Freedom of Speech: An Overview
Congressional research reportSep 13, 2024
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Freedom of Speech: An Overview
Updated September 13, 2024
Congressional Research Service
https://crsreports.congress.gov
R47986
SUMMARY
Freedom of Speech: An Overview
The First Amendment to the U.S. Constitution protects “the freedom of speech,” but that
protection is not absolute. The Free Speech Clause principally constrains government regulation
of private speech. Speech restrictions imposed by private entities, and government limits on its
own speech, usually do not implicate the First Amendment. Even when the government is
regulating private speech, a court reviewing a First Amendment challenge may decide that the
regulation is consistent with the First Amendment if it is supported by a sufficient governmental
interest and an appropriately tailored approach.
R47986
September 13, 2024
Victoria L. Killion
Legislative Attorney
There is no one-size-fits-all test for deciding whether a speech regulation complies with the First Amendment. The analysis
requires parsing out the appropriate legal standards from Supreme Court precedent and often involves applying those
standards to new contexts and mediums of expression. Accordingly, when a litigant raises a First Amendment claim or
defense in court, much of free speech analysis is directed at determining the appropriate legal standards to apply to the
challenged law or government action. That analysis often coalesces around common questions, including the following:
•
•
•
Is the government regulating speech or non-expressive conduct?
Is the speech at issue protected or unprotected? Commercial or noncommercial?
Is the speech regulation content based or content neutral?
Modern First Amendment jurisprudence has gravitated toward the application of tiers of judicial scrutiny ranging from
rational basis review (the minimum standard of constitutionality) to strict scrutiny (a difficult standard for the government to
satisfy). Typically, laws that regulate speech based on its content (i.e., its subject matter, topic, or viewpoint) receive strict
scrutiny, except for regulations of commercial speech (e.g., product advertisements), which typically receive intermediate
scrutiny. Laws that regulate speech in a content-neutral way, including some restrictions on the time, place, or manner of
speech, usually receive a form of intermediate scrutiny.
The context in which the government regulates speech is also important. For example, the Supreme Court has developed
specific tests or frameworks for evaluating the constitutionality of restrictions on student speech in schools, disciplinary
actions against public employees for their speech, and policies limiting who can speak about what on government property.
The type of free speech challenge (e.g., facial or as-applied) might also dictate the appropriate analytical framework.
Thus, a large part of evaluating a federal statute or bill for compliance with the Free Speech Clause involves determining the
appropriate legal standards, which depend on the type of legal challenge or claim, the nature and context of the speech
regulation, how that regulation operates, and the degree of protection for the speech at issue. Application of First Amendment
scrutiny varies according to the test applied but usually involves considering the strength of the government’s asserted
interests and whether the regulation of speech is sufficiently tailored to those interests.
Congressional Research Service
Freedom of Speech: An Overview
Contents
Laws Implicating Free Speech Protections ..................................................................................... 1
Levels of Scrutiny and Key Concepts ............................................................................................. 4
Strict Scrutiny............................................................................................................................ 5
Intermediate Scrutiny ................................................................................................................ 6
Other Tests for Determining Compliance with the Free Speech Clause ................................... 9
Types of Free Speech Challenges .................................................................................................. 10
Facial Challenge ....................................................................................................................... 11
As-Applied Challenge ............................................................................................................. 12
Overbreadth Claim .................................................................................................................. 14
Vagueness Claim ..................................................................................................................... 16
Prior Restraint Claim............................................................................................................... 18
Special Contexts ............................................................................................................................ 19
Campaign Finance................................................................................................................... 19
Compelled Subsidization ........................................................................................................ 20
Government Programs or Funding .......................................................................................... 20
Government Property and Public Forums ............................................................................... 21
Intellectual Property ................................................................................................................ 22
Prisons ..................................................................................................................................... 23
Public Employment ................................................................................................................. 23
Schools .................................................................................................................................... 24
Zoning of Sexually Oriented Businesses ................................................................................ 25
Related First Amendment Rights................................................................................................... 26
Figures
Figure 1. Analytical Steps in a Typical As-Applied Free Speech Challenge ................................. 13
Tables
Table 1. Strict Versus Intermediate Scrutiny ................................................................................... 8
Contacts
Author Information........................................................................................................................ 26
Congressional Research Service
Freedom of Speech: An Overview
T
he First Amendment protects “the freedom of speech,” but that protection is not absolute.1
Modern First Amendment jurisprudence draws on more than 80 years of case law
developed by the Supreme Court,2 with hundreds of decisions shaping the presumptions,
exceptions, and legal tests that courts apply in free speech challenges today.3 This report is
designed to assist Members of Congress and congressional staff in identifying whether a
particular policy proposal, bill, or law may implicate the Free Speech Clause of the First
Amendment and what legal standards a court might apply in evaluating that legislative approach.
The report begins by discussing the types of laws that generally implicate the Free Speech Clause
of the First Amendment. It then discusses two of the most commonly employed levels of First
Amendment scrutiny: strict and intermediate scrutiny. These levels of scrutiny are tests that courts
may use in deciding whether a law or government action affecting speech rights comports with
the Free Speech Clause. The next section of the report discusses the differences between facial
and as-applied challenges and describes the more specific claims of overbreadth, vagueness, and
prior restraint that litigants might raise through such challenges. This section includes a flow
chart (Figure 1) that illustrates the analytical steps a court might follow to determine what level
of scrutiny to apply in deciding the constitutionality of a particular application of a challenged
law. The report then presents special contexts for which the Supreme Court has developed legal
standards that might differ from the traditional levels of scrutiny. The report concludes by
describing other First Amendment rights related to the freedom of speech.
Laws Implicating Free Speech Protections
The Free Speech Clause generally constrains only government action (also called “state action”).4
A government action restricting speech may take the form of a federal, state, or local law. It can
also comprise a less formal rule or policy from a public institution or a discrete government
action, such as a prosecution or other enforcement action.5 The Free Speech Clause applies not
only to laws that restrict speech, but also to laws that compel speech by requiring private persons
to convey a particular message.6 In addition to such direct regulations of speech, laws that burden
speech or condition government funding or benefits on undertaking or forgoing speech activity
may also implicate the First Amendment.7
1 U.S. CONST. amend. I.
2 See, e.g., 303 Creative LLC v. Elenis, 600 U.S. 570, 584–87 (2023) (applying free speech principles from West
Virginia v. Barnette) (citing W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)).
3 See generally Cong. Rsch. Serv., First Amendment: Free Speech Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/amendment-1/ (last visited Mar. 26, 2024) (table of contents for collection of
First Amendment essays).
4
Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 804 (2019); see Cong. Rsch. Serv., State Action Doctrine
and Free Speech, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-24/ALDE_00013541/ (last visited Mar. 26, 2024).
5 See, e.g., Cohen v. California, 403 U.S. 15, 26 (1971) (reversing the conviction of an individual prosecuted for
wearing, in a courthouse, a jacket with a slogan critical of the selective service draft); Lamb’s Chapel v. Ctr. Moriches
Union Free Sch. Dist., 508 U.S. 384, 393 (1993) (holding that a public school unconstitutionally applied a rule
prohibiting the use of school facilities for religious purposes).
6 E.g., Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018); Wooley v. Maynard, 430 U.S. 705,
714 (1977).
7 Cong. Rsch. Serv., Overview of Unconstitutional Conditions Doctrine, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-13-1/ALDE_00000771/ (last visited Mar. 26, 2024).
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As the First Amendment principally limits the government’s ability to regulate private speech, it
generally does not constrain the government when the government is speaking for itself.8
Likewise, private action is not usually subject to First Amendment constraints.9 The line between
government action and private action can be “difficult to draw” in some cases, such as when a
public official blocks a follower on social media.10 The First Amendment also prohibits the
government from coercing private actors to take actions that suppress other private entities’
speech.11
Determining whether a particular law or government action comports with the First Amendment
is often a multistep analysis. As a threshold matter, a court reviewing a free speech challenge may
consider whether the government is in fact regulating “speech.”12 The First Amendment concept
of speech includes the written and spoken word and other forms of expression in various
mediums (e.g., photographs, videos).13 The actions of creating or disseminating speech are also
forms of speech.14 So too are editorial functions—the decisions that go into “select[ing] and
shap[ing] other parties’ expression” into one’s “own curated speech product[].”15 Beyond physical
material that conveys a message, the concept of speech encompasses certain expressive
conduct—that is, conduct “sufficiently imbued with elements of communication” to implicate the
First Amendment (e.g., burning a flag in political protest).16 Although “a narrow, succinctly
articulable message is not a condition of constitutional protection,”17 a court is more likely to
consider conduct to be sufficiently communicative (and thus within the First Amendment’s ambit)
if the actor intends to “convey a particularized message” and that message would likely be
understood by those who view it.18
8 See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015) (explaining that “government
statements (and government actions and programs that take the form of speech) do not normally trigger the First
Amendment rules designed to protect the marketplace of ideas”).
9
See Manhattan Cmty. Access Corp., 587 U.S. at 809 (stating the “few limited circumstances” in which “a private
entity can qualify as a state actor” for First Amendment purposes).
10 Lindke v. Freed, 601 U.S. 187, 191, 195, 197 (2024) (explaining that “the First Amendment binds only the
government,” but because the Facebook account holder in the case was a public official, the courts had to decide
whether he acted in his official or private capacity when he blocked a private citizen from his Facebook page and
deleted the citizen’s comments).
11 See Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 198 (2024) (holding that the National Rifle Association (NRA)
plausibly alleged in its complaint that a state official “violated the First Amendment by coercing [state]-regulated
entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s advocacy”).
