HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.crs/govyda0001 and id is 1 raw text is:
Conresioa Reeac Seric
Updated January 16, 2019
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 protect against
government regulation of certain core areas of protected
speech (including some forms of expressive conduct) while
giving the government greater leeway to regulate other
types of speech, including a handful of limited categories
that the Court has deemed largely unprotected. This
In Focus provides a broad overview of 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 law automatically
violates the Free Speech Clause. Likewise, the First
Amendment may still provide grounds to challenge
government regulation of unprotected speech. As a
threshold matter, a court may have to consider whether a
law is directed at speech or conduct, and, if the latter,
whether that conduct is inherently expressive. A court may
also ask whether a law imposes a valid time, place, or
manner restriction, e.g., Hill v. Colorado, 530 U.S. 703
(2000), or impermissibly regulates speech on the basis of its
content or the speaker's viewpoint, e.g., Reed v. Town of
Gilbert, 135 S. Ct. 2218 (2015).
Nevertheless, identifying the category of speech at issue
(e.g., commercial speech, obscenity) is an important step in
determining what First Amendment standards, including
what level of judicial scrutiny, a court might apply to the
law. Regulations of protected speech generally receive strict
or intermediate scrutiny, which are high bars for the
government to meet. In contrast, the government typically
has more leeway to regulate unprotected speech. Thus, the
category of speech is an important factor to consider in
evaluating Congress's ability to legislate on a given subject.
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.
Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).
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. For comparative purposes, this
section discusses political speech and commercial speech,
speech categories typically associated with two different
tiers of scrutiny.
Political and Ideological Speech
The Supreme 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. W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
Political speech can take other forms beyond the written or
spoken word, such as money, e.g., Buckley v. Valeo, 424
U.S. 1 (1976) (per curiam), or symbolic acts, e.g., Texas v.
Johnson, 491 U.S. 397 (1989). A government regulation
that implicates political or ideological speech generally
receives strict scrutiny in the courts, whereby the
government must show that the law is narrowly tailored to
achieve a compelling government interest.
Commercial Speech
Commercial speech-generally, 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
political speech. For many years, courts deferred to
legislatures when it came to economic regulations that
impinged upon speech. However, the Court's 1976 decision
in Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, launched a trend of
increased judicial scrutiny over laws implicating
commercial speech.
Today, commercial speech restrictions typically receive at
least an intermediate level of scrutiny if they are directed at
non-misleading speech concerning a lawful activity. Under
a test set out in Central Hudson Gas & Electric Corp. v.
Public Service Commission of New York, 447 U.S. 557
(1980), such laws are constitutional only if they directly
advance a substantial government interest and are not
broader than necessary to serve that interest. However, the
Roberts Court has appeared receptive to applying a
heightened level of scrutiny to certain commercial
regulations, such as those that single out commercial
speakers for less favorable treatment based on the content
of their speech. See, e.g., Sorrell v. IMS Health Inc., 564
U.S. 552 (2011). In contrast, courts have sometimes applied
a less stringent standard than intermediate scrutiny to laws
that require the disclosure of factual, uncontroversial
information. See Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626 (1985).
Unprotected Speech
In general, content-based restrictions on speech-laws that
appl[y] to particular speech because of the topic discussed
or the idea or message expressed-are presumptively
https://crsreports.congressge](ViewImageLocal?handle=hein.crs/govyda0001&div=1&collection=&method=preview&ext=.png&size=3)