Free tool · Constitutional Law
Is It Protected Speech?
The First Amendment restricts the government, not private parties. If the government restricts speech, the first question is whether the speech falls in an unprotected category (incitement, true threats, obscenity, defamation, fighting words, speech integral to crime, child pornography). If not, a prior restraint is presumptively invalid, a viewpoint-based restriction is almost always invalid, a content-based restriction gets strict scrutiny and a content-neutral time, place or manner rule gets intermediate scrutiny. Commercial speech has its own intermediate test. Answer the questions below to see which applies.
Tool · Is the Speech Protected?
A content-based restriction receives strict scrutiny.
The test: The government must show that the restriction is narrowly tailored to serve a compelling interest, using the least restrictive means (Reed v Town of Gilbert). Content-based laws are presumptively unconstitutional.
- The restriction is by the government.
- The speech is protected speech.
- The restriction is content-based: it applies because of the topic or message.
Simplified First Amendment doctrine for learning. Each category has a detailed test and a body of cases, and the lines are contested. Not a prediction and not legal advice.
Follows the order in which a court reasons about a restriction on speech: is the government acting, is the speech in an unprotected category, is the restriction a prior restraint, does it target a viewpoint, is it content-based or content-neutral, and what forum is involved. Simplified First Amendment doctrine: each category has its own detailed test and the lines are contested. A teaching aid, not a prediction and not legal advice. Runs in your browser; nothing is stored or sent.
How to use it
- Say whether the government or a private party is restricting the speech.
- Choose the kind of speech.
- Say whether the rule is about the message or about time, place and manner, and whether it targets a viewpoint.
- Choose the forum, and read the test.
Common questions
Does the First Amendment apply to private employers or social media companies?
Not directly. The First Amendment limits government action. Private parties can usually restrict speech on their own property or platforms, subject to statutes and contracts.
What is a content-based restriction?
A rule that applies because of the topic, idea or message of the speech. It receives strict scrutiny and is presumptively unconstitutional.
What is a prior restraint?
An advance ban on speech, or a licensing scheme that requires approval before speaking. It carries a heavy presumption of invalidity.
Learn the law behind the tool
This tool is part of our Constitutional Law course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Constitutional Law: The First Amendment.
More free law tools
General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.