{"id":233,"date":"2015-06-04T17:34:50","date_gmt":"2015-06-04T17:34:50","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=233"},"modified":"2026-05-04T17:10:37","modified_gmt":"2026-05-04T17:10:37","slug":"1-3-fundamental-concepts","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/intro\/1-3-fundamental-concepts\/","title":{"rendered":"First Amendment tests and doctrines"},"content":{"rendered":"

Statue of Justice, Prague, Czech Republic (Wikimedia Commons)<\/p><\/div>\n

Some of the most important concepts and doctrines<\/strong>\u00a0that apply to First Amendment and communications law include the following:<\/p>\n

State action doctrine<\/a><\/h3>\n

The First\u00a0 Amendment protects people from censorship by any\u00a0 government (or state) actor, but not from private non-state actors.\u00a0 (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.<\/p>\n

Examples:<\/strong><\/em>\u00a0If a social media platform\u00a0 decides to reduce the prominence of a person or viewpoint by adjusting its algorithms,\u00a0 it is not<\/strong> performing a government action and the person cannot sue the company under the First Amendment. <\/em><\/span>In Moody v Netchoice<\/a>,\u00a0 a 2024 case,<\/strong> 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.\u00a0 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\u00a0 interfered with the\u00a0 \u201cexercise of editorial control and judgment\u201d by private social media companies.\u00a0 \u00a0<\/em><\/p>\n

Similarly, in <\/em><\/strong>Prager v YouTube<\/strong><\/a> 2020,\u00a0 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\u00a0 its rules.\u00a0 \u00a0YouTube is a private forum, the 9th circuit court found<\/a>, and \u201cnot subject to judicial scrutiny under the First Amendment.\u201d\u00a0 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.\u00a0 \u00a0<\/em><\/p>\n

The state action\u00a0 doctrine rests in part on the 14th Amendment\u00a0\u00a0<\/a><\/strong><\/p>\n

The 14th is one of the three “Reconstruction Amendments<\/a>” 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.\u00a0 Note, however , that the First Amendment and other guarantees of civil rights were not “incorporated” until the early 20th century.<\/p>\n

Example: <\/em><\/strong>States were free to make their own laws about what citizens could say, circumventing the First Amendment,\u00a0 until\u00a0 it was incorporated in the 1925 Gitlow v New York<\/a> case.\u00a0\u00a0<\/em><\/p>\n

Prior restraint\u00a0<\/strong> <\/span><\/a><\/h3>\n

Prior restraint is a\u00a0form of censorship<\/a> in which a government\u00a0 reviews the content of materials and then prevents their publication.\u00a0 (Section 4 of this web \/ textbook<\/a> is devoted to prior restraint issues).\u00a0 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.\u00a0 \u00a0 \u00a0<\/span><\/p>\n

Example:\u00a0<\/strong> In Near v Minnesota,<\/a> 1931, the state of Minnesota banned an irresponsibly published newspaper.\u00a0 The Supreme Court said that shutting down J.M. Near’s “Saturday Press”\u00a0 was an unconstitutional prior restraint.\u00a0 The newspaper could be sued for libel, invasion of privacy or other unprotected categories of speech, but that could only occur after<\/em> publication.\u00a0 Justice Charles Evans Hughes said:<\/p>\n

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…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 .<\/p>\n<\/blockquote>\n

Example:\u00a0<\/strong> When a secret history of the Vietnam war called the “Pentagon Papers” was leaked to major newspapers in 1971,\u00a0 the US Dept. of Justice asked the courts to enjoin (stop) publication.\u00a0 \u00a0In the New York Times v US<\/a>\u00a0decision, the\u00a0 Supreme Court sided with the newspapers.\u00a0 Justice Hugo Black said:<\/p>\n

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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.<\/p>\n<\/blockquote>\n

Compelled speech doctrine<\/strong><\/a><\/h3>\n

The government can violate the First Amendment when it compels certain kinds of speech.\u00a0 \u00a0The best example is the flag salute cases from the 1940s.\u00a0 \u00a0In the case\u00a0 Minersville School District v. Gobitis<\/i> (1940) <\/a>the Supreme Court r<\/span>uled that states could<\/strong><\/span> require public school students to salute the U.S. flag and recite the pledge of allegiance <\/span>without violating students\u2019 First Amendment rights. The law even allowed parents to be fined or jailed for up to 30 days.\u00a0 The students here were members of the religious group Jehovah’s Witnesses.\u00a0 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.<\/p>\n

Three years later the court overturned Gobites in West Virginia State Board of Education v. Barnette<\/i> (1943)<\/a>\u00a0Here the court said that schools could not<\/strong><\/span> require students to salute the flag and say the pledge did infringe on their First Amendment rights.\u00a0 \u00a0In the court’s formal opinion,\u00a0 Justice Robert H. Jackson said:\u00a0\u00a0<\/span><\/p>\n

