First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has granted the government more allowance to control speech in certain contexts where the government is the speaker, or the government otherwise has a valid interest in regulating speech in order to perform certain functions like operating schools or prisons. For example, the government has an interest in educating children free from distractions. In the context of these special government roles, the government may impose some restrictions on expression to achieve its legitimate objectives, but if the regulation goes too far, it will violate the First Amendment.1

This idea of granting deference to the government when it performs certain functions is related to the idea that certain individuals—such as members of the military—stand in a distinct relationship with the government.2 To take another example, government employers have some leeway to control their employees’ words and actions similar to private employers, both because those employees stand in a distinct relationship with the government and because the government has a valid interest in efficiently providing public services.3 The issue of public employee speech is discussed in a subsequent series of essays, but it is similarly premised on the concept of government’s legitimate interests in performing certain functions.4

Footnotes

1

The Court has distinguished content-based regulations—regulations that are imposed because the government disapproves of the content of particular expression—from content-neutral regulations—regulations that serve legitimate governmental interests and do not discriminate based on speech’s content. Compare Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); and Schacht v. United States, 398 U.S. 58 (1970), with Greer v. Spock, 424 U.S. 828 (1976); Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973); and United States v. O’Brien, 391 U.S. 367 (1968). Content-based regulations are subject to strict scrutiny, but content-neutral regulations are subject to lesser scrutiny. See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech.

2

See, e.g., Parker v. Levy, 417 U.S. 733, 758 (1974) ( “While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” ).

3

See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

4

See Amdt1.7.9.1 Loyalty Oaths, Amdt1.7.9.2 Political Activities and Government Employees, Amdt1.7.9.3 Honoraria and Government Employees, and Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech.