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Constitutional Law: First Amendment: Speech, Press, and Assembly

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All guide sections

First Amendment: Speech, Press, and Assembly

What this domain tests

This domain tests the content-based/content-neutral distinction, forum analysis, prior restraints, and doctrine for incitement, defamation, obscenity, commercial speech, and symbolic expression.

Core rules

  • Content-based laws: strict scrutiny; the government must prove a compelling interest and narrow tailoring.
  • Content-neutral time, place, and manner rules: intermediate scrutiny; narrowly tailored to a significant interest, with ample alternatives.
  • Forums: traditional public forums, designated forums, limited forums, and nonpublic forums carry different access rules.
  • Prior restraint: heavy presumption against constitutionality; unbridled discretion in permitting is invalid.
  • Incitement: Brandenburg requires imminent lawless action and likelihood.
  • Defamation: public officials and public figures must prove actual malice under New York Times v. Sullivan.
  • Commercial speech: Central Hudson intermediate test.

Worked example

A city ordinance bans any sign on a public sidewalk that criticizes city officials. The sidewalk is a traditional public forum, and the ban is viewpoint discrimination. Content-based restrictions get strict scrutiny; the city cannot show a compelling interest or narrow tailoring. The ordinance is invalid. A content-neutral permit rule with narrow, objective criteria and prompt review would be analyzed differently.

Traps

  • Government speech is not subject to the Speech Clause.
  • Public employees, students, and prisoners have reduced speech rights.
  • Overbreadth and vagueness can invalidate a law even for a plaintiff not directly covered.
  • Symbolic speech uses O'Brien when conduct is regulated.
  • Press rights are generally equal to public rights, not special access rights.