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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. <\/span>\u00a0 \u00a0 \u00a0<\/span><\/p>\n<\/blockquote>\n

Viewpoint\u00a0 Discrimination\u00a0 and scrutiny<\/a><\/h3>\n

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. \u00a0If the law addresses specific content<\/strong>, then courts will use (1) a\u00a0 strict scrutiny <\/i><\/b><\/span>\u00a0standard. If the law addresses\u00a0 content-neutral material,<\/strong> then\u00a0 (2) an intermediate scrutiny <\/em><\/strong><\/span>standard is applied. If the subject involves routine regulation, then\u00a0 (3) a rational basis review<\/strong><\/em><\/span> may be used.<\/p>\n

Let’s take a closer look at these three standards<\/span> under the Content Discrimination Doctrine:<\/p>\n

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  1. Strict scrutiny<\/a><\/em> is applied to content or viewpoint discrimination<\/a>
    \n<\/span><\/strong><\/li>\n<\/ol>\n

    Strict scrutiny is high-level a test for the constitutionality of laws that may\u00a0 directly restrict content or viewpoints.\u00a0 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.<\/p>\n

    Strict scrutiny tests determine if a law or regulation\u00a0 a) is necessary; b) and if it advances a compelling<\/strong> government interest; c) and if it is the least restrictive means<\/strong> for achieving the end, or in other words, it is not overly broad.<\/p>\n

    Examples of laws struck down that were overly broad include content-specific sign ordinances \u00a0(Reed v Town of Gilbert<\/a>, 2015), and the\u00a0Child Online Protection Act<\/a> (COPA) which did not survive strict scrutiny in\u00a0Ashcroft v. ACLU<\/em><\/span><\/a> (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.<\/p>\n

    2. Intermediate scrutiny<\/span> is applied to content neutral\u00a0 material\u00a0
    \n<\/span><\/strong>The questions in an intermediate scrutiny review are:\u00a0 (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 \u2013 no greater than necessary?(This from US v O’Brien test; also) 5) Does the restriction leave open ample opportunities for communication?<\/p>\n

    Time, place and manner restrictions<\/strong> <\/a>are often used in situations where content-neutral restrictions make sense.\u00a0 Example: \u00a0FCC v Pacifica (the 1978 George Carlin “safe harbor” decision) in which indecent content is only allowed on broadcast radio or TV after 10 pm;\u00a0 Also in Ward v. Rock against racism, loud concerts in New York’s Central Park could be controlled by\u00a0 city audio technicians and focused amplification to minimize disruption.<\/p>\n

    The Central Hudson test\u00a0<\/a><\/strong> is a four part intermediate scrutiny test for appropriate regulation of advertising. The test asks:\u00a0 \u00a01) is the product legal 2) is there a compelling government interest 3) does the regulation further the interest 4) is the regulation narrowly tailored?\u00a0 (See Central Hudson Gas & Electric v Public Utilities Commission of New York<\/a>, 1980).<\/p>\n

    Note also<\/strong>:\u00a0 \u201cHeightened scrutiny\u201d also used for some types of cases involving supposedly content neutral regulations that affect\u00a0 suspect classifications<\/span> — people who have been historically disadvantaged. In NAACP v Alabama<\/a>\u00a0 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.<\/p>\n

    \u00a0Rational basis review <\/span><\/strong>\u00a0is the usual standard of review<\/a> that courts apply when considering routine regulations such as FCC decisions on broadcast frequencies.\u00a0 \u00a0Courts applying this level of review are trying to determine whether a law is “rationally related” to a “legitimate” government interest.<\/p>\n

    Examples include <\/strong>FCC v. Beach Communications Inc<\/a>. 1993, \u00a0involving the FCC power to define what kinds of cable systems should be regulated; and\u00a0Romer v Evans<\/a> 1996, in which a Colorado law that protected discrimination against<\/em><\/strong> LGBTQ people was struck down by the US Supreme Court because there was no rational state interest in furthering discrimination against gay people.<\/p>\n

    Overbreadth<\/a>, vagueness\u00a0<\/strong><\/p>\n

    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 <\/strong>to directly meet compelling interests.<\/p>\n

    Example: US v Stevens, <\/a>2010,\u00a0 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. \u00a0Although 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.\u00a0 \u00a0 \u00a0<\/em><\/p>\n

    Forum analysis<\/a> <\/strong><\/h3>\n

    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.\u00a0 <\/span><\/span>In a public forum people have a right to express themselves. They do not have that right in a non-public forum. \u00a0<\/span><\/p>\n