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First Amendment rights are not absolute and speech is not all protected. Regulations on speech based on the message it communicates represents content based regulation.

Unprotected SpeechEdit

  • Fighting words: "Words by which their very utterance inflict inujry or tend to incite an immediate breach of the peace, in a one-to-one confrontation."[1]
  • Obscenity[2]
  • Fighting words: "Words by which their very utterance inflict inujry or tend to incite an immediate breach of the peace, in a one-to-one confrontation."[3]


Content neutral regulation versus content based regulation:

O'Brien established a four-prong test for determining if the regulation is content neutral or content based:

  1. Does the government have the constitutional power to enact the regulation?
  2. Does the regulation further an important or substantial government interest?
  3. Is that government interest unrelated to the suppression of free expression?
  4. Is the restriction on the First Amendment right no greater than is necessary to further the government interest?

In other words, the O'Brien test in its most basic form is intermediate scrutiny. It inquires whether the regulation is substantially related to an important government interest and if it is the least restrictive means necessary to achieve that interest. The third prong of the test simply asks if the regulation is banning the expression of the speech, or the message itself.

If the statute or regulation passes O'Brien, it is content neutral and lowers the level of scrutiny. The next inquiry for a judge may be to apply the time, place and manner (TPM) test.

If the statute or regulation fails O'Brien, it is content based and level of scutiny is raised. 

TPM Test:

The statute must:

  1. Be content neutral;
  2. Be narrowly tailored to serve a significant government interest; and
  3. Leave ample alternative channels open for the expression of that message.

SourcesEdit

  1. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  2. See Obscenity
  3. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).