Under the First Amendment to the U.S. Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Within the First Amendment lie many important freedoms that rest at the very core of our everyday being. Of those freedoms are the freedom of speech and the freedom of assembly. Because these freedoms are so embedded in history as almost sacred and fundamental, the government’s regulation of these freedoms is not permitted absent some significant government interest or policy that would be served by such a regulation.

In this article, we’ll look at the following main concepts: content-based regulations and conduct-based regulations, and the scope of the speech in question.

Next, we’ll discuss the difference between content-based regulations and conduct-based regulations.

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.

With our constitutionally guaranteed freedom of speech, it is important to understand the scope of the speech that we are afforded as citizens of the United States of America. First and foremost, the freedom to speak similarly includes the freedom not to speak. In other words, the government cannot require people to display messages or make certain communications that they find disagreeable to their own personal beliefs. Additionally, the government cannot prevent people from communicating a belief or an idea through some type of act. For example, in the 1969 case of Tinker v. Des Moines, the United States Supreme Court decided that the government could not prevent students from wearing black armbands to protest the Vietnam War. Such an act was protected under the First Amendment to the U.S. Constitution.

There are a few exceptions wherein the government can regulate speech and conduct as it relates to the scope of the speech. As previously discussed, the right to speak brings with it the right not to speak. We talked about how the government cannot require a person to display or communicate a message. However, the government does have the ability to tax citizens of the United States. How is this related to the issue of free speech, you ask? Well, the government can use the tax money that it collects to communicate a public message with which many citizens may disagree.

In addition to the above discussion, the government has the ability to regulate conduct related to speech if it has an important interest in the regulation that is independent of the speech, and the incidental burden on speech is minimal. A perfect example of this is when the government prohibited the burning of draft cards during the Vietnam War in order to ensure "the smooth and proper functioning of the system" through functions such as providing proof of registration. [See United States v. O'Brien, 391 U.S. 367 (1968).] Here, the government’s act of preventing individuals from protesting the war by burning their draft cards was only an incidental burden, because other such expression was open and available to those citizens who were displeased with the war effort. The reason for prohibiting the burning of draft cards was related to the government’s interest in regulating a smooth-functioning registration system, not to suppress a certain type of speech.

Finally, let’s wrap this article up by going over a few key points.

In this article, we’ve learned that under the First Amendment to the U.S. Constitution, Congress is prohibited from making laws that abridge the freedom of speech or the freedom of assembly. Because these freedoms are so embedded in history as almost sacred and fundamental, we’ve discovered that the government’s regulation of these freedoms is not permitted absent some significant government interest or policy that would be served by such a regulation.