Summary
Information as of September 12, 2024. Prepared by Victoria L. Killion, Legislative Attorney, and Jamie L. Bush, Visual Information
Specialist. For more information, see CRS Report R47986, Freedom of Speech: An Overview (2024).
Analyzing Constitutionality Under the
First Amendment's Free Speech Clause
Speech
Conduct
• Including books, movies,
music, photos
• Some forms of expressive
conduct (see below)
Is the government
regulating speech?
What kind of speech is the
government regulating?
Protected Speech
• Commercial
Certain commercial disclosure
requirements may receive a
less-stringent standard of review
under Zauderer v. O. of Disciplinary
Counsel, 471 U.S. 626 (1985).
• Noncommercial
Unprotected Speech
What is the basis for
regulating this speech?
Some content-based distinctions
within a category of unprotected
speech may trigger strict scrutiny.
R.A.V. v. City of St. Paul, 505 U.S. 377
(1992).
• Non-expressive
• Inherently expressive
• Has expressive and
non-expressive elements
Content Based
• Viewpoint
• Subject matter or topic
• Substantive message
Content Neutral
Courts sometimes invalidate
viewpoint-based laws without
undertaking strict scrutiny.
• No substantive aspect of
speech (e.g., location)
• Time, place, or manner of
speech
Mix of Protected Speech and
Unprotected Speech
LEVELS OF SCRUTINY
Rationally related to a
legitimate governmental
interest
Rational basis
Serves a compelling governmental
interest and is narrowly tailored—
that is, the least restrictive means
of achieving that interest
Intermediate scrutiny
Directly advances an important or
substantial governmental interest
and is narrowly tailored (i.e., not
substantially broader than necessary)
to achieve that interest; sometimes
requires ample alternative channels
for communication of the information
Strict scrutiny
• Strictly denied categories
such as defamation, true
threats, and obscenity
Begin with the question, "Is the government regulating speech?" Continue responding to the
questions, following the arrows, until a response includes a symbol corresponding to a specific level of
scrutiny. Different legal standards might apply in particular contexts (e.g., schools, government programs).
The party challenging a law on free speech grounds may have to satisfy additional legal tests for particular
types of claims (e.g., vagueness, overbreadth).
This Infographic illustrates the analytical steps a court might follow to determine whether a
particular government action or application of law complies with the Free Speech Clause of
the First Amendment. A key step in that analysis is deciding which level of constitutional
scrutiny (i.e., legal test) to apply to balance the government's regulatory interests against
the individual rights of acted speakers. Strict and intermediate scrutiny (denied below)
are the two most common levels of scrutiny in First Amendment cases.
Document ID: IG10063