First Amendment tests and doctrines

Statue of Justice, Prague, Czech Republic (Wikimedia Commons)

Some of the most important concepts and doctrines that apply to First Amendment and communications law include the following:

State action doctrine

The First  Amendment protects people from censorship by any  government (or state) actor, but not from private non-state actors.  (The term “state” here is used generically.) The First Amendment says “Congress shall make no law … abridging the freedom of speech, or of the press.” This applies to government action but not to private editorial decisions.

Examples: If a social media platform  decides to reduce the prominence of a person or viewpoint by adjusting its algorithms,  it is not performing a government action and the person cannot sue the company under the First Amendment. In Moody v Netchoice,  a 2024 case, the US Supreme Court struck down laws passed in Texas and Florida that were intended to prevent censorship of conservative voices by social media companies.  The states argued that the social media companies were acting on behalf of the government as common carriers, and therefore, they should be regulated. The court rejected the common carrier argument and said that these proposed laws were unconstitutional because they  interfered with the  “exercise of editorial control and judgment” by private social media companies.   

Similarly, in Prager v YouTube 2020,  the non-profit Prager institution sued YouTube (and its parent Google) for removing access to some of its videos in response to (what YouTube said were) violations of  its rules.   YouTube is a private forum, the 9th circuit court found, and “not subject to judicial scrutiny under the First Amendment.”  It is YouTube’s own editorial decisions that are protected by the First Amendment, and its editors have the right to manage the platform as they see fit, the court said.   

The state action  doctrine rests in part on the 14th Amendment  

The 14th is one of the three “Reconstruction Amendments” that followed the US Civil War, and it extends the state action doctrine from the national level to the states. The amendment passed in 1868 and meant that state governments could not censor or suppress speech any more than the federal government could.  Note, however , that the First Amendment and other guarantees of civil rights were not “incorporated” until the early 20th century.

Example: States were free to make their own laws about what citizens could say, circumventing the First Amendment,  until  it was incorporated in the 1925 Gitlow v New York case.  

Prior restraint 

Prior restraint is a form of censorship in which a government  reviews the content of materials and then prevents their publication.  (Section 4 of this web / textbook is devoted to prior restraint issues).  In the US, the UK and other common law nations, this is one of the least tolerable government actions for speech, press or other expressive activity.     

Example:  In Near v Minnesota, 1931, the state of Minnesota banned an irresponsibly published newspaper.  The Supreme Court said that shutting down J.M. Near’s “Saturday Press”  was an unconstitutional prior restraint.  The newspaper could be sued for libel, invasion of privacy or other unprotected categories of speech, but that could only occur after publication.  Justice Charles Evans Hughes said:

…the fact that liberty of press may be abused does not make any less necessary the immunity of the press from prior restraint … a more serious evil would result if officials could determine which stories can be published .

Example:  When a secret history of the Vietnam war called the “Pentagon Papers” was leaked to major newspapers in 1971,  the US Dept. of Justice asked the courts to enjoin (stop) publication.   In the New York Times v US decision, the  Supreme Court sided with the newspapers.  Justice Hugo Black said:

The press was (protected in the Constitution) to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Compelled speech doctrine

The government can violate the First Amendment when it compels certain kinds of speech.   The best example is the flag salute cases from the 1940s.   In the case  Minersville School District v. Gobitis (1940) the Supreme Court ruled that states could require public school students to salute the U.S. flag and recite the pledge of allegiance without violating students’ First Amendment rights. The law even allowed parents to be fined or jailed for up to 30 days.  The students here were members of the religious group Jehovah’s Witnesses.  But as World War II broke out, and the example of the Nazis forcing everyone to yell ‘Heil Hitler’ sank in, the judges started thinking they made a mistake.

Three years later the court overturned Gobites in West Virginia State Board of Education v. Barnette (1943) Here the court said that schools could not require students to salute the flag and say the pledge did infringe on their First Amendment rights.   In the court’s formal opinion,  Justice Robert H. Jackson said:  

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion[,] or force citizens to confess by word their faith therein.      

