High Court Rulings Complicate Government Regulation Of Speech
Two recent Supreme Court decisions concerning the First Amendment affect when the government can regulate speech. Dinsmore's Justin Burns and Brady Wilson wrote about the cases for Law360 Expert Analysis. An excerpt is below and the full PDF is above.
Recent headlines from the U.S. Supreme Court focus on leaks, but City of Austin v. Reagan National Advertisements of Austin and Shurtleff v. City of Boston, two recent First Amendment decisions, are also worth noting. Both decisions affect when the government can regulate speech. Although they rely on similar ideas, the two decisions came out very differently. One thing is clear: When government officials touch on speech, they must tread lightly to be sure their regulations hold water.
Both cases involve the government regulating what private entities are saying. Generally, the government's regulation of speech because of what the high court called "its message, its ideas, its subject matter, or its content" in its 1972 decision in Police Department of Chicago v. Mosley — also known as content-based restrictions — must satisfy strict scrutiny, a standard the government rarely meets.
Such regulation could include restrictions on criticizing wars and political messaging, or they could include restrictions on where signs critical of foreign governments can be displayed near embassies in the District of Columbia.
How government officials must evaluate situations and make decisions within the First Amendment framework, however, remains an area with many unanswered questions. A universal alarm bell should ring whenever the government may restrict a private party's speech — and government officials facing decisions that could interfere with speech should tread carefully, to be sure that their policies are in line with the latest developments in First Amendment jurisprudence.
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