12 E.g., Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445–46 (2d Cir. 2001) (analyzing whether computer code
is speech).
13 See Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 790 (2011) (reasoning that “[l]ike the protected books, plays, and
movies that preceded them, video games communicate ideas—and even social messages—through many familiar
literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as
the player’s interaction with the virtual world),” which “suffices to confer First Amendment protection”).
14 See Bartnicki v. Vopper, 532 U.S. 514, 526 (2001) (holding that the disclosure and publication of information are
forms of speech).
15 Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2393 (2024).
16 Texas v. Johnson, 491 U.S. 397, 404–06 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410–411 (1974) (per
curiam)).
17 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995).
18 Johnson, 491 U.S. at 404 (internal quotation marks and citation omitted); see Rumsfeld v. F. for Acad. &
Institutional Rts., Inc., 547 U.S. 47, 66 (2006) (reasoning that the “expressive component of a law school’s actions” in
excluding military recruiters “was not created by the conduct itself but by the speech that accompanie[d] it,” and that
the need for “such explanatory speech” was “strong evidence that the conduct at issue” was “not so inherently
expressive that it warrant[ed] protection” under prior First Amendment cases).
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Freedom of Speech: An Overview
The line between non-expressive conduct and speech—though sometimes blurry—can determine
whether and to what degree a court scrutinizes a law or government action for consistency with
the First Amendment. A law that primarily restricts non-expressive conduct may not trigger First
Amendment scrutiny at all.19 In such circumstances, a court may determine whether the law has a
“rational basis,”20 or it may hold that there is no First Amendment violation without invoking that
standard.21 By comparison, a law that regulates pure speech or “inherently expressive” conduct is
likely to receive First Amendment scrutiny.22 Between these two poles are more subtle regulations
of speech, such as laws that restrict conduct with expressive and non-expressive elements,23
actions in which the government applies a conduct-focused law to restrict or punish speech
because of its message,24 or laws that have the “inevitable effect” of disproportionately burdening
certain speakers.25 The Supreme Court has also recognized the possibility that a law can
“impose[] a significant burden on expressive activity” even if it does not expressly prohibit
speech.26 This concept of chilling speech refers to the idea that even though individuals might
want to engage in constitutionally protected speech, a law that is vague, overbroad, or creates
significant barriers to speech could cause them to “curtail their expression.”27
After deciding that a case likely involves speech, the next question a court might consider is
whether the First Amendment protects the particular type of speech at issue. Courts often refer to
speech as “protected” or “unprotected,” but the label is not always determinative of the
constitutionality of the challenged law or government action.28 Most private speech is protected in
the sense that government regulation of that speech would at least raise a constitutional question
and likely warrant First Amendment scrutiny if challenged in court. The Supreme Court has,
however, recognized certain historically rooted “unprotected” categories of speech, such as
19 See Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (explaining that “the First Amendment does not prevent
restrictions directed at commerce or conduct from imposing incidental burdens on speech”); cf. United States v.
Hansen, 599 U.S. 762, 782 (2023) (construing a statutory provision to encompass “a great deal of nonexpressive
conduct—which does not implicate the First Amendment at all”).
20 See City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488, 496 (1986) (explaining that “the rule of
rationality” generally “sustain[s] legislation against other constitutional challenges” that do not involve “colorable”
First Amendment arguments). Cf. Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993) (concluding, after determining that
a penalty enhancement for bias-motivated crimes regulated non-expressive conduct, that the state had “an adequate
explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or
biases”).
21 See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986) (holding that “the First Amendment is not
implicated by the enforcement of a public health regulation of general application against the physical premises in
which respondents happen to sell books”).
22 Rumsfeld v. Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 66 (2006).
23 See United States v. O’Brien, 391 U.S. 367, 376 (1968) (stating that “when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms”); Arcara, 478 U.S. at 703 (“We have applied
O’Brien to other cases involving governmental regulation of conduct that has an expressive element.”).
24 E.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 28 (2010) (“The law here may be described as directed at
conduct . . . but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a
message.”).
25 Arcara, 478 U.S. at 704, 707 (stating that the Court has “applied First Amendment scrutiny to some statutes which,
although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in
protected First Amendment activities” (citing Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S.
575 (1983))).
26 United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 468 (1995).
27 Id. at 469.
28 See CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion (2024).
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Freedom of Speech: An Overview
defamation or fraud.29 The government usually can penalize such unprotected speech consistent
with the First Amendment. Laws aimed at these narrow categories of speech might trigger First
Amendment scrutiny, however, if they reach protected speech or draw impermissible contentbased distinctions.30 For example, in R.A.V. v. City of St. Paul, the Supreme Court struck down a
local law construed to prohibit “fighting words,” an unprotected category of speech, because the
law reached only those fighting words “that insult, or provoke violence, ‘on the basis of race,
color, creed, religion or gender.’”31 The Court reasoned that singling out fighting words based on
the ideas they communicate violated a fundamental precept that the government cannot restrict
speech because it disagrees with the message conveyed.32
Even if a law or government action reaches protected speech, there is no one-size-fits-all test that
courts apply in all contexts to analyze whether the law or action is constitutional. The Supreme
Court has adopted several “means-end” tests (called levels of scrutiny),33 as well as additional
legal standards to govern particular claims and scenarios. Accordingly, after deciding that a case
involves protected speech, the next step in a First Amendment analysis is often to determine
which level of scrutiny or legal standard applies. The answer to that question can depend on the
kind of protected speech being regulated and additional factors, such as where the speech occurs
and the way the law operates. For example, commercial speech, while protected, typically
receives a lower level of scrutiny than other forms of protected speech.34
Related CRS Products
Cong. Rsch. Serv., State Action Doctrine and Free Speech, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-2-4/ALDE_00013541/ (last visited Mar. 26, 2024).
Cong. Rsch. Serv., Overview of Compelled Speech, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-12-1/ALDE_00000769/ (last visited Mar. 26, 2024).
CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion (2024).
CRS Legal Sidebar LSB11186, Government Coercion of Private Speech: National Rifle Association (NRA) v. Vullo, by
Whitney K. Novak (2024).
Levels of Scrutiny and Key Concepts
Most often, a court adjudicating a free speech challenge will analyze the constitutionality of a law
or government action by applying a level of scrutiny derived from the Supreme Court’s First
Amendment precedents. The two most common levels of scrutiny in free speech analysis are
strict and intermediate scrutiny.35 Strict scrutiny generally applies to laws that regulate speech on
the basis of its content or message.36 It is a “demanding standard” that the government is rarely
29 United States v. Stevens, 559 U.S. 460, 468–70 (2010).
30 See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 246–56 (2002) (holding unconstitutional a law that
criminalized speech beyond the unprotected categories of “obscenity” and “child pornography”).
31 R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992).
32 Id.
33 Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2386 (2021).
34 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).
35 See State v. Katz, 179 N.E.3d 431, 454 (Ind. 2022) (“Under the First Amendment, regulations of protected speech
receive either intermediate or strict scrutiny, depending on whether the restriction is content neutral, or content
based.”).
36 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
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Freedom of Speech: An Overview
able to meet.37 Intermediate scrutiny has several different formulations but generally applies to
content-neutral laws and commercial speech restrictions.38 Intermediate scrutiny too presents a
high bar for the government, but regulations of speech are more likely to survive intermediate
than strict scrutiny. To varying degrees, each level of scrutiny requires the government to prove
that it has a sufficiently important interest in regulating the speech at issue and that the law
directly advances and is narrowly tailored to that interest.
While laws that fail strict or intermediate
scrutiny often do so on lack-of-tailoring
grounds, the government sometimes fails to
show that its interests are “real” and “not
merely conjectural.”39 For example, it may be
insufficient for the government to cite an
interest that is significant in the abstract if the
government lacks evidence of a concrete harm
threatening that interest.40 For “prophylactic”
speech restrictions in particular, the
government must “demonstrate that it is
regulating speech in order to address what is
in fact a serious problem and that the
preventative measure it proposes will
contribute in a material way to solving that
problem.”41
For more information on the levels of scrutiny
and other key First Amendment concepts,
readers of this report’s HTML and PDF
formats can click on a term or phrase in the
text box titled “Free Speech Terminology” to
navigate to a discussion of that concept.
Strict Scrutiny
Free Speech Terminology
(In HTML and PDF formats, readers can click on a term
below for more information.)
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chilling effect
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commercial speech
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compelling governmental interest
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content based
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content neutral
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designated public forum
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intermediate scrutiny
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limited public forum
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narrow tailoring
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nonpublic forum
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overbreadth
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prior restraint
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speech
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strict scrutiny
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substantial or important governmental interest
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time, place, or manner regulation
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traditional public forum
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vagueness
Strict scrutiny generally applies to content-based laws—laws that regulate speech on the basis of
its subject matter, topic, or substantive message.42 A law can be content based on its face or in its
design or purpose.43 The Supreme Court considers viewpoint discrimination—distinctions based
37 Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 799 (2011). Cf. Williams-Yulee v. Fla. Bar, 575 U.S. 433, 444–45
(2015) (describing the case as “one of the rare cases in which a speech restriction withstands strict scrutiny”).
38 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of
New York, 447 U.S. 557, 561 (1980).
39 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (plurality op.).
40 See Brown, 564 U.S. at 799 (stating that the government “must specifically identify an ‘actual problem’ in need of
solving”); e.g., Ibanez v. Fla. Dep’t of Bus. & Pro. Regul., Bd. of Acct., 512 U.S. 136, 146 (1994) (reasoning that a
state board’s failure “to point to any harm that is potentially real, not purely hypothetical” rendered its disciplinary
action against an attorney for allegedly deceptive advertising “unjustified”).
41 Edenfield v. Fane, 507 U.S. 761, 776 (1993).
42 City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 71 (2022); Reed v. Town of Gilbert, 576 U.S.
155, 163 (2015).
43 Cong. Rsch. Serv., Overview of Content-Based and Content-Neutral Regulation of Speech, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/ (last visited Mar. 26,
2024).
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Freedom of Speech: An Overview
on a “specific motivating ideology,” opinion, or perspective—to be “an egregious form of content
discrimination.”44 For this reason, courts sometimes invalidate viewpoint-based laws summarily,
without undertaking a strict scrutiny analysis.45
Under strict scrutiny, the government must prove that its law is narrowly tailored to advance a
compelling governmental interest and that the law is the least restrictive means of serving that
interest.46 While not an exhaustive list, the Supreme Court has identified the following interests as
compelling, at least in certain contexts:
•
•
•
•
•
•
“national security”;47
“public confidence in judicial integrity”;48
“protecting the physical and psychological well-being of minors”;49
“ensur[ing] the basic human rights of members of groups that have historically
been subjected to discrimination”;50
“eradicating discrimination against [a state’s] female citizens”;51 and
“depriving criminals of the profits of their crimes, and in using these funds to
compensate victims.”52
Both strict and intermediate scrutiny require narrow tailoring,53 meaning that the government
must “pursue its legitimate interests through ‘means that are neither seriously underinclusive nor
seriously overinclusive.’”54 The precise degree of tailoring required under each standard differs.
Under strict scrutiny, the challenged law or action must be the “least restrictive means” of
satisfying the government’s compelling interest. In other words, “[i]f a less restrictive alternative
would serve the Government’s purpose, the legislature must use that alternative.”55
Intermediate Scrutiny
Intermediate scrutiny typically applies to content-neutral laws and commercial speech
restrictions, albeit following different lines of Supreme Court precedent.56 A law is content
44 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
45 E.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (holding that a bar on registering “immoral or scandalous”
trademarks was viewpoint based and thus invalid).
46 United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).
47 Haig v. Agee, 453 U.S. 280, 307 (1981).
48 Williams-Yulee v. Fla. Bar, 575 U.S. 433, 447 (2015).
49 Sable Commc’ns of Cal., Inc. v. FCC., 492 U.S. 115, 126 (1989).
50 R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992).
51 Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).
52 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 119 (1991).
53 The concept of narrow tailoring is also used in other forms of constitutional analysis. See CRS Podcast WPD00074,
“Narrow Tailoring” and Race-Conscious Government Action, by Sanchitha Jayaram and April J. Anderson.
54 Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 805 (2011). A narrowly tailored law “should indicate that its
proponent ‘carefully calculated the costs and benefits associated with the burden on speech imposed by its
prohibition.’” Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999) (quoting Cincinnati
v. Discovery Network, Inc., 507 U.S. 410, 417 (1993)).
55 United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000).
56 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994); Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995).
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Freedom of Speech: An Overview
neutral if it “serves purposes unrelated to the content of expression”57 and does not, on its face,
regulate speech on the basis of its subject matter, topic, or viewpoint.58
The Supreme Court has established an intermediate scrutiny standard for content-neutral time,
place, or manner regulations.59 Specifically, the Court has held that “[e]xpression, whether oral or
written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions,”60
such as a regulation to control the volume of music played at a bandshell in a public park.61 Time,
place, or manner restrictions “are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for communication of
the information.”62
A similar test set out in United States v. O’Brien is used to evaluate restrictions on certain types of
expressive conduct, such as “when ‘speech’ and ‘nonspeech’ elements are combined in the same
course of conduct.”63
Intermediate scrutiny is also the standard applied to commercial speech restrictions. Commercial
speech is (1) speech that “does no more than propose a commercial transaction” (e.g., an
advertisement for a product or service);64 or (2) “expression related solely to the economic
interests of the speaker and its audience.”65 To sustain a restriction on lawful, nonmisleading
commercial speech, the government must meet the standard set out in Central Hudson Gas and
Electric Corp. v. Public Service Commission.66 Specifically, the government must show that its
law “directly advances” a “substantial” governmental interest and is narrowly tailored—that is,
“not more extensive than necessary”—to serve that interest.67
Examples of substantial or important governmental interests include
•
•
•
•
protecting the public from deceptive and misleading trade practices;68
“maintaining standards of ethical conduct in the licensed professions”;69
“energy conservation”;70
preventing “quid pro quo” corruption or its appearance in election campaigns;71
and
57 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
58 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
59 Ward, 491 U.S. at 798–99.
60 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
61 Ward, 491 U.S. at 784, 791.
62 Id.
63 United States v. O’Brien, 391 U.S. 367, 376–77 (1968).
64 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976).
65 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).
66 Id. at 566.
67 Id.
68 Friedman v. Rogers, 440 U.S. 1, 15 (1979).
69 Edenfield v. Fane, 507 U.S. 761, 770 (1993).
70 Cent. Hudson, 447 U.S. at 568.
71 McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 199, 207 (2014) (plurality op.) (citing Buckley v. Valeo, 424
U.S. 1, 66–67 (1976) (per curiam)).
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•
“promoting fair competition in the market for television programming.”72
The tailoring requirement for intermediate scrutiny is less rigorous than for strict scrutiny. Under
intermediate scrutiny, a law “need not be the least restrictive or least intrusive means” of
advancing the government’s interest.73 Nevertheless, the government “still ‘may not regulate
expression in such a manner that a substantial portion of the burden on speech does not serve to
advance its goals.’”74 Narrow tailoring for commercial speech restrictions, for example, requires
“a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best
disposition but one whose scope is in proportion to the interest served.”75
Table 1 summarizes the strict and intermediate scrutiny standards.
Table 1. Strict Versus Intermediate Scrutiny
Strict Scrutiny
Intermediate Scrutiny
When it typically applies
Content-based laws
Commercial speech restrictions and some
commercial disclosure requirements76
Content-neutral laws (e.g., time, place, or
manner restrictions)77
Laws that regulate a course of conduct with
speech and nonspeech elements78
Strength of government
interest required
Compelling
Important or substantial
Level of tailoring required
Narrow tailoring: least
restrictive means
Narrow tailoring: not substantially broader
than necessary
Leaves open ample alternative channels for
communication of the message (for time, place,
or manner regulations)
Source: CRS.
72 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997).
73 Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
74 McCullen v. Coakley, 573 U.S. 464, 486 (2014) (quoting Ward, 491 U.S. at 799).
75 Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (internal quotation marks and citations
omitted). Although intermediate scrutiny does not require that the law be the least restrictive means of achieving the
government’s interest, “if there are numerous and obvious less-burdensome alternatives to the restriction on
commercial speech, that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means
is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 n.13 (1993).
76 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980).
77 Ward, 491 U.S. 781.
78 United States v. O’Brien, 391 U.S. 367 (1968).
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Other Tests for Determining Compliance with the Free Speech
Clause
Strict and intermediate scrutiny are not the only tests used in free speech cases. The Supreme
Court has developed additional tests for specific contexts and to account for different types of
regulations. For example, another form of scrutiny called exacting scrutiny is often used to
evaluate campaign finance disclosure requirements.79
Although most regulations of commercial speech are subject to intermediate scrutiny, there are
exceptions. Certain commercial disclosure requirements are subject to a less-stringent standard of
review under Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio.80
Application of Zauderer requires, at a minimum, that the disclosure involves “purely factual and
uncontroversial information” about the regulated entity’s own products or services.81 If these
criteria are met,82 then the disclosure requirements need only be “reasonably related” to
preventing consumer deception (or, in some jurisdictions, another sufficient government interest)
and not “unjustified or unduly burdensome.”83 Additionally, the government generally can restrict
commercial speech that concerns illegal activity or that is inherently misleading without having to
satisfy either intermediate scrutiny or Zauderer review.84 By comparison, the Supreme Court has
suggested that a law that singles out particular commercial speech and speakers for disfavored
treatment may warrant “heightened judicial scrutiny” based on the broader principle that the
government cannot restrict speech because of disagreement with the message it conveys.85
The Supreme Court has also developed specific legal standards for particular forums or
circumstances. These standards are discussed in the “Special Contexts” section of this report.
79 CRS Report R45320, Campaign Finance Law: An Analysis of Key Issues, Recent Developments, and Constitutional
Considerations for Legislation, by L. Paige Whitaker (2023) (“Constitutionality of Disclosure Requirements”).
80 471 U.S. 626, 651 (1985); see also CRS Report R45700, Assessing Commercial Disclosure Requirements under the
First Amendment, by Valerie C. Brannon (2019).
81 Zauderer, 471 U.S. at 651; see Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 769 (2018) (declining to
apply Zauderer because the challenged notice requirement for licensed clinics “in no way relate[d] to the services that
licensed clinics provide”).
82
Some lower courts have expressed uncertainty as to whether compelled commercial disclosures that do not qualify
for Zauderer review should receive strict or intermediate scrutiny. Brannon, Assessing Commercial Disclosure
Requirements under the First Amendment, supra note 80.
83 Zauderer, 471 U.S. at 651. Some lower courts have recognized interests other than preventing consumer deception
for purposes of applying Zauderer review. Brannon, Assessing Commercial Disclosure Requirements under the First
Amendment, supra note 80.
84 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 563–64 (1980) (explaining that
the “government may ban forms of communication more likely to deceive the public than to inform it, or commercial
speech related to illegal activity” (internal citations omitted)).
85 Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011). The Court in Sorrell did not explain whether “heightened”
scrutiny meant strict scrutiny or a more rigorous form of intermediate scrutiny than Central Hudson.
