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Congressional Research Service
nforming the IegisIative diebate since 1914
Updated March 28, 2024
The First Amendment: Categories of Speech
The Free Speech Clause of the First Amendment prohibits
the government from abridging the freedom of speech but
does not define what that freedom entails. The Supreme
Court has long interpreted the Clause to greatly
circumscribe government regulation of protected speech
(including some forms of expressive conduct) while giving
the government greater leeway to regulate a handful of
limited categories that the Court has deemed largely
unprotected. This In Focus summarizes the main
categories of protected and unprotected speech in First
Amendment jurisprudence.
Introduction
The Supreme Court's current approach to free speech is not
entirely categorical. That is, just because a law implicates
protected speech does not mean that the law automatically
violates the Free Speech Clause. Likewise, the First
Amendment may still provide grounds to challenge a law
regulating unprotected speech. Nevertheless, the category
of speech at issue can help determine what First
Amendment standards, including what level of judicial
scrutiny, a court might apply in a constitutional challenge to
the law. A reviewing court would likely apply strict
scrutiny to a law regulating protected speech on the basis of
its content-that is, its topic or message. Strict scrutiny is a
very difficult standard for the government to satisfy because
it requires proof that the law is the least restrictive means of
advancing a compelling governmental interest. If a law
regulates only protected commercial speech, however, a
court might apply intermediate scrutiny, which has no least-
restrictive-means requirement. Intermediate scrutiny still
requires the government to show, inter alia, that the law is
narrowly tailored to a substantial government interest. By
contrast, if a law regulates only unprotected speech, it
might receive no First Amendment scrutiny or the lenient
standard of rational basis review. Thus, for laws that
regulate speech or bills that propose to do so, the category
of speech involved may be an important factor in evaluating
whether a particular measure is likely to survive a First
Amendment challenge.
Protected Speech
The Supreme Court has recognized that the First
Amendment's protections extend to individual and
collective speech in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural ends.
Accordingly, speech is generally protected under the First
Amendment unless it falls within one of the narrow
categories of unprotected speech discussed in the next
section. Whether the Court applies strict scrutiny or a lower
form of scrutiny, however, depends on the character and
context of the speech.
Political, Ideological, and Other Forms of Non-
Commercial Speech
Apart from commercial speech, the Supreme Court has not
developed a formal hierarchy of protected speech for
purposes of applying legal scrutiny. For example, content-
based speech restrictions generally receive strict scrutiny
regardless of the topic at issue. At the same time, the Court
has long maintained that [n]ot all speech is of equal First
Amendment importance. Thus, the judicially ascribed
value of the protected speech may matter in some
circumstances.
The Court has long considered political and ideological
speech to be at the core of the First Amendment, including
speech concerning politics, nationalism, religion, or other
matters of opinion. This speech can take forms beyond the
written or spoken word, such as funding or symbolic acts. A
regulation of political or ideological speech generally
receives some form of heightened scrutiny, whether that be
strict scrutiny for content-based laws, intermediate scrutiny
for content-neutral laws, or the exacting scrutiny standard
often applied to campaign finance disclosure requirements.
The Court has also opined that the Free Speech Clause
exists principally to protect discourse on public matters.
Accordingly, the Court has distinguished between matters
of public concern or interest and matters of purely private
concern in contexts such as tort law or public employee
speech. As summarized by the Court, [s]peech deals with
matters of public concern when it can 'be fairly considered
as relating to any matter of political, social, or other
concern to the community,' ... or when it is a subject of
legitimate news interest, regardless of the arguably
'inappropriate or controversial character' of the content.
Commercial Speech
Commercial speech-speech that merely proposes a
commercial transaction or relates solely to the speaker's
and the audience's economic interests-has historically
received less First Amendment protection than other forms
of protected speech. Under Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York,
commercial speech restrictions typically receive
intermediate scrutiny if they are directed at non-misleading
speech concerning a lawful activity. Such laws are
constitutional only if they directly advance a substantial
government interest and are not broader than necessary to
serve that interest. The Court in recent years has appeared
receptive to applying a heightened level of scrutiny to laws
that single out commercial speakers for less favorable
treatment based on the content of their speech. In contrast,
courts have sometimes applied Zauderer review-a
standard more lenient than intermediate scrutiny but more
stringent than rational basis review-to laws requiring
disclosure of factual, uncontroversial information.](ViewImageLocal?handle=hein.crs/goveouo0001&div=1&collection=&method=preview&ext=.png&size=3)