When can the government restrict speech?

Since there seems to be much confusion over what the First Amendment entails on Tumblr, I thought I’d post a brief guide from an old introductory ConLaw textbook to clear things up a bit. Here are a few general categories of speech that the Supreme Court has determined the government may regulate:

• Forms of Expression outside First Amendment Scope: Certain classes of expression have always been considered unprotected by the Constitution. Chief among these are obscenity and libel. If expression meets the Court’s rather strict definitions of libel or obscenity, the First Amendment imposes no barrier to government regulation.
• Violence: The government has the authority to protect citizens from personal injury. If expression takes a violent form or incites others to violence the government may regulate it.
• Property Damage: The government has the right to protect private and public property from being destroyed or damaged. Antiwar protestors, for example, who express themselves by setting fire to a National Guard armory have gone beyond their First Amendment guarantees and can be arrested for their conduct.
• Criminal Speech: Some forms of expression are crimes by their very nature. For example, the Constitution does not protect those who might give military secrets to the enemy in time of war or engage in conspiracies to violate valid criminal laws.
• Encroaching on the Rights of Others: Freedom of expression does not provide a license to infringe on the rights of others. For example, if animal rights protestors block an entrance to a zoo or pro-life groups prevent access to an abortion clinic, the government may intervene. In both cases, the protestors have curtailed the right of the public to move about without interference.
• Burdens on Government Functions: Regulation is permissible if expression places a burden on a legitimate government function. If, for example, environmentalists opposed to the construction of a Corps of Engineers dam lie down in front of bulldozers, the government may remove them.
• Trespass: The freedom of expression does not include the right to speak anywhere one wishes. A campaign worker, for example, does not have the right to come into your home without permission to promote the candidate’s cause. Similarly, some public facilities are not legitimate places for groups of demonstrators to congregate. The government may, for example, prohibit antiwar protestors from demonstrating on a military base.
• Time, Place, and Manner Restrictions: By this standard the Court acknowledges that government has the general authority to impose reasonable time, place, and manner restrictions on the freedom of expression. Therefore, the Court would certainly uphold the arrest of demonstrators who gathered in the middle of an expressway or of political zealots who promoted their candidate by driving a sound truck through a residential area at 2:00 am. 

There are, however, restraints on the government’s power to restrict speech, such as the following general categories:

• Appropriate Purpose: Any government restriction on freedom of expression must have a clearly defined, valid government purpose. A law that makes inciting to riot a crime, for example, would rest on the legitimate government purpose of curtailing violence. A law prohibiting criticism of the president, motivated by an interest in keeping incumbents in power, would clearly fail this test. In some areas the Court has demanded that the government’s purpose be legitimate; in others, the justices have required a higher standard - that the purpose be a compelling one.
• Prior Restraint: Government may prosecute individuals who violate legitimate restrictions on expression but, absent extraordinary circumstances, may not intervene before the fact. For example, the government may not constitutionally require a speaker to submit for review a copy of the speech before its delivery to make sure that nothing in it may incite the audience to violence.
• Content and Viewpoint Discrimination: Laws regulating expression should be content and viewpoint neutral. It is not the government’s role to evaluate expression based on the positions taken by the speaker. For example, a local ordinance that allowed public gatherings for all groups except political organizations would be guilty of content discrimination. Another ordinance that permitted demonstrations by prowar groups, but not antiwar organizations, would violate the principle against viewpoint discrimination. Restrictions based on content or viewpoint are subject to strict judicial scrutiny and are unlikely to survive a court challenge. 
• Overbreadth: Any regulation of expression must be narrowly tailored to meet the government’s objectives. If a legislature, concerned with protests that cause violence, passes a law prohibiting all public demonstrations, the statute would fail the narrow construction requirement. This regulatory scheme would be overbroad, going far beyond what is necessary to deal with the legislature’s legitimate concern by restricting constitutionally protected expression along with unprotected speech.
• Vagueness: Legislatures must draft laws restricting freedom of expression with sufficient precision to give fair notice as to what is being regulated. If normally intelligent people have to guess what a statute means and come to different conclusions about what is prohibited by it, the statute is unconstitutionally vague.  
• Chilling Effect: A law intended to regulate certain forms of illegitimate expression cannot be written so as to make people fearful of engaging in legitimate activity. Often such a “chilling effect” stems from statutes that are vague or overbroad. Assume that a state legislature, concerned about sexual activity at nightclubs, passes a law making it illegal to serve alcohol in any establishment featuring nude entertainment. In response to that law, museum officials might be fearful of sponsoring a gathering at which patrons would drink wine while viewing an exhibition of paintings that includes nude figures. Here a statute designed to curb obscenity creates a chilling effect on the exercise of legitimate activities. 

The categories listed here are meant to be general and broad to include all forms of relevant expression. Where a specific situation or instance of expression fits in may not be clear and the Supreme Court’s determination of where free expression may be constitutionally curtailed is complicated. This post is meant to give you a general idea as to how the freedom of expression clause in the First Amendment has been interpreted by our courts.

Freedom of speech is not freedom from the repercussions of your speech
Freedom of speech is not freedom from the repercussions of your speech
Freedom of speech is not freedom from the repercussions of your speech
Freedom of speech is not freedom from the repercussions of your speech
♪Freedom of speech is not freedom from the repercussions of your speech♪