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Related CRS Products
CRS In Focus IF12308, Free Speech: When and Why Content-Based Laws Are Presumptively Unconstitutional, by Victoria
L. Killion (2023).
CRS In Focus IF12388, First Amendment Limitations on Disclosure Requirements, by Valerie C. Brannon et al. (2023).
CRS Report R45700, Assessing Commercial Disclosure Requirements under the First Amendment, by Valerie C. Brannon
(2019).
Types of Free Speech Challenges
First Amendment challenges can take multiple forms. A party can challenge a law’s validity on its
face (facial challenge) or as applied to their speech activity (as-applied challenge).86 As-applied
cases are more common because “courts usually handle constitutional claims case by case, not en
masse.”87 Both facial and as-applied challenges can be based on different theories of
constitutional invalidity. For example, the Supreme Court has recognized a type of facial free
speech challenge based on a statute’s overbreadth—essentially, that a law aimed at nonexpressive conduct or unprotected speech reaches too much protected speech when compared to
its permissible scope. Additionally or alternatively, a litigant might argue that a speech restriction
is unconstitutionally vague or imposes an impermissible prior restraint on speech. Each type of
challenge carries its own legal standards, as discussed below.
The proponents and timing of free speech challenges can vary too. Defendants have raised the
First Amendment as a defense in response to civil litigation, criminal prosecutions, or
administrative enforcement actions. Plaintiffs have raised free speech challenges in the preenforcement context, on the basis that the threat of enforcement chills the exercise of their or
others’ free speech rights.88 Plaintiffs have also sought monetary damages from the government
for interference with their free speech rights, such as through a claim for First Amendment
retaliation.89 The timing of a free speech challenge can raise questions of justiciability—that is,
the court’s authority to hear the dispute—which are beyond the scope of this report but are
addressed in other CRS products.90 For simplicity, this section of the report uses the term “claim”
to encompass the various forms of First Amendment challenges.
86 See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366 (2010) (challenging campaign finance
disclaimer and disclosure requirements as applied to a movie about a candidate and advertisements for that movie).
87 Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024).
88 E.g., Kareem v. Cuyahoga Cnty. Bd. of Elections, No. 23-3330, 2024 U.S. App. LEXIS 6130, at *16 (6th Cir. Mar.
14, 2024).
89 E.g., Lozman v. City of Riviera Beach, 585 U.S. 87, 91 (2018).
90 See Cong. Rsch. Serv., Overview of Standing, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-1/ALDE_00012992/ (last visited Mar. 26, 2024); Cong.
Rsch. Serv., Overview of Ripeness Doctrine, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-7-1/ALDE_00001244/ (last visited Mar. 26, 2024); Cong.
Rsch. Serv., Overview of Mootness Doctrine, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-8-1/ALDE_00000722/ (last visited Mar. 26, 2024).
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Facial Challenge
A facial challenge occurs when a party claims that a law violates the First Amendment “on its
face.”91 The judicial remedy may include a declaration that the law, or a portion of the law, is
invalid. The government may not lawfully enforce any provisions that a court has held facially
unconstitutional.92 A court’s rejection of a facial challenge does not necessarily preclude other
litigants from succeeding on an as-applied challenge.93
From the Supreme Court’s perspective, “facial challenges are disfavored.”94 First, “‘[c]laims of
facial invalidity often rest on speculation’ about the law’s coverage and its future enforcement.”95
Second, “‘facial challenges threaten to short circuit the democratic process’ by preventing duly
enacted laws from being implemented in constitutional ways.”96 For these reasons, the Court
considers facial invalidation of a law to be a “last resort” that courts should employ “sparingly.”97
The Court has also “made facial challenges hard to win.”98
Facial First Amendment challenges can be based on a law’s overbreadth, vagueness, or prior
restraint of speech (discussed below). The Court has not applied a uniform standard to evaluate
such cases, though it clarified the test for a facial overbreadth claim in a 2024 decision.99 Rather,
each of these theories carries its own set of legal tests and presumptions. It can be difficult to tell
how these legal standards dovetail with the levels of scrutiny developed to evaluate free speech
challenges to content-based or content-neutral laws.100 In some cases, the Court appeared to
combine principles from more than one test,101 while in other cases, it applied an unmodified
strict or intermediate scrutiny standard to decide whether a law facially violated the First
Amendment.102 Accordingly, the precise test used to evaluate a facial free speech challenge may
depend on how the litigants and the reviewing court frame the issue.
91 Facial Challenge, BLACK’S LAW DICTIONARY (11th ed. 2019) (meaning an argument that a statute “always operates
unconstitutionally”).
92 In some cases, a court explicitly enjoins government officials from enforcing a facially invalid law. E.g., Jews for
Jesus, Inc. v. Board of Airport Comm’rs, 661 F. Supp. 1223, 1226 (C.D. Cal. 1985), aff’d, 785 F.2d 791 (9th Cir.
1986), aff’d on other grounds, 482 U.S. 569 (1987).
93 See Virginia v. Hicks, 539 U.S. 113, 124 (2003) (explaining that applications of the challenged policy “that violate
the First Amendment can still be remedied through as-applied litigation” after holding that the policy was not facially
invalid).
94 Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2409 (2024).
95 Id. at 2397 (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008)).
96 Id. (quoting Wash. State Grange, 552 U.S. at 451).
97 Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601,
613 (1973)).
98 Moody, 144 S. Ct. at 2397.
99 See infra “Overbreadth Claim.”
100 See supra “Levels of Scrutiny and Key Concepts.”
101 For example, in 2021, the Court invalidated a state donor disclosure law on facial overbreadth grounds after
applying exacting scrutiny. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2389 (2021). The Court reasoned
that the “lack of tailoring” and the “weakness of the State’s interest” were “categorical—present in every case.” Id. at
2387.
102 See, e.g., Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2347, 2355 (2020) (plurality op.) (applying
strict scrutiny and ultimately severing the invalid portion of a federal statute prohibiting certain robocalls); Sable
Commc’ns of California, Inc. v. FCC, 492 U.S. 115, 126–131 (1989) (applying strict scrutiny in a facial challenge to a
federal statute prohibiting “indecent” commercial telephone messages).
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As-Applied Challenge
A party bringing an as-applied challenge alleges that a law or government action violates the Free
Speech Clause as applied to its activity or intended activity, instead of asserting that the law as a
whole violates the First Amendment.103 In an as-applied challenge, a court usually limits its
judgment and any remedies to the parties or set of circumstances before the court. Accordingly, a
court’s disposition might allow the government to continue enforcing the law with respect to
other parties or contexts.104
Figure 1 illustrates the typical analysis that a court might follow in an as-applied challenge to
determine the applicable level of First Amendment scrutiny. A court might also apply the analysis
in Figure 1 in a facial challenge to decide which applications of a law would comply with the
Free Speech Clause. As different legal standards might apply in particular contexts, it may be
helpful for readers to begin by skimming the “Special Contexts” section of this report to
determine whether any of the listed scenarios might apply to one or more of the speech
regulations in the legislative proposal under consideration.
While the number and order of steps may vary, a court might begin its analysis by considering
whether the case implicates the Free Speech Clause at all, asking whether the law involves nonexpressive conduct or speech.105 At the second step of the inquiry, a court might ask whether the
speech at issue is protected or unprotected. In an as-applied challenge, a court might focus on the
nature of the challenger’s speech or the government’s reasons for applying the law to that
speech,106 whereas in a facial challenge, a court might first need to determine the scope of the law
in question and then evaluate its various applications.107 As reflected in the third step of Figure 1,
a court might then ask whether the law at issue is content based or content neutral.108
103 As-Applied Challenge, BLACK’S LAW DICTIONARY (11th ed. 2019).
104 See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 478 (1995) (explaining that “granting full relief to
respondents”—all executive branch employees below a certain grade on the federal pay scale—did not resolve the
constitutionality of applying the law to federal employees above that pay grade).
105 See, e.g., Texas v. Johnson, 491 U.S. 397, 420 (1989) (deciding that the defendant’s criminal conviction under a flag
desecration law implicated the First Amendment because the defendant burned a flag in political protest). See supra
“Laws Implicating Free Speech Protections.”
106 See, e.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 28 (2010) (describing the question as “whether the
Government may prohibit what plaintiffs want to do”); Spence v. Washington, 418 U.S. 405, 415 (1974) (per curiam)
(overturning the defendant’s conviction “[g]iven the protected character of his expression and in light of the fact that no
interest the State may have . . . was significantly impaired on these facts”).
107 See infra “Overbreadth Claim.”
108 See supra “Levels of Scrutiny and Key Concepts.”
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Figure 1. Analytical Steps in a Typical As-Applied Free Speech Challenge
Source: CRS.
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Overbreadth Claim
In constitutional law, a facial challenge usually requires the objecting party to show that the law is
invalid in all of its applications or “lacks any ‘plainly legitimate sweep.’”109 In free speech cases,
however, the Supreme Court has recognized a “less demanding though still rigorous standard” for
the objecting party to satisfy in the context of an overbreadth claim.110 An overbreadth claim may
arise in situations when a law aimed at non-expressive conduct or unprotected speech nonetheless
reaches protected expression.111 In an exception to judicially recognized limits on standing,112 a
litigant can raise an overbreadth claim even if the government could constitutionally apply the
law to the litigant’s own speech.113 This, according to the Supreme Court, is because facial
overbreadth challenges are “not primarily for the benefit of the litigant, but for the benefit of
society—to prevent the statute from chilling the First Amendment rights of other parties not
before the court.”114 If a court holds that a law violates the overbreadth doctrine, that holding
normally “suffices to invalidate all enforcement of that law”115—at least “until and unless a
limiting construction or partial invalidation so narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression.”116
To succeed on an overbreadth claim, a litigant must show that the law “prohibits a substantial
amount of protected speech” in relation to its “plainly legitimate sweep.”117 The Supreme Court
clarified some aspects of this overbreadth test in its 2024 decision in Moody v. Netchoice, LLC.
