Select Page

First Amendment
South Texas College of Law Houston
Bergin, Kathleen

First Amendment
Political speech is high value speech
Speech should be protected unless the harm (breach of the peace, injury) cannot be avoided
Content-based v. Content-neutral speech
Government is regulating based on the content of the message
Strict scrutiny applied
Government must have a compelling interest
Narrowly tailed for that interest
Content-neutral regulation of speech
Government is not regulating based on the content of the message
Intermediate-scrutiny applied
Government must have an substantial interest
Substantially related to that interest
Have to be both subject-matter neutral (not disallow discussion of certain topics and
Viewpoint neutral (not apply only to supporters or only to opponents). If fails either
One then the law is deemed content-based.
examples of content-neutral interests:
(free flow of traffic at airports, or state fairs, administrative needs of selective serevice,
preventing fraud, curtailing littering, preserving peach and privacy in residential
neighborhoods, fighting corruption, prostitution, organized crimes, etc.)
If content-based it doesn’t matter whether it’s a Public or Non-Public forum (strict scrutiny)
1) There must be a compelling state interest
2) and must be narrowly tailed for that interest.
Vagueness: doctrine whereby statutes are void if they are so vague that a reasonable person would not
 understand what behavior it prohibits. Any vague law violates due process even if it’s unrelated to speech.
It should be noted that vagueness protects speech that is otherwise unprotected.
Overbroad: in addition to proscribing activities which may be constitutionally forbidden, it also sweeps
within its coverage speech or conduct which is protected by guarantees of free speech or free association.
If a law is over-restrictive, but unlikely to be applied often, then courts will not declare it wholly
unconstitutional, but will evaluate its legality as applied, on a case by case basis.
Public Forums (streets, parks, sidewalks)
Public forums are forums that have traditionally been open to the public

rty is separate from an acknowledged public area, this may
indiciate it is non-public.
Non-Public Forum (airports, schools, jail property, military bases)
Non-Public forum’s are forums traditionally not open to the public for expression
Here the government may employ an easier to meet
time, place and manner restriction
government regulation just has to be
1) rationally related to
2) legitimate government interest [as long as interference with speech is not substantial, if there are alternative channels then
means not substantial] For example: Total ban on literature will not meet the rational basis test
May not forbid discussion of certain viewpoints, but may forbid certain subjects
Also, government may restrict the space to its intended function
If there is a history of the government restricting speech, it probably is not a public forum