asked first. This is an example of a rule restricting speech that would likely be constitutional since it is content-neutral, unlike the previous example.
Hypo 3: Sam wants to hold a rally in support of a controversial political candidate in the Hypoville town square. The town has an ordinance prohibiting the use of any sound amplification devices in the town square. Sam challenges the ordinance. Result: This ordinance is not a content-based restriction - it applies to all speech in the square regardless of its message. So strict scrutiny would not apply. A content-neutral law like this would face a lower level of scrutiny and would likely be upheld if it is a reasonable time, place or manner restriction on speech. Banning all amplification in a public square is likely reasonable and could be justified by important government interests like preventing excessive noise and maintaining the character of the area. So Sam would likely lose his challenge as this law does not trigger strict scrutiny.
Visual Aids
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