The First Amendment

• Author: Charles D. Kelso; R. Randall Kelso
• Profession: Professors of Law
• Pages: 1340-

Page 1340

The First Amendment to the Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This text encompasses three basic protections.

One protection involves the "freedom of speech, or of the press." The basic doctrine regarding free speech is discussed in Chapter 29. In these cases, the Court applies a different level of scrutiny depending upon whether the speech being regulated: (1) occurs in (a) a public forum or (b) a non-public forum; and (2) whether the regulation is (a) a content-based regulation of speech, focusing on (i) the viewpoint of the speech or (ii) the subject-matter or topic of the speech, or (b) a content-neutral regulation of speech based upon the (i) the secondary effects of the speech or (ii) a concern with only the time, place, or manner of the speech. In a public forum, content-based regulations of speech trigger strict scrutiny, while content-neutral regulations trigger intermediate review. In a non-public forum, viewpoint regulations of speech trigger strict scrutiny, while content-based regulations of subject-matter and content-neutral regulations trigger only minimum rational review.

A number of special categories of speech get their own kind of First Amendment review that is less than standard First Amendment protection. These categories are discussed in Chapter 30. In some of these cases, like for speech advocating unlawful conduct, or for fighting words, obscenity, or indecency involving children, the speech receives no First Amendment protection, except for the prescription of viewpoint discrimination that always triggers strict scrutiny review, as discussed at § 29.4.3.1. For other kinds of speech, like defamatory speech or governmental regulation of the speech of government employees on matters of public concern, a version of heightened rational review is applied. For regulations...