Restriction of Speech Generally

This page includes a writing template for analyzing this topic and usage notes to guide its application. In general, the template is designed to serve as a starting point for your analysis. It should be adapted to fit the specific facts of your case and your professor’s preferences.

Writing Template

Issue

I: The issue is whether the government’s regulation of the speech is constitutional.

Analysis

R: When a government action restricts speech generally, the action may be found unconstitutional if it fails to pass the appropriate level of scrutiny. The appropriate level of scrutiny depends on whether the action was content-based.

1. Is the action restricting the content of speech?

R: A law is content-based if it applies to certain speech because of the subject discussed or the idea expressed. Regulation is content-based on its face if the writing itself denotes the subject or idea. However, regulations that are not content-based on their face may still be content-based in application or intent.
A: Here,
C: Therefore, the law is [content-based [on its face/in application or intent]/content-neutral].

2. Is the government action constitutional?

R: If the regulation is content-based, it is subject to strict scrutiny. If the regulation is content neutral, then is subject to intermediate scrutiny.

a. Content-Based Regulation (Strict Scrutiny)

R: Any government regulation of speech that is content-based will only be upheld if it is (1) narrowly tailored to achieve a (2) compelling government interest. A government action is (1) narrowly tailored if it cannot achieve the government’s interest by less restrictive or less discriminatory means. A (2) compelling government interest is one that is necessary to protect critical public policies or goals, such as national security, public health, or fundamental rights. (Because strict scrutiny is intentionally stringent, few government actions satisfy this standard.)

A: Here, [apply rules to facts].

i. In Application or Intent

Further, if the government regulation of speech is only content-based in application or intent (i.e., not content based on its face), it will only be upheld if it is also shown (3) an actual problem results and (4) the regulation of speech is necessary to solve that problem.

A: Here, [apply rule to facts].

b. Content-Neutral Regulation (Intermediate Scrutiny)

R: Any government regulation of speech that is content-neutral will be upheld if the government can demonstrate that (1) it advances important interests unrelated to the suppression of speech and (2a) does not burden substantially more speech than necessary or (2b) is narrowly tailored to further those interests.

A: Here, [apply rule to facts].

Conclusion

C: Therefore, the government’s regulation of the speech is constitutional.

Usage Notes

JurisJotter templates synthesize legal principles into a practical format that supports the development of well-structured, point-rich analyses in a timed exam.

The template features (1) headers identifying the overall issue, analysis, and conclusion. If the analysis begins with an umbrella rule that identifies elements, factors, or steps of the analysis, it will be followed by subheaders that signpost the analysis of each component.

The template also features (2) IRAC labels at the beginning of each paragraph. These headers and labels are included for educational purposes, offering guidance on structuring your analysis. Your usage of the headers is optional but can be helpful to readers. We advise against including the IRAC labels in submitted work.

The templates serve as a general guide for writing and should be adapted to align with (1) your specific factual circumstances and (2) your professor’s preferences, particularly if your professor provides explicit formulations of rules or analyses. For example, you may add or subtract an element or modify its language. Regardless of whether your professor provides explicit formulations, (3) this template will assist you in crafting point-rich analyses.

Please note that these templates are writing aids and not finished products. They are efficiently designed for exam essays to demonstrate conceptual understanding; thus, they are not comprehensive outlines with historical context or dicta.

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