Constitutional Law

Free Speech Outline

1. What type of speech does the government restriction cover?

a. If you can’t really tell what is being prohibited, the restriction is probably
unconstitutionally vague. Discuss.
b. If you can basically tell what it covers, go to step 2.
2. Does the restriction just relate to the government’s own speech? (E.g., Texas’s
license plate program in Walker). Discuss. If so, no viable free speech claim.
3. Does the restriction cover expressive conduct? If so, do the O’Brien test.
4. Now think about the scope of the speech restriction.
a. Is it generally applicable, or does it just apply to gov’t property?
i. If so, analyze whether the restriction is content-based or content-
neutral. Note that there may be arguments both ways here.
1. If content-based, do strict scrutiny: is the restriction
necessary to achieve a compelling government interest?
a. Remember the Renton carve-out: if it is content-
based but was only passed from concern about the
“secondary effects” of the speech, there is an
argument for treating it as content neutral and
applying intermediate scrutiny instead.
2. If content-neutral, do intermediate scrutiny, as set forth in
Ward v. Rock Against Racism: does the regulation promote
a substantial government interest that would be achieved
less effectively absent the regulation? And does it leave
open ample alternative channels of communication?
ii. If it just applies to gov’t property, move to 4(b).
b. Is it for a traditional public forum? (e.g., sidewalks, public parks)
i. If so, analyze whether the restriction is content-based or content-
neutral. Note that there may be arguments both ways here.
1. If content-based, do strict scrutiny.
2. If content-neutral, do intermediate scrutiny.
c. Does it apply to a designated public forum? (example: any government
property that, although not traditionally a public forum, is generally
opened up to the public for all speech purposes)
i. If so, the traditional public forum rules apply.
d. Does it apply to a limited public forum? (example: any government
property that has not been generally opened up to the public for all speech
purposes, but has been opened for specific groups or specific topics)
i. If so, content-based restriction to preserve the scope of the forum
are okay. (Example: if a public school is opened up after hours for
student clubs, it’s okay to exclude non-student activities.) But
 once speech is within the scope of the forum, any restrictions as to
the speech must be reasonable and viewpoint neutral.
e. Does it apply to a nonpublic forum? (example: government properties that
are not generally available for speech, e.g. military bases, airports)
i. If so, again, it’s okay for the restriction to be content-based but it
still must be reasonable and viewpoint-neutral. Analyze whether
that standard is met here.