First Amendment Checklist Prof. M.

Strauss
Adapted from Eugene Volokh, The First Amendment (2001)

1. Is the Government restricting Speech?

Government---speech both relevant concepts!
2. Is the restriction based on the CONTENT of the Speech (ie, is the government
restricting speech because of its communicative content—because of the message the
speech communicates to its listeners or because of the consequences that flow from
the message? If so, go to #3. If not, go to # 5
3. If the restriction is based on the content of the speech:
a. Does the speech fall within a category of “unprotected speech?” does the
speech constitute incitement? Obscenity? Fighting words? Threats? Child
pornography? IF THE SPEECH FALLS WITHIN ONE OF THESE
CATEGORIES---FOLLOW THE RULE FOR THE PARTICULAR
CATEGORY
b. Is the speech less protected commercial speech, and thus subject to
intermediate scrutiny (plus)?
c. Is the speech defamatory, and thus subject to the specific rules on libel based
on who the plaintiff is?

4. If the content based regulation does not fall within one of the recognized categories of
unprotected speech, and isn’t commercial speech or libel, then the regulation of the
speech is invalid unless the law passes strict scrutiny? (eg: indecency)
5. If the government is restricting speech for reasons unrelated to its communicative
impact (ie, as a content neutral, time, place and manner regulation) then apply an
intermediate scrutiny test to the law.
6. Are there other aspects of the law that merit attention. Ie, does the law/regulation
focus on the place of speech so that forum analysis is relevant? Does the law pertain
to minors?
7. Is the regulation vague or overbroad?