First Amendment: Freedom of Speech Helpful questions to consider in your analysis 1.

Is the action taken by the government or someone acting in conjunction with the government? [This is always your first question in any Con Law issue] 2. Does the regulation substantially affect a persons legal right or practical ability to express himself? [Asking yourself this well help you decide whether freedom of speech is implicated, though on the exam, she will most likely tell you whether to discuss it in the call of the question] a. If commercial speech, go to #8 3. Is the speech unprotected? [obscenity, fighting words, etc.] 4. If unprotected, is it content-neutral? a. If yes, presumptively valid b. If no, then strict scrutiny (SS) 5. If protected speech, is the regulation content-based or neutral? a. Content-based=SS b. Neutral=presumptively valid 6. Is the regulation a time, place, or manner regulation? 7. Is it regulating a public forum? a. If yes, the regulation must: [If no to any, 1st A violation] i. Serve significant government interest ii. Be narrowly drawn iii. Leave adequate alternative channels b. If non-public, government owned, must be: i. Reasonable (does not have to be most reasonable) and ii. Viewpoint-neutral c. If private property, regulation must be viewpoint neutral and reasonable in relation to purpose 8. Commercial Speech: Proposes a commercial transaction [This is protected speech, but to a lesser extent] a. Is the expression protected by the 1st A? (Must not propose an illegal transaction and cannot be likely to mislead/deceive) b. Is the asserted government interest substantial? c. Does the regulation directly advance the government interest? d. Could the government interest be served as well by a more limited restriction on commercial speech? (If so, the excessive restrictions cannot survive, though it does not have to be the least restrictive measure) 9. Is the regulation overbroad, vague, or a prior restraint?