Viewpoint  Discrimination  and scrutiny

When courts review laws that curtail freedom of speech or press, one of the first issues is the level of scrutiny (judicial examination) that should be applied.  If the law addresses specific content, then courts will use (1) a  strict scrutiny  standard. If the law addresses  content-neutral material, then  (2) an intermediate scrutiny standard is applied. If the subject involves routine regulation, then  (3) a rational basis review may be used.

Let’s take a closer look at these three standards under the Content Discrimination Doctrine:

  1. Strict scrutiny is applied to content or viewpoint discrimination

Strict scrutiny is high-level a test for the constitutionality of laws that may  directly restrict content or viewpoints.  For example, a local ordinance that prevented fraternities or sororities from posting Greek letters on their houses is viewpoint restriction and could be subject to strict scrutiny review by the courts.

Strict scrutiny tests determine if a law or regulation  a) is necessary; b) and if it advances a compelling government interest; c) and if it is the least restrictive means for achieving the end, or in other words, it is not overly broad.

Examples of laws struck down that were overly broad include content-specific sign ordinances  (Reed v Town of Gilbert, 2015), and the Child Online Protection Act (COPA) which did not survive strict scrutiny in Ashcroft v. ACLU (2004) because restrictions it put on free speech were not the least restrictive available. The court reasoned that filtering or blocking software was a less speech restrictive alternative.

2. Intermediate scrutiny is applied to content neutral  material 
The questions in an intermediate scrutiny review are:  (1) Is restriction within the constitutional power of government? (2) Does restriction further some important or substantial governmental interest? (3) Is the governmental interest unrelated to the suppression of free expression? (4) Is the restriction narrowly tailored – no greater than necessary?(This from US v O’Brien test; also) 5) Does the restriction leave open ample opportunities for communication?

Time, place and manner restrictions are often used in situations where content-neutral restrictions make sense.  Example:  FCC v Pacifica (the 1978 George Carlin “safe harbor” decision) in which indecent content is only allowed on broadcast radio or TV after 10 pm;  Also in Ward v. Rock against racism, loud concerts in New York’s Central Park could be controlled by  city audio technicians and focused amplification to minimize disruption.

The Central Hudson test  is a four part intermediate scrutiny test for appropriate regulation of advertising. The test asks:   1) is the product legal 2) is there a compelling government interest 3) does the regulation further the interest 4) is the regulation narrowly tailored?  (See Central Hudson Gas & Electric v Public Utilities Commission of New York, 1980).

Note also:  “Heightened scrutiny” also used for some types of cases involving supposedly content neutral regulations that affect  suspect classifications — people who have been historically disadvantaged. In NAACP v Alabama  1958, the Supreme Court protected the free association rights of a Black organization that was being targeted by the state of Alabama during the Civil Rights movement.

 Rational basis review  is the usual standard of review that courts apply when considering routine regulations such as FCC decisions on broadcast frequencies.   Courts applying this level of review are trying to determine whether a law is “rationally related” to a “legitimate” government interest.

Examples include FCC v. Beach Communications Inc. 1993,  involving the FCC power to define what kinds of cable systems should be regulated; and Romer v Evans 1996, in which a Colorado law that protected discrimination against LGBTQ people was struck down by the US Supreme Court because there was no rational state interest in furthering discrimination against gay people.

Overbreadth, vagueness 

In either a strict scrutiny or intermediate scrutiny test, sometimes the terms are not clear enough, and the law can be seen as reaching so deeply into Constitutional rights that no one knows what is to be punished and what will be permitted. Uncertain laws can be selectively administered, and have at times been used to violate Constitutional rights. Therefore a good law is not overly broad. A good law is narrowly tailored to directly meet compelling interests.

Example: US v Stevens, 2010,  banned “crush videos” because they depicted illegal cruelty to animals). The Supreme Court said that the law was overly broad and should have been more narrowly tailored.  Although the intent of the law was good, the way the law was written would have led to problems with legitimate videos depicting hunting and fishing.     

Forum analysis

When deciding whether or not a restriction is narrowly tailored, courts consider the setting of the communication. The setting has three main divisions from public forum to non- public forum.  In a public forum people have a right to express themselves. They do not have that right in a non-public forum.  