That opinion addressed separate challenges to two state social media laws that restricted private
online platforms from removing or deprioritizing user content in certain ways.118 Trade
associations representing the interests of some of the regulated companies raised facial First
Amendment challenges to the laws. The Supreme Court held that the lower courts failed to apply
the correct overbreadth analysis and remanded for further consideration under the appropriate
standard.119 In its opinion, the Supreme Court used two different formulations of the overbreadth
test, asking whether the laws would prohibit “a substantial amount of protected speech”120 and
whether “a substantial number of [the laws’] applications are unconstitutional.”121 The Court
emphasized that lower courts and litigants may not focus solely on the “heartland applications” of
109 United States v. Stevens, 559 U.S. 460, 472 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n.7
(1997) (Stevens, J., concurring in the judgments)).
110 Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024).
111 E.g., Gooding v. Wilson, 405 U.S. 518, 522 (1972).
112 Cong. Rsch. Serv., Overview of Standing, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-1/ALDE_00012992/ (last visited Mar. 26, 2024)
(discussing prudential limits on standing).
113 Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
114 Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984).
115 Virginia v. Hicks, 539 U.S. 113, 119 (2003).
116 Broadrick, 413 U.S. at 613.
117 United States v. Williams, 553 U.S. 285, 292 (2008).
118 See Cong. Rsch. Serv., Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton: Content Moderation and Free
Speech Rights of Online Platforms, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/intro.92-16/ALDE_00013903/ (summarizing the Supreme Court’s decision in the cases) (last visited Sept. 4, 2024).
119 Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2399 (2024). The Court also clarified that the First Amendment
protects certain editorial and publishing functions reflected in the platforms’ content-moderation decisions. Id. at 2399–
2408. For a summary of the lower courts’ analyses, see CRS Legal Sidebar LSB11116, State Social Media Laws at the
Supreme Court, by Valerie C. Brannon (2024).
120 Moody, 144 S. Ct. at 2409 (quoting United States v. Hansen, 599 U.S. 762, 770 (2023)).
121 Id. at 2397 (quoting Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)).
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a challenged law.122 Instead, courts must “address the full range of activities the law[] cover[s],
and measure the constitutional against the unconstitutional applications.”123
The Moody opinion will likely influence how lower courts conduct an overbreadth analysis in
future cases. For example, it might not suffice for a court to find that a law regulates significantly
more protected speech than unprotected speech or conduct.124 Because the government can
regulate protected speech under some circumstances, a court might also need to decide whether
the particular regulation of protected speech would be constitutional. In practice, the Moody
decision could mean that a court reviewing an overbreadth challenge must
•
•
•
•
determine all the ways in which the challenged law could be applied;125
for each potential application that could reach protected speech, decide what
level of scrutiny or specific First Amendment test applies;126
apply that First Amendment standard to determine whether the particular
application of the law would be constitutional or unconstitutional;127 and
compare all of the results to determine “if the law’s unconstitutional applications
substantially outweigh its constitutional ones.”128
The Supreme Court in Moody did not identify which party bears the burden of proof at each stage
of this process. In past cases, a party raising a facial challenge bore the burden of proving that the
law reached a substantial amount of protected speech.129 The Court in Moody appeared to confirm
that, generally speaking, the burden to demonstrate overbreadth rests with the challenger.130 By
comparison, the strict and intermediate scrutiny tests require the government to prove that the
challenged law is narrowly tailored to serve a compelling governmental interest.131 This tension
suggests that some burden-shifting may take place in future overbreadth cases.132
While the Supreme Court has cautioned that invalidation of a law for overbreadth is “strong
medicine,”133 it has dispensed this remedy in some cases. For example, in 2010, the Court held
122 Id.
123 Id. at 2397–98.
124 Id. at 2398 (explaining that a court must apply the laws under review “to every covered platform or function” and
“decide which of [those] applications violate the First Amendment”).
125 See id. (“The first step in the proper facial analysis is to assess the state laws’ scope. What activities, by what actors,
do the laws prohibit or otherwise regulate?”).
126 On the facts of Moody, this meant “asking, as to every covered platform or function, whether there is an intrusion on
protected editorial discretion” in order to evaluate the state laws’ content-moderation provisions. Id.
127 Id. at 2409 (“It must then decide which of the law’s applications are constitutionally permissible and which are
not . . . .”).
128 Id. at 2397.
129 E.g., United States v. Hansen, 599 U.S. 762, 782 (2023).
130 Moody, 144 S. Ct. at 2409 (explaining that the “need for NetChoice to carry its burden” on the scope of the laws and
which of their applications is constitutional and unconstitutional “is the price of its decision to challenge the laws as a
whole”).
131 See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the
Government bears the burden of proving the constitutionality of its actions.”).
132 Following Moody, the Ninth Circuit reviewed a preliminary injunction against a state online privacy law arising
from a facial overbreadth challenge. The court concluded that one of the challenged requirements in the law “raise[d]
the same First Amendment issues” in each of its applications, thus simplifying the overbreadth analysis. NetChoice,
LLC v. Bonta, No. 23-2969, 2024 WL 3838423, at *8 (9th Cir. Aug. 16, 2024). In applying strict scrutiny to that
requirement, the court reasoned that “the State [was] unlikely to show” that the requirement was “‘the least restrictive
means’ available for advancing” its asserted interest. Id. at *13 (emphasis added).
133 Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
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unconstitutional a federal law criminalizing the commercial creation or sale of depictions of
animal cruelty after concluding that the “presumptively impermissible applications” of the law
“far outnumber[ed] any permissible ones.”134 The Court reasoned that the law could prohibit not
only animal fighting videos but also recreational hunting videos.135 By contrast, in 2023, the
Court rejected an overbreadth challenge to a federal statute that made it a crime to “encourage or
induce” an immigration law violation.136 The Court construed the operative language narrowly to
apply only to non-expressive conduct and speech integral to criminal conduct (one of the
“unprotected” categories of speech).137 Based on this reading, the Court concluded that the law
had “a wide legitimate reach” and that “the ratio of unlawful-to-lawful applications” was “not
lopsided enough to justify the ‘strong medicine’ of facial invalidation for overbreadth.”138
Vagueness Claim
Vagueness is a type of claim ordinarily raised under the Due Process Clause of the Fifth
Amendment (for federal laws) or the Fourteenth Amendment (for state laws), particularly in
challenges to criminal laws, convictions, or penalties.139 Vagueness generally refers to uncertainty
about who is covered by a law or what standard the government will use to “ascertain guilt.”140
An unconstitutionally vague law violates due process principles because it fails to provide “fair
notice” of the conduct prohibited.141
Vagueness poses a special problem for laws that regulate speech because vague laws have the
potential to chill protected expression.142 According to the Supreme Court, “[u]ncertain meanings
inevitably lead citizens to ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the
forbidden areas were clearly marked.’”143 Accordingly, litigants in First Amendment cases
sometimes assert vagueness as an additional basis for challenging a speech restriction or
penalty.144 Even if a speech restriction is not void for vagueness as a matter of due process,
134 United States v. Stevens, 559 U.S. 460, 481 (2010).
135 Id. at 478–79, 482.
136 United States v. Hansen, 599 U.S. 762, 785 (2023).
137 Id. at 783–84.
138 Id. at 784.
139 See Johnson v. United States, 576 U.S. 591, 595 (2015) (“The prohibition of vagueness in criminal statutes ‘is a
well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,’ and a
statute that flouts it ‘violates the first essential of due process.’” (quoting Connally v. General Constr. Co., 269 U.S.
385, 391 (1926))).
140 Winters v. New York, 333 U.S. 507, 515–16 (1948); see also Vagueness, BLACK’S LAW DICTIONARY (11th ed.
2019) (defining vagueness in the first instance as “[u]ncertain breadth of meaning; unclarity resulting from abstract
expression” and explaining when “vagueness raises due-process concerns”).
141 United States v. Williams, 553 U.S. 285, 304 (2008); see generally Cong. Rsch. Serv., Overview of Void for
Vagueness Doctrine, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt5-81/ALDE_00013739/ (last visited Mar. 26, 2024); Cong. Rsch. Serv., Void for Vagueness, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt14-S1-7-3/ALDE_00000261/ (last visited Mar. 26, 2024).
142 See Cramp v. Bd. of Pub. Instruction of Orange Cnty., 368 U.S. 278, 283 (1961) (describing the “vices inherent in
an unconstitutionally vague statute” as “the risk of unfair prosecution and the potential deterrence of constitutionally
protected conduct”); FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253–54 (2012) (reasoning that “[w]hen
speech is involved, rigorous adherence to [due process] requirements is necessary to ensure that ambiguity does not
chill protected speech”).
143 Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
144 It may be more difficult for a litigant to prevail on a vagueness challenge to a law that is not backed by criminal
penalties. See Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498–99 (1982) (explaining that in
vagueness challenges generally, the Court has “expressed greater tolerance of enactments with civil rather than criminal
(continued...)
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ambiguous terms regarding the law’s coverage may render the law unconstitutional under
applicable First Amendment standards.145 Thus, vagueness can be a First Amendment defect even
if it does not rise to the level of a due process violation.
The Supreme Court has recognized two ways in which a law regulating speech can be
unconstitutionally vague: first, if the law “fails to provide people of ordinary intelligence a
reasonable opportunity to understand what conduct it prohibits”; and second, if the law
“authorizes or even encourages arbitrary and discriminatory enforcement.”146 A law is not
impermissibly vague just because it lacks “perfect clarity and precise guidance.”147 Nor is a law
vague because there is some uncertainty about how it might apply in “[c]lose cases.”148 Instead, a
law may be vague if it sets out an “indeterminan[t]” legal standard or one that relies on “wholly
subjective judgments without statutory definitions, narrowing context, or settled legal
meanings.”149 For example, in 1971, the Court held that an ordinance making it a crime for people
to “assemble” on city sidewalks and “conduct themselves in a manner annoying to persons
passing by,” was unconstitutionally vague on its face.150 The Court reasoned that “[c]onduct that
annoys some people does not annoy others,” so the ordinance essentially supplied “no standard of
conduct . . . at all.”151
A vagueness claim can be styled as either a facial or an as-applied challenge.152 To succeed on a
facial vagueness claim, “the complainant must demonstrate that the law is impermissibly vague in
all of its applications.”153 While not completely foreclosing relief under a facial challenge,154 the
Supreme Court has urged lower courts to evaluate vagueness claims on an as-applied basis
because “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of others.”155
penalties because the consequences of imprecision are qualitatively less severe”). Cf. Nat’l Endowment for the Arts v.
Finley, 524 U.S. 569, 572, 588–90 (1998) (holding that a law was not facially invalid on vagueness grounds because it
required an agency to consider “general standards of decency and respect” when awarding federal grants for the arts).
145 See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (reasoning that “[r]egardless of whether” a restriction on
“patently offensive” online messages was “so vague that it violates the Fifth Amendment, the many ambiguities
concerning the scope of its coverage render it problematic for purposes of the First Amendment”); Minnesota Voters
All. v. Mansky, 138 S. Ct. 1876, 1888 (2018) (holding that there was no reasonable basis for the state’s exclusion of
“political” apparel from polling places because the law did not define the term and the state interpreted the term
inconsistently).
146 Hill v. Colorado, 530 U.S. 703, 732 (2000).
147 Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989).
148 United States v. Williams, 553 U.S. 285, 306 (2008).
149 Id.
150 Coates v. City of Cincinnati, 402 U.S. 611, 614–15 (1971).
151 Id. at 614.
152 See, e.g., id. at 616 (considering a facial challenge to a city ordinance on vagueness grounds); FCC v. Fox
Television Stations, Inc., 567 U.S. 239, 258 (2012) (considering whether an agency’s broadcast indecency standards
were vague as applied to particular broadcasts).
153 Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 497 (1982).
154 See First Amendment—Freedom of Speech—Facial Challenges—Minnesota Voters Alliance v. Mansky, 132 HARV.
L. REV. 337, 346 (2018) (positing that by deciding the Mansky case on facial vagueness grounds in 2018, the Court
“opened up a potential new line of attack for facial vagueness challenges”).
155 Holder v. Humanitarian L. Project, 561 U.S. 1, 20 (2010); Parker v. Levy, 417 U.S. 733, 755–56 (1974) (reasoning
that the appellate court erred by allowing the defendant to challenge the vagueness of certain military articles as
“hypothetically applied to the conduct of others, even though he was squarely within their prohibition”).
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Prior Restraint Claim
Penalties for engaging in speech activity are typically imposed only after the defendant has had a
chance to contest the allegations or offer any defenses through a criminal, civil, or administrative
process. By comparison, a prior restraint on speech occurs when the government “forbid[s]
certain communications” before they occur or requires a private person to obtain the
government’s permission before speaking.156 In a system of prior restraints, the government might
review the intended message for compliance with government-imposed standards and decide
whether to allow publication of the speech.157
While the First Amendment limits both “previous restraint” and “subsequent punishment” of
speech,158 prior restraints are an “especially condemned” form of speech infringement159 because
they closely resemble the “official censorship” that the Framers of the Bill of Rights sought to
prevent.160 A law that requires a speaker to obtain a license before engaging in speech is a classic
example of a prior restraint.161 According to the Supreme Court, the First Amendment was
directed at the “core abuse” of prepublication licensing laws in 16th- and 17th-century England,
whereby the government “prescribed what could be printed, who could print, and who could
sell.”162 Still, the Supreme Court has recognized that the government has interests in licensing
particular businesses or professions for regulatory purposes such as health and safety that are
unrelated to the suppression of free speech.163 Accordingly, not all licensing schemes raise the
same level of censorship concerns.164
Prior restraints can also take the form of a court order, such as an injunction restricting the
publication of specific information or prohibiting private parties from engaging in speech on a
particular topic in the future.165 Additionally, the Supreme Court has recognized that, although not
prior restraints “in the strict sense of that term,” regulatory schemes that effectively require
156 Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting MELVILLE B. NIMMER, NIMMER ON FREEDOM OF
SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 4.03, at 4–14 (1984)).
157 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952).
158 Thornhill v. Alabama, 310 U.S. 88, 101–02 (1940).
159 Joseph Burstyn, 343 U.S. at 503.
160 Hill v. Colorado, 530 U.S. 703, 734–35 (2000).
161 See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969) (recalling “the many decisions of this Court
over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a
license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional”).
162 Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002) (quoting Mayton, Toward a Theory of First Amendment
Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine, 67 CORNELL
L.REV. 245, 248 (1982)).
163 See Thomas, 534 U.S. at 323 (reasoning that “[r]egulations of the use of a public forum that ensure the safety and
convenience of the people are not ‘inconsistent with civil liberties but ... [are] one of the means of safeguarding the
good order upon which [civil liberties] ultimately depend’” (quoting Cox v. New Hampshire, 312 U.S. 569, 574
(1941)).
164 See, e.g., Reno v. ACLU, 521 U.S. 844, 868 (1997) (“[S]ome of our cases have recognized special justifications for
regulation of the broadcast media that are not applicable to other speakers.”); Freedman v. Maryland, 380 U.S. 51, 58
(1965) (setting out “procedural safeguards designed to obviate the dangers of a censorship system” posed by a state
motion picture board that prescreened movies before they could be shown in theatres).
165 See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764 n.2 (1994) (explaining that prior restraints “often take
the form of injunctions” but “[n]ot all injunctions that may incidentally affect expression” are prior restraints within the
meaning of the Court’s First Amendment cases).
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private persons to seek agency advisory opinions before they can speak can raise similar
concerns.166
Procedurally, a litigant can raise a prior restraint argument in either a facial or an as-applied
challenge.167 If a law is a prior restraint, raising the types of concerns discussed above, a
reviewing court might subject the law to strict scrutiny or ask whether it contains certain
procedural safeguards.168 In particular, if a prior restraint involves a content-based restriction on
speech or gives a licensing official “unduly broad discretion,”169 courts might, among other
safeguards, require the government to promptly go to court and prove the constitutionality of the
restraint.170 Thus, although prior restraints come with a “heavy presumption” of invalidity,171 they
are not automatically unconstitutional.172
Special Contexts
In addition to the legal standards discussed above, the Supreme Court has developed special tests
or factors for consideration when the government seeks to regulate speech in particular contexts.
While not an exhaustive list, the sections below describe some of the main areas where free
speech standards have developed to accommodate a particular context, including links to CRS
products that discuss these legal standards in more detail. The special rules or limiting principles
associated with “unprotected” categories of speech (e.g., defamation) are beyond the scope of this
section.173
Campaign Finance
Campaign finance regulations can take multiple forms, including contribution and expenditure
limits, source restrictions for contributions, and disclosure and disclaimer requirements.174 Such
regulations implicate political speech and association and have often triggered First Amendment
scrutiny when challenged in court.175 The Supreme Court has applied different levels of scrutiny
depending on the type of regulation at issue.176 For example, limits on independent expenditures
in support of a candidate would likely receive strict scrutiny.177 By limiting the “amount of money
a person or group can spend on political communication during a campaign,” limits on
166 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 335 (2010).
167 See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755–57 (1988) (explaining why only facial
challenges can adequately address the harms of self-censorship); New York Times Co. v. United States, 403 U.S. 713,
714 (1971) (holding that the government had not met its heavy burden of showing why the court should enjoin the
publication of a classified study).
168 See Freedman, 380 U.S. at 58–59 (discussing the “procedural safeguards” required by the Court to help “obviate the
dangers of a censorship system”).
169 Thomas v. Chicago Park Dist., 534 U.S. 316, 322–23 (2002) (explaining that Freedman’s procedural safeguards are
not required for “a content-neutral permit scheme regulating speech in a public forum” but that such a regulation must
“contain adequate standards to guide the official’s decision and render it subject to effective judicial review”).
170 Freedman, 380 U.S. at 59.
171 Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
172 Times Film Corp. v. City of Chicago, 365 U.S. 43, 47 (1961).
173 See CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion (2024).
174 Whitaker, Campaign Finance Law, supra note 79.
175 Cong. Rsch. Serv., Overview of Campaign Finance, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-11-1/ALDE_00013490/ (last visited Mar. 26, 2024).
