98 CHAPTER 4|CIVIL LIBERTIES
STANDARDS FOR PROTECTION
The basis for the continuum of protected speech lies in the content of the speech.
Typically, the Court does not allow content-based regulation of speech (unless it
falls into one of the categories of exceptions we discuss below). For example, in
1972 the Court struck down a local ordinance that banned picketing outside of
schools except for labor picketing.^11 This ordinance was deemed to be content-
based regulation because it favored one form of speech (from labor unions) over
others. Such regulation is subject to the strict scrutiny standard of judicial
review, which means the regulation must be narrowly tailored (that is, the least
restrictive means) to serve a compelling state interest. In most cases this means
that the speech will be protected and the regulation struck down. If a regulation is
“content neutral” and does not favor any given viewpoint, then it is subject to the
less demanding intermediate scrutiny standard. This means that the govern-
ment must only demonstrate a substantial interest, that the interest must be unre-
lated to the content of the speech, and that there are alternative opportunities for
communication.^12POLITICAL SPEECH
Freedom of speech got off to a rocky start when Congress passed the Alien and
Sedition Acts in 1798. The controversial Sedition Act made it a crime to “write,
print, utter or publish... any false, scandalous and malicious writing or writings
against the government of the United States.” Supporters of the acts claimed they
were necessary to strengthen the national government in response to the French
Revolution, but in reality they were an attempt by the governing Federalist Party
to neutralize the opposition Democratic-Republican Party. The outcry against
the laws helped propel Thomas Jeff erson to the presidency in 1800. Jeff erson par-
doned those who had been convicted under the law (mostly newspaper editors),
Congress repealed one of the acts in 1802, and the others were allowed to expire
before the Supreme Court had a chance to rule them unconstitutional.
The next big challenge to freedom of speech came from the states. During the
battles over slavery early in the nineteenth century, northern states outlawed
positive statements about slavery, while southern states prohibited criticism of
slavery. By the end of the nineteenth century such sedition laws prohibiting behav-
ior considered subversive were quite common at the state level, and hundreds of
people had been jailed for criticizing the government and its policies (recall that
the First Amendment did not apply to the states in the nineteenth century).
In the twentieth century World War I prompted the harshest crackdowns on
free speech since the Sedition Act of 1798. The most important case from this
period involved the general secretary of the Socialist Party, Charles Schenk, who
opposed U.S. involvement in the war. He had printed a leafl et urging young men
to resist the draft. Schenk was arrested and appealed all the way to the Supreme
Court, arguing that the First Amendment permitted him to protest the war and
urge others to resist the draft. But the Court sustained his conviction, noting that
free speech is not an absolute right:The most stringent protection of free speech would not protect a man in falsely
shouting fi re in a theatre and causing a panic.... The question in every case
is whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.^13strict scrutiny The highest level
of scrutiny the courts use when
determining whether a law is con-
stitutional. To pass this test, the law
or policy must be shown to serve
a “compelling state interest” or
goal, it must be narrowly tailored to
achieve that goal, and it must be the
least restrictive means of achieving
the goal.
intermediate scrutiny The
middle level of scrutiny the courts
use when determining whether a
law is constitutional. To pass this
test, the law or policy must further
an important government interest in
a way that is "substantially related"
to that interest. That is, the law must
use means that are a close fi t to the
government's goal and not sub-
stantially broader than necessary to
accomplish that goal.