Freedom of speech is among the most important Constitutional Law topics on the MBE exam, and It is crucial to understand when the government is allowed to regulate speech. Let’s break this down and make sure we do just that.
The government must meet certain standards when regulating speech in what are known as public forums and designated public forums (these standards are the same for both).
Public Forum
A public forum is public property that has traditionally been open to speech-related activities (such as streets, sidewalks, public parks and so forth).
Designated Public Forum
Not all public property qualifies as a public forum. However, public property (that is not a traditional public forum) that the government opens up for speech-related activities will qualify as a designated public forum.
Example: A state university allows members of the public to hold meetings in one of its auditoriums. Even though the auditorium of a university is not the type of place that is traditionally open to the public for speech-related activities, the state government has opened up the auditorium to the public for such activities. Therefore it is a designated public forum.
Content-neutral versus content-based regulations
Government regulation of speech in public forums and designated public forums is either content-neutral or content-based.
Content-neutral regulations: The government is not banning certain types of speech while allowing other types of speech. The government is simply regulating all speech. In other words, the government regulation has nothing to do with the content of the speech. Content-neutral regulations trigger intermediate scrutiny. This means the government can regulate such speech if the law is narrowly-tailored to advance an important government interest, and leaves open alternative channels of communication.
Example: A state law bans any protesters from gathering on any street adjacent to or in front of an elementary school on weekdays. This is a content-neutral regulation. The law bans protesters of any kind. It does not ban protesters who are advocating for some causes while allowing protesters who are advocating for other causes.
Content-based regulations: The government is banning certain types of speech, while allowing other types of speech. This triggers strict scrutiny. The regulation must be necessary to achieve a compelling government interest. This is an extremely high standard to meet, and the government will lose on an MBE question.
Example: A state law bans people from protesting corporative activity on any street adjacent to or in front of an elementary school on weekdays. This is a content-based regulation. The law does not allow protests about corporative activity, but does allow any other type of protest. It bans certain types of speech while allowing other types of speech, and it will be subject to strict scrutiny.
Putting it Together
Now let’s take a look at a couple of examples to see how these ideas play out.
Example 1: A city ordinance bans any protesters from gathering at a particular public park between the hours of 8 a.m. and 2 p.m. on Saturdays. The purpose of the ordinance is to ensure that children can participate in youth sporting events that take place during these hours without being disrupted or frightened by protests.
Analysis: The city ordinance is regulating speech at a public park, which is a public forum. The regulation is content-neutral, because it bans all protests (It is not banning some speech while allowing other speech). A content-neutral regulation in a public forum triggers intermediate scrutiny. The city ordinance is narrowly-tailored and leaves open alternative channels of communication. The ordinance is only in effect on Saturdays between the hours of 8 a.m. and 2 p.m., which still allows protesters to gather at the park at all other times of the week. Furthermore, protesters can still gather in other public areas in the city on Saturdays between 8 a.m. and 2 p.m. Ensuring that the city’s youth can participate in youth sports and get physical activity without being disrupted or frightened would seem to be an important government interest as well. For these reasons this city ordinance is likely Constitutional.
Example 2: A city in Long Island allows members of the public to reserve the boardroom of City Hall for meetings during non-business hours. The city does not allow the boardroom to be reserved for the purpose of discussing baseball because the administrators dislike the sport. A group known as RESFOLI (Red Sox fans of Long Island) files a lawsuit claiming its First Amendment rights have been violated after its request to make a reservation was denied.
Analysis: The City Hall boardroom during non-business hours is not a public property that is traditionally open to the public for speech-related activities. However, the city has opened up the City Hall boardroom to members of the public during non-business hours, so it is a designated public forum. The standards that apply to designated public forums are the same as for public forums. This is a content-based regulation of speech. The city is barring speech related to baseball, while allowing other types of speech. As such, the regulation will be subject to strict scrutiny (it must be necessary to achieve a compelling government interest), and RESFOLI will prevail in its lawsuit.
Tip: When strict scrutiny is applicable, the government will always lose on the MBE exam. Once you determine that strict scrutiny applies there is no need to further analyze the facts to try to figure out whether the government has met this standard.
Understand
- A public forum is a public property that has been traditionally open to speech-related activities.
- A designated public forum is a public property (that is not a traditional public forum) that the government has opened up for speech-related activities.
- Regulations of speech-related activity in public forums and designated public forums are either content-neutral or content-based.
- Content-neutral regulations simply apply to all speech-related activity. They do not ban some types of speech while allowing other types of speech. Content-neutral regulations are subject to intermediate scrutiny. This means they will be allowed if they are narrowly-tailored to advance an important government interest, and leave open alternative channels of communication.
- Content-based regulations ban certain types of speech while allowing other types of speech. Content-based regulations trigger strict scrutiny, which means they must be necessary to achieve a compelling government interest.
- If it’s either a public forum or a designated public forum, intermediate scrutiny will apply if the regulation is content-neutral, and strict scrutiny will apply if the regulation is content-based.
- The government will always lose when strict scrutiny is applicable on the MBE exam.