176 Id.
177 Whitaker, Campaign Finance Law, supra note 79.
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independent expenditures can “reduce[] the quantity of expression by restricting the number of
issues discussed, the depth of their exploration, and the size of the audience reached.”178 By
comparison, disclosure requirements for political committees would likely receive a form of
exacting scrutiny because although they “may burden the ability to speak,” they “impose no
ceiling on campaign-related activities” and “do not prevent anyone from speaking.”179
Compelled Subsidization
When the government is speaking for itself through a regulatory program, it generally can require
its citizens to help finance that message without violating the First Amendment.180 By
comparison, the government typically may not require a person to contribute monetarily to a
private group that engages in expressive activity that conflicts with that person’s beliefs.181 The
Supreme Court has opined that compelled subsidies of this nature are “closely related” to
compelled speech and compelled association and pose similar First Amendment concerns.182 For
example, in Janus v. AFSCME, Council 31, the Supreme Court held that compulsory agency fees
collected by public-sector unions violated the First Amendment.183 The Court declined to decide
whether strict scrutiny applied to such arrangements, because it concluded that the law failed an
exacting scrutiny standard derived from earlier precedents.184
Government Programs or Funding
In general, the government “may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests—especially, his interest in freedom of speech.”185 Accordingly,
requirements that restrict or compel the speech of government grantees, beneficiaries, or program
participants might be challenged as an “unconstitutional condition” on government funding.186
Although the Court has not announced a universal standard to apply in all unconstitutional
conditions cases, it has identified some overarching principles in the context of government
programs and funding arrangements.187 For instance, the government may “selectively fund a
program to encourage certain activities it believes to be in the public interest, without at the same
178 Citizens United v. FEC, 558 U.S. 310, 339 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam))).
179 Id. at 366 (internal quotation marks and citations omitted). See also Whitaker, Campaign Finance Law, supra note
79; CRS In Focus IF12388, First Amendment Limitations on Disclosure Requirements, by Valerie C. Brannon et al.
(2023).
180 See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562 (2005) (“Citizens may challenge compelled support of
private speech, but have no First Amendment right not to fund government speech.”).
181 See Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 471 (1997) (explaining that the Court previously
“recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive
activities conflict with one’s ‘freedom of belief’”). See generally Cong. Rsch. Serv., Compelled Subsidization,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-12-3/ALDE_00000770/ (last
visited Mar. 26, 2024).
182 Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 309 (2012).
183 Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2478 (2018).
184 Id. at 2465.
185 Perry v. Sindermann, 408 U.S. 593, 597 (1972).
186 Cong. Rsch. Serv., Overview of the Unconstitutional Conditions Doctrine, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-13-1/ALDE_00000771/ (last visited Mar. 26, 2024).
187 See generally Cong. Rsch. Serv., Conditions on Federal Funding, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-13-4/ALDE_00001276/ (last visited Mar. 26, 2024); Cong.
Rsch. Serv., Selective Funding Arrangements, https://constitution.congress.gov/browse/essay/amdt1-7-136/ALDE_00001278/ (last visited Mar. 26, 2024).
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time funding an alternative program”—even if those programs are carried out through speech.188
Additionally, the government may make content-based (and sometimes viewpoint-based)
distinctions within the contours of its own programs.189 The government may not, however,
leverage funding to control private speech outside of its sponsored programs.190
Government Property and Public Forums
When it comes to government-owned or government-controlled property, the degree to which the
government can regulate speech may depend on the type of forum at issue. A forum can be a
physical space or a “metaphysical” one.191
The Supreme Court has identified at least three types of forums for purposes of First Amendment
analysis.192 In a traditional public forum such as a public street, sidewalk, or park, content-neutral
time, place, or manner restrictions must satisfy intermediate scrutiny, whereas content-based
restrictions must satisfy strict scrutiny.193 The same rules apply in a designated public forum: a
forum the government opens “for use by the public as a place for expressive activity.”194 Thus,
traditional standards of First Amendment scrutiny generally apply in public or designated public
forums.195
By comparison, the government has more leeway to restrict the speakers admitted to, and content
presented in, a nonpublic forum—property that the government has not intentionally designated
as a place for public communication.196 A restriction on access to a nonpublic forum must be
“reasonable and not an effort to suppress expression merely because public officials oppose the
speaker’s view.”197
188 Rust v. Sullivan, 500 U.S. 173, 193 (1991).
189 Id. at 198–99 (upholding regulations prohibiting staff of Title X grantees from abortion referral or counseling,
observing that the “employees remain free . . . to pursue abortion-related activities when they are not acting under the
auspices of the Title X project”).
190Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214–15 (2013) (distinguishing between
“conditions that define the limits of the government spending program—those that specify the activities Congress
wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program
itself”); see also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547 (2001) (“Congress cannot recast a condition on
funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic
exercise.”).
191 Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995) (applying limited public forum
principles to a student activity fund at a public university); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473
U.S. 788, 806 (1985) (holding that a charity drive conducted in the federal workplace and aimed at federal employees
was a nonpublic forum).
192 Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 572 (1987).
193 Cong. Rsch. Serv., The Public Forum, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-7-1/ALDE_00013542/ (last visited Mar. 26, 2024). Although
less common, a public forum can also be located on private property. See, e.g., Marsh v. Alabama, 326 U.S. 501, 507
(1946) (treating a sidewalk outside of a post office in a company-owned town as akin to a public sidewalk for First
Amendment purposes).
194 Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45–46 (1983).
195 Id.
196 See id. at 49 (“Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis
of subject matter and speaker identity.”); Cong. Rsch. Serv., Public and Nonpublic Forums, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-7-2/ALDE_00013543/ (last visited Mar. 26,
2024).
197 Perry Educ. Ass’n, 460 U.S. at 46.
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A possible fourth category is the limited public forum. In Walker v. Texas Division, the Court
suggested that a limited public forum was a distinct category from a designated public or
nonpublic forum, stating that a limited public forum is created when the government “has
‘reserv[ed a forum] for certain groups or for the discussion of certain topics.’”198 However, the
Walker Court did not explain which test applies to limited public forums.199 In other cases, the
Court has used the term in ways synonymous with both designated public forums and nonpublic
forums.200
Intellectual Property
Intellectual property law routinely involves speech, including copyrighted works and
trademarks.201 While not immune from First Amendment scrutiny,202 copyright and trademark law
also contain unique features that help serve to balance free speech and intellectual property
interests. For example, copyright law includes “built-in First Amendment accommodations,” such
as the statutory “fair use” defense to a copyright infringement claim.203 That defense protects
certain uses of a copyrighted work “for purposes such as criticism, comment, news reporting,
teaching . . . , scholarship, or research.”204 Similarly, when a person uses another’s trademark
without permission to denote the source of goods or services, the “likelihood-of-confusion
inquiry” for evaluating trademark infringement claims typically “does enough work to account
for the interest in free expression,” without applying a separate First Amendment test.205
The presumption of unconstitutionality for content-based laws206 applies differently in the
trademark context. In its 2024 decision in Vidal v. Elster, the Supreme Court explained that
“[b]ecause of the uniquely content-based nature of trademark regulation and the longstanding
coexistence of trademark regulation with the First Amendment, we need not evaluate a solely
content-based restriction on trademark registration under heightened scrutiny.”207 As a result, the
198 Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 215 (2015) (quoting Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)).
199 Id.
200 Compare Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 805 (1985) (concluding that a federal
charity drive was a nonpublic forum rather than a limited public forum, and therefore not subject to the First
Amendment standards for public forums), with Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819,
829 (1995) (reasoning, with respect to limited public forums, that the “necessities of confining a forum to the limited
and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the
discussion of certain topics”).
201 Cong. Rsch. Serv., Copyright and the First Amendment, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S8-C8-3-3/ALDE_00013065/ (last visited Mar. 26, 2024).
202 See, e.g., Matal v. Tam, 582 U.S. 218, 223 (2017) (holding that a federal trademark statute’s bar on registering
certain “disparag[ing]” trademarks violated the First Amendment).
203 Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003).
204 17 U.S.C. § 107.
205 Jack Daniel’s Properties, Inc. v. VIP Prod. LLC, 599 U.S. 140, 159 (2023); see also 15 U.S.C. § 1114(1) (imposing
trademark infringement liability for certain uses that are “likely to cause confusion”).
206 See supra “Strict Scrutiny.”
207 602 U.S. 286, 300 (2024).
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government may deny trademark registration in some circumstances because of a mark’s subject
matter or topic,208 though viewpoint-based distinctions are still prohibited.209
Prisons
Under the First Amendment, the government generally has more leeway to regulate inmates’
speech and access to information within correctional facilities.210 The Court has recognized this
latitude in light of the broader limitation on rights and privileges that incarceration brings and
because of the “legitimate policies and goals of the corrections system.”211 Still, an incarcerated
individual “retains those First Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections system.”212 In Turner v.
Safley, the Court set out a reasonableness standard of review for a prison regulation that burdens
inmates’ free speech rights.213 Such a regulation “is valid if it is reasonably related to legitimate
penological interests,” with reasonableness assessed by four factors set out in Turner.214
Public Employment
Under First Amendment case law, the government has greater constitutional authority to regulate
the speech of its employees than it does the citizenry in general.215 A free speech question might
arise if a government employer disciplines or fires an employee based on the employee’s speech.
A reviewing court faced with a First Amendment retaliation claim in such a case would first ask
whether the employee’s speech was entitled to First Amendment protection by considering
whether the employee was speaking “as a citizen” rather than pursuant to the employee’s official
duties, and on “a matter of legitimate public concern.”216 If the court answers both questions
affirmatively, then First Amendment protections apply and the court typically applies a balancing
test outlined in Pickering v. Board of Education to determine whether the government can restrict
the speech.217 Under this test, the court balances the employee’s interests as a citizen against the
government’s interests as an employer “in promoting the efficiency of the public services it
208 Id. at 310 (upholding a federal prohibition on registering a trademark consisting of a living person’s name without
that individual’s written consent, but stating that the Court was not establishing “a comprehensive framework for
judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional”).
209 See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2302 (2019) (holding that the federal trademark statute’s bar on
registering “immoral[] or scandalous” trademarks violated the First Amendment as a viewpoint-discriminatory law).
210 See generally Cong. Rsch. Serv., Prison Free Speech and Government as Prison Administrator, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-8-4/ALDE_00000758/#ALDF_00006648 (last
visited Mar. 26, 2024).
211 Pell v. Procunier, 417 U.S. 817, 822 (1974).
212 Id.
213 Turner v. Safley, 482 U.S. 78, 89 (1987); see also Shaw v. Murphy, 532 U.S. 223, 230 (2001) (stating that “Turner
provides the test for evaluating prisoners’ First Amendment challenges” and holding that Turner did not justify “an
increase in constitutional protection whenever a prisoner’s communication includes legal advice” to another prisoner).
214 Turner, 482 U.S. at 89–91. In the Religious Land Use and Institutionalized Persons Act of 2000, Congress created a
private right of action against the government with a more stringent standard of review for regulations burdening the
“religious exercise” of certain incarcerated persons. 42 U.S.C. § 2000cc-1(a), 2000cc-2; Warsoldier v. Woodford, 418
F.3d 989, 994 (9th Cir. 2005).
215 See generally Cong. Rsch. Serv., Pickering Balancing Test for Government Employee Speech, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-7-9-4/ALDE_00013549/ (last visited Mar. 26,
2024).
216 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568, 571 (1968).
217 Id. at 568.
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performs through its employees.”218 Different legal standards might apply outside of the context
of individual retaliation claims; for example, prophylactic restrictions on public employees’
speech or political activities might trigger more stringent scrutiny.219
Schools
The First Amendment applies to speech regulations at public schools because state and local
governments own or operate these schools and because teachers and students have First
Amendment rights.220 At the same time, public primary and secondary schools (e.g., elementary,
middle, and high schools) can restrict student speech in some circumstances “in light of the
special characteristics of the school environment.”221 In other words, a “school need not tolerate
student speech that is inconsistent with its ‘basic educational mission,’ . . . even though the
government could not censor similar speech outside the school.”222
The Supreme Court established one of the primary frameworks for evaluating school speech
restrictions in Tinker v. Des Moines Independent Community School District.223 In Tinker, the
Court considered a public high school’s policy that prohibited students from wearing black
armbands, which at that time signified opposition to U.S. involvement in the Vietnam War.224 The
Court stated that in order for the school “to justify prohibition of a particular expression of
opinion, it must be able to show that its action was caused by something more than a mere desire
to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”225
The Court held that the policy violated the First Amendment because the school had no evidence
that displaying these armbands would cause “substantial disruption of or material interference
with school activities.”226
Tinker’s “substantial disruption” standard is not the only basis for upholding regulations
restricting student speech.227 In a 2021 decision, the Court identified “three specific categories of
student speech that schools may regulate in certain circumstances” as a result of the Court’s postTinker case law:
218 Id.; see also Pickering Balancing Test for Government Employee Speech, supra note 215 (discussing factors that the
Court has applied in conducting this balancing test).
219 See, e.g., United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 467 (1995) (declining to apply Pickering
balancing to “Congress’ wholesale deterrent to a broad category of expression by a massive number of potential
speakers”). See generally Cong. Rsch. Serv., Loyalty Oaths, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-9-1/ALDE_00013546/ (last visited Mar. 26, 2024); Cong.
Rsch. Serv., Political Activities and Government Employees, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-9-2/ALDE_00013547/ (last visited Mar. 26, 2024); Cong.
Rsch. Serv., Honoraria and Government Employees, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-9-3/ALDE_00013548/ (last visited Mar. 26, 2024).
220 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (“It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”).
221 Id. See generally Cong. Rsch. Serv., School Free Speech and Government as Educator, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-8-3/ALDE_00000757/ (last visited Mar. 26, 2024).
222 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).
223 Tinker, 393 U.S. at 506; see also Morse v. Frederick, 551 U.S. 393, 406 (2007) (concluding that “the rule of Tinker
is not the only basis for restricting student speech”).
224 Tinker, 393 U.S. at 510.
225 Id. at 509.
226 Id. at 514.
227 Morse, 551 U.S. at 406.
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(1) “indecent,” “lewd,” or “vulgar” speech uttered during a school assembly on school
grounds; (2) speech, uttered during a class trip, that promotes “illegal drug use”; and (3)
speech that others may reasonably perceive as “bear[ing] the imprimatur of the school,”
such as that appearing in a school-sponsored newspaper.228
Thus, while the Court in Tinker found a First Amendment violation, its reasoning paved the way
for more deferential treatment of school speech restrictions.
Whether Tinker and its progeny govern regulations of speech at public institutions of higher
education (i.e., colleges and universities) is somewhat uncertain. On the one hand, the Supreme
Court has cited principles from Tinker in cases involving public colleges and universities.229 On
the other hand, the Court has recognized the role of these institutions in facilitating free debate,
opining that “the college classroom with its surrounding environs is peculiarly the ‘marketplace
of ideas.’”230 In one opinion, the Court suggested that while Tinker might apply to “reasonable
rules governing conduct,” disciplinary actions against university students based on disfavored
speech would be subject to traditional First Amendment scrutiny.231 According to the Court, “the
First Amendment leaves no room for the operation of a dual standard in the academic community
with respect to the content of speech.”232
Zoning of Sexually Oriented Businesses
In the 1980s, the Supreme Court developed the “secondary effects” doctrine in zoning cases
involving the location of adult theatres depicting sexually explicit movies.233 Under this doctrine,
if an ordinance is aimed at the “secondary effects” of such businesses on the local community
(e.g., crime, property values), rather than suppressing the expression that the businesses purveyed,
a court may apply the intermediate scrutiny standard applicable to content-neutral time, place, or
manner regulations.234
In subsequent decisions, the Court has suggested that the secondary effects doctrine might not
apply outside of the zoning context.235 When the Court decided Reed v. Town of Gilbert in 2015, it
held that facially content-based laws warrant strict scrutiny “regardless of the government’s
benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the
regulated speech.”236 That case involved a town sign code that restricted the display of signs to
228 Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2045 (2021) (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 685 (1986); Morse, 551 U.S. at 409; and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988)).
229 See, e.g., Widmar v. Vincent, 454 U.S. 263, 268 (1981) (stating that the Court “continue[s] to adhere” to Tinker’s
recognition that courts must consider speech interests in light of the “special characteristics of the school environment,”
and reasoning that because a “university’s mission is education,” the Court has upheld “reasonable regulations
compatible with that mission”).
230 Healy v. James, 408 U.S. 169, 180 (1972).
231 Papish v. Bd. of Curators of Univ. of Missouri, 410 U.S. 667, 671 (1973) (per curiam).
232 Id.
233 Cong. Rsch. Serv., Content-Neutral Laws Burdening Speech, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-7-3-7/ALDE_00013701/ (last visited Mar. 26, 2024).
234 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–50 (1986).
235 See United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 815 (2000) (“Our zoning cases, on the other hand, are
irrelevant to the question here.”); Reno v. ACLU, 521 U.S. 844, 867–68 (1997) (“According to the Government, the
[statute] is constitutional because it constitutes a sort of ‘cyberzoning’ on the Internet. But the [statute] applies broadly
to the entire universe of cyberspace.”).
236 Reed v. Town of Gilbert, 576 U.S. 155, 165 (2015).
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Freedom of Speech: An Overview
varying degrees based on a sign’s topic or message.237 Despite these developments, as of the date
of this report, the Court has not formally overruled its secondary effects cases.
Related First Amendment Rights
Free speech claims are sometimes brought alongside claims that the government violated other
rights enshrined in the First Amendment. Those rights are the free exercise of religion (and the
bar on government establishment of religion), the freedom of the press, the right to peaceably
assemble, and the right to petition the government for a redress of grievances.238 The Supreme
Court has also recognized the right of association as an implicit corollary to the freedom of
speech, covering not only expressive association but also certain forms of intimate association.239
As First Amendment rights can be intertwined in some cases, the Supreme Court has sometimes
addressed multiple First Amendment interests through a single legal framework.240
Related CRS Products
Cong. Rsch. Serv., Overview of the Religion Clauses (Establishment and Free Exercise Clause), CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-2-1/ALDE_00013267/ (last visited Mar. 26,
2024).241
Cong. Rsch. Serv., Relationship Between Religion Clauses and Free Speech Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-6/ALDE_00000040/ (last visited Mar. 26, 2024).
Cong. Rsch. Serv., Overview of Freedom of Association, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/ (last visited Mar. 26, 2024).
Cong. Rsch. Serv., Overview of Freedom of the Press, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-9-1/ALDE_00000395/ (last visited Mar. 26, 2024).
Cong. Rsch. Serv., Doctrine on Freedoms of Assembly and Petition, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-10-2/ALDE_00000223/ (last visited Mar. 26, 2024).
Author Information
Victoria L. Killion
Legislative Attorney
237 Id. at 159, 171.
238 U.S. CONST. amend. I.
239 Cong. Rsch. Serv., Overview of Freedom of Association, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-8-1/ALDE_00013139/ (last visited Mar. 26, 2024).
240 See, e.g., Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 680
(2010) (declining to treat the petitioners’ “speech and association claims as discrete” or to “engage each line of cases
independently,” because the petitioners’ “expressive-association and free-speech arguments merge”).
241 Each “Overview” essay is followed by a series of essays covering these topics in more detail. The table of contents
for the First Amendment essays in the Constitution Annotated is available at
https://constitution.congress.gov/browse/amendment-1/.
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Freedom of Speech: An Overview
Acknowledgments
Content for this report was developed in collaboration with CRS Legislative Attorneys Peter Benson,
Valerie Brannon, Eric Holmes, Whitney Novak, Paige Whitaker, and Chris Zirpoli; CRS Visual
Information Specialist Jamie Hutchinson; and CRS Paralegal Specialist Amanda Black.
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.