Freedom of Speech: An Overview (A New Report From the Congressional Research Service (CRS))

Freedom of Speech: An Overview (R47986) was first published by the Congressional Service (CRS) on March 29, 2024.

The report runs 27 pages; PDF.

From the Introduction to the Report:

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.

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.

Direct to Full Text Report
27 pages; PDF. 

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