The Structure of Modern Free Speech Doctrine: Strict Scrutiny: Intermediate Review, and 'Reasonableness' Balancing

Abstract

The structure of modern First Amendment free speech doctrine has evolved consistent with the more formalized structure of doctrine under modern Equal Protection and Due Process review. This involves more explicit use of strict scrutiny, intermediate review, “reasonableness” balancing, and minimum rationality review. As discussed in Part II of this article, for regulations of free speech in a public forum or on individual private property, the Court uses strict scrutiny for content-based regulations and intermediate review for content-neutral regulations. As discussed in Part III, for regulations of speech in a government-owned non-public forum, or speech supported by government grants or subsidies, the Court uses strict scrutiny for viewpoint discrimination, and “reasonableness” balancing for subject-matter and content-neutral regulations.In some cases, certain kinds of speech do not trigger free speech protection at all. As discussed in Part IV, this includes cases of pure government speech or regulations of alleged symbolic speech that is viewed by the Court as involving conduct only. Other kinds of speech, like advocacy of illegal conduct, fighting words, or obscenity, get limited free speech protection: strict scrutiny for viewpoint discrimination, but otherwise no further free speech review, as discussed in Part V. When free speech principles do not apply, there is only then other kinds of constitutional review, such as minimum rationality review under the Due Process and Equal Protection Clauses for social or economic regulations not involving fundamental rights.In addition to these categories of speech, content-based regulations of certain kind of speech in a public forum trigger less than normal strict scrutiny review. As discussed in Part VI, this can involve regulations of commercial speech, speech by government employees on matters of public concern, or alleged tortious speech, such as defamation or invasion of privacy, among others. Special First Amendment free speech doctrines for cases of prior restraints, injunctions, vagueness, substantial overbreadth, and other such matters are discussed in Part VII.This overall structure is reproduced in an Appendix, Table 2 to this article. In Appendix, Table 1, the same standards of review used in First Amendment free speech cases are presented as used in other parts of constitutional interpretation. Together, Tables 1 and 2 provide a general summary of standards of review currently used by the Supreme Court in individual rights adjudication.