Limitations on free speech are a frequently tested topic in Constitutional Law on the bar exam. Many questions turn on whether a law is content-based or content-neutral and what level of scrutiny applies.
Understanding these distinctions makes free speech questions much more predictable. For a broader overview of how free speech is analyzed on the bar exam, start with our free speech guide.
What Are Free Speech Limitations?
Although the First Amendment protects speech, the government may regulate speech in certain circumstances.
The key issue on the bar exam is whether the regulation is content-based or content-neutral.
Content-Based Restrictions
Content-based laws regulate speech based on its subject matter or message.
These laws are subject to strict scrutiny and are usually invalid.
To be upheld, the government must show:
• A compelling government interest
• The law is narrowly tailored
Examples include laws that target specific viewpoints or types of speech.
Content-Neutral Restrictions
Content-neutral laws regulate speech without regard to its content.
These laws are typically analyzed under intermediate scrutiny.
A common test involves time, place, and manner restrictions, which must:
• Serve an important government interest
• Be narrowly tailored
• Leave open alternative channels of communication
These restrictions are more likely to be upheld.
Unprotected and Less Protected Speech
Certain categories of speech receive little or no protection:
• Fighting words
• True threats
• Obscenity
These categories are often tested and may be regulated more freely.
Example
A law banning political protests in a public park based on their message is content-based and likely invalid.
A law requiring permits for all demonstrations, regardless of content, is content-neutral and may be upheld if reasonable.
Common Exam Traps
Free speech questions often include traps such as:
• Misidentifying whether a law is content-based
• Applying the wrong level of scrutiny
• Ignoring whether alternative channels exist
Careful classification is critical.
How Free Speech Limitations Are Tested on the Bar Exam
Questions typically require:
• Identifying whether the law is content-based or content-neutral
• Applying the correct level of scrutiny
On essays, clearly walk through the classification and apply the appropriate test. On multiple-choice questions, focus on how the law regulates speech.