This Article is designed to serve as a First Amendment “compass,” explaining the Speech Clause while offering a systematic method for analyzing any claim asserted under it. The need for this Article stems from the fact that First Amendment law is more than ever a labyrinth. For students, lawyers, and judges alike, it is difficult even to identify--much less to distinguish and apply-- the various strands of applicable precedent. This is because the Supreme Court has developed a dense mass of overlapping doctrines: drawing distinctions between content-based1 and content-neutral restrictions; drawing further distinctions between fully-protected and “low-level” categories of expression; creating separate bodies of precedent (overbreadth, vagueness and prior restraint) that focus on impermissible methods of regulation; requiring particular solicitude for controversial speakers (the “hostile audience” cases); and creating special rules for special settings (the public forum doctrine8 and the discrete lines of precedent governing students, soldiers, prisoners, and public employees). This Article sorts, identifies, and explains each of the foregoing lines of precedent, while furnishing a framework that may be used in analyzing any government restriction on speech. The analytical framework is comprised of five questions that are designed to serve as an issue-spotting checklist. After outlining this five-step inquiry in Part II, the Article follows the same five-step path in Part III, offering a detailed explication of the current law governing free expression.
A First Amendment Compass: Navigating the Speech Clause with a Five-Step Analytical FrameworkSouthwestern University Law Review
Citation InformationKevin F. O'Neill, A First Amendment Compass: Navigating the Speech Clause with a Five-Step Analytical Framework 29 Southwestern University Law Review 223 (2000)