Traditional Public Forum Rule
IF the location is a traditional public forum, THEN the government can (1) impose only (a) content-neutral (b) time, place, and manner limits (c) serving a significant interest,
and
(2) regulate speech more strictly only if it satisfies strict scrutiny—a compelling interest and narrow tailoring.) (Mosley; Schneider; Hague).
Permits and Licensing Rule
IF the government uses permits or fees to regulate public-forum speech, THEN (1) the criteria must be content-neutral and objective (Cox), (2) fees cannot vary by message or anticipated hostility (Forsyth), and (3) no unbridled discretion may be given to officials.
Limited Public Forum Rule
IF the forum is a limited public forum, THEN the government can
(1) restrict access based on speaker identities or subject matters consistent with the forum’s purpose
and
(2) impose reasonable limits so long as it avoids viewpoint discrimination within the permitted categories (Heffron; Rosenberger)
Non-Public Forum Rule
IF the government regulates speech in a nonpublic forum, THEN restrictions must be reasonable in light of the forum’s purpose—including categorical exclusions tied to operational needs (Lehman; Greer; Kokinda), and must remain viewpoint-neutral (Greer).
O’Brien Expressive Conduct Rule
IF the government regulates conduct that incidentally burdens expression, THEN (1) the law must further an important interest unrelated to suppressing expression (O’Brien), and (2) impose no greater incidental burden than essential (O’Brien; Barnes).
Message-Based Symbolic Conduct Rule
IF the government targets expressive conduct because of its communicative impact—and not for any legitimate non-expressive regulatory reason—THEN the regulation is content-based, fails O’Brien’s “unrelated to suppression” requirement, and can be upheld only under strict scrutiny, where such message-targeting laws are presumptively invalid (O’Brien; Texas v. Johnson; Eichman).
Compelled Speech Rule
IF the government compels a person to endorse, display, or produce something with of ideological interest, THEN it impermissibly forces speech in violation of the First Amendment (Barnette; Wooley; 303 Creative).
Expressive Association Rule
IF the government compels a private group to accept members it does not want, THEN the mandate is invalid only if it meaningfully interferes with the group’s expressive message (Dale; Roberts).
Media Access Rule (Print, Broadcast, Cable)
IF the government compels a media outlet to carry or distribute messages in a way that burdens editorial autonomy, THEN the mandate is categorically unconstitutional for print (Tornillo) but may be upheld for broadcast or cable only when the compelled carriage is designed to assist with medium-specific structural problems—
e.g., spectrum scarcity in broadcast (Red Lion) or cable bottleneck power and content-neutral must-carry obligations (Turner).
Tinker School Speech Rule
IF a school restricts student expression, THEN (1) it must show actual or reasonably forecasted material and substantial disruption (Tinker), (2) it may not suppress speech because of discomfort with the viewpoint, and (3) it may not discriminate by content or perspective.
Schneider v. State
Event: Cities banned all handbill distribution on public streets—even peaceful leafleting to willing recipients—claiming it was necessary to prevent litter. Challenge: Schneider argued the bans imposed a blanket prohibition on protected expression in a traditional public forum instead of targeting the actual harm of littering. Holding: The Court struck down the ordinances because banning an entire expressive medium was not narrowly tailored, was not justified by a content-neutral significant interest, and failed TPM requirements since littering could be addressed by less restrictive means.
Ward v. Rock Against Racism
Event (1 sentence)
New York City required performers at the Central Park bandshell to use city-provided sound equipment and a city sound technician to address recurring problems with excessive volume and audience disruption. Rock Against Racism argued this rule violated the First Amendment by giving the city control over the concert’s sound mix and volume, thereby burdening artistic expression and failing narrow tailoring for time–place–manner regulations.
Holding (1 sentence)
The Supreme Court upheld the guideline as a content-neutral, narrowly tailored time, place, and manner regulation because it directly advanced the city’s substantial interests in controlling excessive noise and ensuring adequate amplification and left ample channels for performers to communicate their message.
Police Department of Chicago v. Mosley
Event: Chicago banned all picketing near schools during class except labor picketing, prohibiting Mosley’s peaceful civil rights protest. Challenge: Mosley argued the ordinance unconstitutionally allowed one subject matter while banning all others. Holding: The Court invalidated the law because content-based discrimination in a public forum fails strict scrutiny and Chicago lacked a compelling reason for distinguishing labor from other subjects.
Forsyth County v. Nationalist Movement
Event: A county charged up to $1,000 for demonstration permits based on anticipated crowd hostility, imposing the maximum fee on a controversial group. Challenge: The group argued the fee varied by message and allowed officials to penalize disfavored speech. Holding: The Court struck down the ordinance because fees tied to content or audience reaction are not content-neutral, delegate unbridled discretion, and fail narrow tailoring.
Heffron v. ISKCON
Event (corrected, 1 sentence)
Minnesota State Fair required all sales solicitation activities to occur only from fixed booths, preventing ISKCON from performing its mobile Sankirtan ritual of walking through the fairgrounds to distribute literature and solicit donations.
Holding (corrected, 1 sentence)
The Supreme Court upheld the rule as a valid content-neutral time, place, and manner regulation because it applied evenhandedly to all groups, served the fair’s substantial interest in crowd control, and still allowed ISKCON to proselytize orally while offering literature and solicitation from a rented booth.
Perry Education Association v. PLEA
Event (corrected, 1 sentence)
A collective-bargaining agreement gave the incumbent teachers’ union exclusive access to the school mail system, and the rival union challenged this arrangement as violating the First Amendment and Equal Protection by discriminatorily denying a competing speaker equivalent access to what it claimed was a public forum.
Holding (corrected, 1 sentence)
The Supreme Court upheld the policy because the interschool mail system is a nonpublic forum, the differential access was reasonable and viewpoint-neutral in light of PEA’s statutory role as exclusive bargaining representative, and PLEA retained ample alternative channels for communicating with teachers.
Lehman v. City of Shaker Heights
Event: A city transit system that sold interior advertising space refused to accept political campaign ads while allowing commercial and public-service ads, and a state legislative candidate challenged the categorical exclusion as violating the First Amendment.
Holding (with why + nonpublic-forum rationale): The Court upheld the exclusion because transit advertising space is a nonpublic forum—a commercial, proprietary setting not traditionally open for public discourse—and the blanket ban on political ads was a reasonable, viewpoint-neutral policy tied to legitimate operational interests such as avoiding perceived favoritism and protecting a captive audience from unavoidable political messaging.
Greer v. Spock
Event: Political activists sought to distribute campaign materials and hold meetings on a military base incidentally open to civilians. Challenge: They argued the base’s rules prohibiting political activity violated free speech rights. Holding: The Court upheld the restrictions because a military base is a non-public forum and banning partisan activity is a reasonable, viewpoint-neutral measure to protect discipline and mission integrity.
United States v. O’Brien
Event:
O’Brien burned his Selective Service registration certificate on the courthouse steps to persuade others to oppose the Vietnam War, violating the 1965 amendment to the Universal Military Training and Service Act, which specifically prohibited knowingly destroying draft cards.
Challenge:
He argued the amendment unconstitutionally targeted anti-war protesters and punished expressive conduct.
Holding:
The Court upheld the law under what became the O’Brien test, finding the statute (1) was within Congress’s broad power to raise armies, (2) served an important governmental interest in maintaining an effective and administratively workable draft, (3) furthered that interest in a way unrelated to suppressing expression, and (4) imposed no greater incidental burden on expression than essential. Because O’Brien was punished for the noncommunicative impact—the willful frustration of draft administration—rather than his anti-war message, the statute was constitutional.
City of Erie v. Pap’s A.M.
Events
Erie passed a public-nudity law requiring dancers to wear pasties and a G-string, which the Pennsylvania Supreme Court struck down as burdening expressive nude dancing. Pap’s argued the ordinance was content-based—aimed at suppressing the erotic message—and that the city’s secondary-effects justification was pretextual.
Holding
The Court held the ordinance valid under O’Brien because it targeted the secondary effects of nude dancing venues—crime, public disorder, and neighborhood deterioration—rather than their expressive content, and imposed only a minimal, incidental burden on expression.
Texas v. Johnson
Event
At the 1984 Republican National Convention, Johnson burned a U.S. flag in protest and was convicted under a Texas law banning “offensive” flag mistreatment. He argued the act was protected political expression and that Texas’s interests in preserving the flag’s symbolic value or preventing disorder were content-based or not actually implicated.
Holding
The Supreme Court affirmed the reversal, holding that Johnson’s flag burning was protected expressive conduct and that Texas’s justification—preserving the flag’s symbolic meaning—was content-based and failed “the most exacting scrutiny” because the State may not prohibit expression simply because it is offensive or disagreeable.
Wooley v. Maynard
Event: New Hampshire required motorists to display “Live Free or Die” on license plates and criminalized covering the motto. Challenge: The Maynards argued the law compelled them to display an unwanted ideological message. Holding: The Court invalidated the law because the state cannot force individuals to display ideological messages when less restrictive alternatives exist to achieve legitimate interests.
303 Creative LLC v. Elenis
Colorado’s public-accommodations law would have compelled a web designer to create custom wedding websites celebrating same-sex marriages, forcing her to produce expressive content she did not believe. She therefore sought a pre-enforcement injunction to bar Colorado from applying the law in a way that compelled her speech.
Holding:
Because Smith’s creation of custom wedding websites is “pure speech,” and Colorado’s public-accommodations law would compel her to produce expressive content celebrating marriages she does not endorse, the Court held that applying CADA to require such speech violates the First Amendment; Colorado’s interest in preventing marketplace discrimination, while compelling, cannot justify forcing a speaker to convey a message she rejects.
Roberts v. U.S. Jaycees
Event: Minnesota required the Jaycees to admit women as full members under a public accommodations law. Challenge: The Jaycees argued forced inclusion interfered with their expressive association. Holding: The Court upheld the law because the Jaycees were only minimally expressive and inclusion imposed a slight burden while the state pursued a compelling, viewpoint-neutral interest.
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Rational Basis21
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Intermediate Scrutiny/Sex6
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Strict Scrutiny: Desegregation/Race9
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Facially Neutral and Race8
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Strict Scrutiny: Education and Race4
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Strict Scrutiny: Affirmative Action3
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Strict Scrutiny: Racial Classifications in Prison and Gerrymande, Political Process Restructuring6
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Strict Scrutiny: Alienage and Enumerated Fundamental Rights10
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substantive due process10
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Procedural Due Process6
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subversive conduct + judiciary criticism5
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Threatening and Speech that Creates hostile reaction6
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Speech that discloses5
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low value speech23
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content neutral30
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Establishment15
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Free Exercise7
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state action16
