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Freedom of Speech: An Overview

CRS Report – Freedom of Speech: An Overview March 29, 2024 – “The First Amendment to the U.S. Constitution protects “the freedom of speech,” but that protection is not absolute. The Free Speech Clause principally constrains government regulation of private speech. Speech restrictions imposed by private entities, and government limits on its own speech, usually do not implicate the First Amendment. Even when the government is regulating private speech, a court reviewing a First Amendment challenge may decide that the regulation is consistent with the First Amendment if it is supported by a sufficient governmental interest and an appropriately tailored approach. There is no one-size-fits-all test for deciding whether a speech regulation complies with the First Amendment. The analysis requires parsing out the appropriate legal standards from Supreme Court precedent and often involves applying those standards to new contexts and mediums of expression. Accordingly, when a litigant raises a First Amendment claim or defense in court, much of free speech analysis is directed at determining the appropriate legal standards to apply to the challenged law or government action. That analysis often coalesces around common questions, including the following:
• Is the government regulating speech or non-expressive conduct?
• Is the speech at issue protected or unprotected? Commercial or noncommercial?
• Is the speech regulation content based or content neutral?…”

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