Media Law for the Real World: How do courts analyze free speech cases?

A guide to how the Supreme Court analyzes free speech cases.

Before we talk about why America protects some of the most offensive, controversial, and uncomfortable forms of speech, we need to understand one thing:

👉 How courts decide if a speech restriction is allowed at all.

(Spoiler alert: it typically isn’t.)

First Amendment law starts with this foundational question:

| Is the government regulating what you’re saying, who is saying it, and how you’re saying it?

Those three questions determine the outcome of a First Amendment claim.

Let’s dive into it.

---

Content-Based Regulations

A law is considered “content-based” when the government must examine the actual message you’re delivering to enforce a punishment. If a regulation depends on what someone is expressing, it will be evaluated using strict scrutiny, the highest level of judicial review.

Here’s the strict scrutiny test that the courts use:

1. The regulation must be necessary,

2. Employ the least restrictive means, and

3. Advance a compelling government interest

This is why the Supreme Court strikes down laws prohibiting flag burning. (Texas v. Johnson) In this case, the government objected to the message of disrespect for the flag, not the actual conduct.

---

Viewpoint-Based Discrimination

Viewpoint-based discrimination is a form of content-based regulation, but worse. It’s the most unconstitutional form of regulation. This happens when the government takes a position on a topic.

For example: the government allowing pro-war signs in a protest but banning anti-war signs in a protest would be a form of viewpoint-based discrimination. They aren’t saying “you can’t protest the war here,” they’re saying “you can’t protest against the war here.”

Courts use the same standard of strict scrutiny when analyzing a viewpoint-based discrimination regulation.

---

Content-Neutral Regulations (Time/Place/Manner)

But not all regulations go after the content of your speech — some of them go after the logistics. This is also known as time/place/manner regulation.

Examples of content-neutral regulations are:

• Noise ordinances

• Rules preventing protesters from blocking hospital entrances

• Parade permits

When reviewing a content-neutral case, courts will use intermediate scrutiny, also known as the O’Brien Test. (United States v. O’Brien)

A content-neutral regulation is constitutional if it:

1. advances an important or substantial government interest

2. that is unrelated to suppression of speech and

3. is narrowly tailored to only incidentally restrict First Amendment freedoms

In other words, the government can regulate logistics, but not ideas.

---

Before we can understand the most controversial speech cases in America, we have to understand the question every court starts with: What kind of regulation is this?

Once you understand that, the First Amendment starts to make a lot more sense.