  • Public Forum:  City park, government official’s social media pages  
  • Limited purpose public forum: a college campus where students and faculty have public forum rights but visitors to the campus may not.
  • Non-public forum; parade ground on a military base, or inside a courtroom.

Even if people have a right of free speech in a particular location, there may be reasonable time, place and manner restrictions.  In the 1981 Heffron vs the International Society for Krishna,  a religious group had the right to a booth in a fixed location at a state fair, but no right to distribute material elsewhere. This “time, place and manner” restriction is permissible so long as expression is possible in some manner; this is called the Hefron principle.

Clear and present danger test …

This is the early 20th century test for determining when speech is protected from government censorship and when it is not. The test was handed down in the Schenck v US case, 1919. An example of a clear and present danger from speech was when a person would falsely shout “fire” in a crowded theater and potentially cause injuries or deaths. It was overturned by the Brandenburg v Ohio imminent lawless action test.

… leads to the Imminent lawless action test

Inflammatory statements may pose a danger, but they are not enough to justify government suppression under the  Brandenburg v. Ohio (1969) imminent lawless action standard.  In that case, the Court overturned the   conviction of KKK wizard Clarence Brandenburg under an Ohio law prohibiting advocacy of crime after he made inflammatory statements such as extracting “revengeance” on the government if it continued to discriminate against white people.  In its decision, the US Supreme Court said that the government could only punish advocacy that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  This is the controlling case today, that is, the current standard, for US or state government suppression of political speech.

the First Amendment and Religion

The First Amendment says that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”   These are known as the establishment clause and the free exercise clause.

  • The establishment clause was designed to protect the separation of church and state as institutions.  In his Memorial and Remonstrance of 1785, James Madison said that a proposal to use Virginia state funds for teaching Christianity would be “a dangerous abuse of power.”
  • The free exercise clause was designed to protect individual freedom of religion. 

Modern First Amendment questions about religion may involve funding for religious schools or the use of religious icons in public parks or schools.  The courts have operated under two conflicting legal theories — strict separation or “acomodationism,” which says that government should neither endorse nor hinder religion. A set of tests, especially the “Lemon test” (  Lemon v. Kurtzman  1971), can helped decide whether the secular purposes of funding may be considered.

Common carrier doctrine 

The idea that a “common carrier” can’t discriminate against types of customers goes back many centuries and is a major foundation of common law.  Originally, a ship or coach carrying goods for the public at large was forbidden to discriminate on the basis of a customer’s religion or politics.  This was extended to the telegraph and railroads in the 1800s, and was generally applied to telephone and telegraph (but not radio and TV)  under the Federal Communications Act of 1933.

Modern question: Does the doctrine apply to social / digital media today? Some say yes (“Big tech are common carriers“), some say probably not (Cato Institute) and some say definitely not (“How to regulate online platforms.”)  The question was definitively answered in Moody v Netchoice, 2024.

Note: Both common carrier and public accommodations approaches were suggested by Supreme Court Justice Clarance Thomas in his dissent in the social media regulation case  Knight v Trump, 2017 and 2021.

 Public accommodations doctrine 

Public accommodations are legally defined as facilities, whether publicly or privately owned, that are used by the public, such as stores, restaurants, universities, and many other types of facilities.  Laws against customer discrimination  were extended during the civil rights movement.

Modern question: Does the doctrine apply to social / digital media today? Again, some say yes (“Apply public accommodation laws to big tech,“) some say maybe, at least, in the case of traditionally marginalized groups under the Americans with Disabilities Act  (“Lawyers committee for civil rights“) and some say definitely not (“Public accommodation law wont work for social media“).

Burden of proof

Which side has to do the most to prove its case in a legal action? In a criminal case, innocence is assumed until guilt is proven by  beyond a reasonable doubt, and the prosecution has the burden of proof.  In a  civil case, the standard is the preponderance of evidence (51% would win over 49%) and the plaintiff has the burden of proof.  The exception involves constitutional cases involving freedom of press, freedom of speech or freedom of religion, where the burden falls heavily on anyone trying to curtail Constitutional rights. In these constitutional cases, strict and intermediate scrutiny tests are applied, depending on the content of the speech.

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