Free Speech Analysis Flowchart PDF

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Summary

Free Speech Analysis Flowchart...

Description

Step 1: Does the regulation restrict speech?

NO

MAYBE

Involves symbols or conduct

YES

Involves written or spoken words

1. Does the speaker intend to communicate a message? 2. Is the message easily understood?

If NO to either

Valid Restriction

If YES to BOTH

Step 2: Does the speech being restricted fall into one of the nonspeech categories, i.e. obscenity, advocacy of imminent lawlessness, fighting words, true threats?

YES

NO

OR

Presumptively invalid restrictions

Restrict too much protected speech?

OR

Prior Restraint?

Contentbased restriction?

YES

Is commercial speech being restricted?

YES YES

Statute is invalid because overbroad

Presumptively invalid unless competing right needs protection

NO YES

Presumptively valid restrictions

Neutral time, place and manner restriction OR symbolic speech restriction unrelated to suppression of free speech?

YES

Intermediate Scrutiny

NO

Strict Scrutiny...