First Amendment Freedoms: Regulation of the Freedom of Speech and Assembly
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The Content-Conduct Separation
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As previously mentioned, there are both content-based regulations, and conduct-based regulations, and it’s important that we are able to separate the two and understand them on an individual basis. Content-based regulations are regulations put in place by the government that forbid the communication of certain, specific information or content. Conduct-based regulations are regulations that are put in place by the government that control the conduct associated with exercising your freedom to speak, such as the time of day you choose to speak. Depending on which type of regulation is being administered by the government, the standard that will apply to determine if the regulation is reasonable and constitutional will be different.

Generally speaking, it is unconstitutional for the government to regulate the content of speech. There are very few exceptions, and for those exceptions, the government’s restriction must meet the test popularly known as strict scrutiny. Stricty scrutiny is a test which says a regulation is constitutional only if it is narrowly tailored to achieve a compelling governmental interest. Some of the regulations that have successfully met the test of struct scrutiny are regulations on content involving fighting words, creating imminent and lawless action, obscenity, and defamatory speech.

If a regulation on speech is content-neutral, then it must meet the test of intermediate scrutiny. The test of intermediate scrutiny is met if the regulation advances an important governmental interest that is unrelated to the suppression of speech. If this first part of the intermediate scrutiny test is met, then the government must ensure that the regulation does not burden substantially more speech than necessary to further those interests.

In addition to content-related regulations, there are also conduct-based regulations. As previously discussed, a conduct-based regulation controls the conduct surrounding the speech, such as the time of day that a person chooses to speak. A person’s conduct surrounding his or her speech can be regulated by the government so long as the restrictions are time, place, and manner restrictions that are content-neutral. For more information on regulations based on conduct, please see "First Amendment Freedoms: Conduct-Based Regulations."

Next, we’ll look at the scope of what is being spoken.