Free Speech
Constitutional Law · Lesson 06
Free Speech
這一課問的是：政府之管制是否限制受保護之言論？並能否通過相關審查標準？
Actor
Act
Object
Standard
Consequence
Visual Scene · the picture in your head
Issue. Does the government regulation burden protected speech — and does it survive the applicable scrutiny?
這一課問的是：政府之管制是否限制受保護之言論？並能否通過相關審查標準？
Core Terminology · 7 must-know
Tap a card to flip and reveal the meaning.
content-based
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Restriction based on message — strict scrutiny.
內容性管制：嚴格審查。
content-neutral
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Restriction not based on message — intermediate scrutiny.
內容中性管制：中度審查。
prior restraint
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Government action preventing speech before publication — strongly disfavored.
事先禁言：嚴格不利。
public forum
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Traditional public spaces — strongest protection.
公共場域：最強保護。
limited public forum
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Government-created space for designated speech.
限制公共場域。
unprotected speech
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Categories outside First Amendment (incitement under Brandenburg, true threats, fighting words, obscenity, defamation).
未受保護言論。
commercial speech
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Truthful, non-misleading commercial speech — Central Hudson intermediate scrutiny.
商業言論：中度審查。
Issue · what this lesson is really about
Does the government regulation burden protected speech — and does it survive the applicable scrutiny?
這一課問的是：政府之管制是否限制受保護之言論？並能否通過相關審查標準？
Trigger words & phrases that should flag this issue:
censorpermitforumsigncontent-basedprior restraintincitement
Expression Bank · how lawyers actually say it
Six function → sentence patterns. Use these in essay applications.
| Function | English sentence | 中文 |
|---|---|---|
| Classify regulation | The regulation is content-based / content-neutral. | 管制為內容性 / 中性。 |
| Apply tier | Content-based regulations face strict scrutiny. | 內容性適用嚴格審查。 |
| Identify forum | Public forum / limited / nonpublic affects the scrutiny. | 場域分類影響審查層級。 |
| Apply unprotected | Speech falling within an unprotected category receives no First Amendment shield. | 落入未保護類別之言論無保護。 |
| Apply Brandenburg | Incitement is unprotected only when directed to and likely to produce imminent lawless action. | Brandenburg 煽動：須指向且可能引發即將之違法行為。 |
| State result | The regulation is therefore (un)constitutional. | 本管制因而(不)合憲。 |
Rule Sentence · the workhorse
Content-based regulations of speech face strict scrutiny; content-neutral regulations face intermediate scrutiny; speech falling within unprotected categories (incitement, true threats, fighting words, obscenity, defamation) receives no First Amendment protection.
Sentence Anatomy · 5 roles, 5 colors
Every rule sentence breaks into five visual roles.
Actor 行為人government政府
Act 行為restricting speech限制言論
Object 對象speech (verbal, written, expressive)言論
Standard 法律標準content-based vs content-neutral + forum內容性 + 場域
Consequence 後果regulation upheld or struck管制維持或廢棄
Casebook Snapshot · a real American case
Brandenburg v. Ohio
Holding. Government may not punish advocacy of unlawful action unless the advocacy is (1) directed to inciting or producing imminent lawless action, and (2) likely to incite or produce such action. Brandenburg's KKK speech advocating violence "at some indefinite future time" was constitutionally protected.
Why it matters. Brandenburg's two-prong test is the modern standard. "Imminent" is the key — abstract advocacy at some future date is protected.
Brandenburg 兩要件：指向 + 可能引發即將之違法。
Common Mistakes · what trips students
✗ 「hate speech」自動不受保護。
✓ Hate speech is generally protected unless it qualifies as a true threat or incitement under Brandenburg.
仇恨言論一般受保護，除非為真實威脅或符合 Brandenburg。
✗ 商業言論毫無保護。
✓ Truthful commercial speech receives intermediate-level protection.
真實商業言論受中度保護。
✗ prior restraint 與 punishment after the fact 規則相同。
✓ Prior restraint is more disfavored than post-speech sanctions.
事先禁言更不利。
Mini IRAC · build the Application
Issue. May a state convict a speaker who advocated violence against a religious group at a rally, where the violence advocated was vague as to time and place?
Rule. Under Brandenburg, government may not punish advocacy of unlawful action unless it is directed to and likely to produce imminent lawless action.
Application (model). The speaker advocated violence in vague terms with no specific target time or place. Because Brandenburg shields advocacy unless it is directed to and likely to produce imminent lawless action, the fact that the advocacy was vague as to time and place — and not directed to producing immediate violence — means it does not satisfy Brandenburg's imminence and likelihood prongs.
Pick the right element for each blank:
g1.
g2.
g3.
Conclusion. Therefore, the speech is protected, and conviction is unconstitutional.
MBE Check · multiple choice
A city ordinance prohibits all newsracks within 100 feet of intersections. Which standard applies?
Mini Essay · write the Application paragraph
Facts. A state statute makes it a misdemeanor to display "any sign or banner offensive to any racial or religious group within 500 feet of a place of worship." P, after lawfully posting a controversial sign near a church, is prosecuted under the statute.
Call. Is the statute constitutional?
Practice Drill · tap to build the rule
Drop the chips here in correct order:
Tap chips to add → tap chips in the target to remove: