A Guardrail Against Government Restrictions on Speech: Strict Scrutiny Explained

Strict scrutiny is a high standard of review, or test, that courts use when determining if certain government restrictions on speech or expression violate the First Amendment.

Generally, the First Amendment prevents the government from infringing on our freedoms of religion, speech, press, assembly and petition. But these protections are not absolute. In some cases, the government can pass or enforce laws that directly or indirectly restrict these five freedoms.

But the government’s power in this regard is limited. How limited depends on just how directly the government action affects our First Amendment freedoms. Courts look more closely at, and more forcefully require the government to justify, restrictions that try to control that core aspect of expression: what we say, publish, advocate in favor of or demand from the government.

It’s in those cases involving the most direct restrictions on expression that courts apply the strict scrutiny test.

The same concepts apply when it comes to religion and how people exercise their religious beliefs, but this article focuses primarily on how courts look at restrictions on the other four First Amendment freedoms: speech, press, assembly and petition.

What are the different kinds of government restrictions on First Amendment rights?

There are two main types of restrictions on these four First Amendment rights: content-based and content-neutral.

Content-based restrictions

The most direct type of restriction is known as a “content-based” law. This is where strict scrutiny typically applies.

A content-based restriction is a law or regulation that targets particular messages or beliefs, rather than the method of communication. In other words, it treats different kinds of speech or expression differently, depending on its message.

An example of a content-based law is a provision in a District of Columbia law that prohibited any criticism on printed materials within 500 yards of a foreign embassy but allowed positive messages (Boos v. Barry, 1988).

Sometimes, a law may not appear content-based but in fact is motivated by a desire to suppress a message or belief. This happened in 1972, in the case of a Chicago law that prohibited picketing within 100 feet of a school (Police Dept. of City of Chicago v. Mosley). While the law seemed designed to ensure a quiet learning environment for students, it provided an exception for labor picketing, which meant the government was allowing some messages but not others.

The U.S. Supreme Court ruled both of the above laws unconstitutional, finding the government didn’t demonstrate a strong reason to justify the content-based restrictions.

Content-neutral restrictions

Indirect restrictions on expression are known as “content-neutral” laws. Courts don’t apply strict scrutiny in these cases, instead using a lower standard of review called “intermediate scrutiny.”

Content-neutral restrictions may impact someone’s ability to get their message out but don’t target the message itself. They treat all speakers and messages the same, even though they may impact how someone delivers their preferred message.

An example of a content-neutral law is a separate provision in the District of Columbia law at issue in the Boos case: That provision said no more than three people could protest within 500 feet of a foreign embassy, regardless of their message. The court upheld this provision, as long as the city enforced it only when there was an actual threat to the security or peace of the embassy workers.

How do courts apply strict scrutiny?

Under the strict scrutiny test, courts uphold a content-based restriction on speech or expression only if the government can demonstrate:

1. It has a compelling interest for the restriction.
2. The restriction is narrowly tailored.

Compelling interest

A compelling interest in regulating speech usually involves some harm that the speech would cause to another individual or to the public generally. The government must prove this harm is real, not speculative.

Some examples of compelling interests commonly accepted by courts are:

• Protecting national security
• Reducing political corruption, often through campaign finance laws
• Protecting the right to vote free from intimidation
• Protecting minors from accessing sexual or other harmful content online
• Protecting the right to a fair trial

In its 1971 decision New York Times Co. v. United States, the Supreme Court said the government did not have a compelling interest in preventing The New York Times and The Washington Post from publishing the Pentagon Papers. The government could not show that release of the documents would actually harm national security or threaten human lives; all evidence in that regard was entirely speculative.

Narrowly tailored

Even if it can prove the need to restrict speech, the government must regulate that speech in a way that achieves its goals but allows all other speech or expression to occur — in other words, in the least restrictive means possible. This is described as “narrowly tailoring” the restriction.

For a law to meet this requirement, the government must ensure the restriction doesn’t have any of the following characteristics.

The law must not be viewpoint discriminatory.

Viewpoint discrimination is considered an egregious type of First Amendment violation, as it not only restricts speech but does so by picking sides.

Examples of viewpoint discrimination that the Supreme Court has ruled unconstitutional are:

• A public university preventing a campus publication from receiving student activity funding because it discusses religious issues, while allowing publications on other topics to receive those funds
• A court punishing a group engaged in anti-LGBTQ+ protests outside military funerals but allowing protestors advocating different messages

The law must not be overbroad.

A law is overbroad when it punishes protected speech in addition to unprotected speech or punishes expression in a disproportionate way.

One type of overboard law is a prior restraint. Prior restraints restrict speech before it happens or prevent that speech from happening at all. Prior restraints almost always violate the First Amendment, which generally requires the government to punish unprotected speech or expression after publication and in a way that compensates those who have been harmed by the speech — for example, by awarding damages for defamation.

Examples of restrictions that the Supreme Court found violated the First Amendment due to being overboard include:

• A resolution prohibiting all “First Amendment activities” inside the Los Angeles International Airport central terminal. That restriction would prohibit protected activities such as talking, reading or wearing expressive clothing.
• A county ordinance requiring permits for every protest, with a permit fee of up to $1,000, but allowing that fee to be adjusted based on the organization involved, as well as forcing the organization to pay for all security costs. This law would leave too much discretion to county authorities to prohibit or restrict protected speech and assembly.

The law must not be vague.

A law is considered vague if it’s written in a way that makes it difficult for people to know if their actions — in this case, the exercise of their First Amendment freedoms — violate the law. Vague laws often result in self-censoring to avoid getting in trouble and often create the possibility of unequal enforcement.

Examples of vague laws that the Supreme Court has overturned include:

• A Chicago ordinance prohibiting criminal street gang members from “loitering.” Without more information, a person may not know they are loitering until a police officer tells them to leave.
• A Nevada law prohibiting lawyers from making press statements they knew or reasonably should have known would substantially prejudice a legal proceeding. This law failed to offer any specific guidance about what lawyers can and cannot say to the press, which would chill speech.

Strict scrutiny is a guardrail against First Amendment violations

The strict scrutiny test ensures the government cannot prevent us from exercising our First Amendment freedoms — and certainly prevents the government from picking sides when we exercise each of these freedoms — except in extremely narrow cases where the government can both show a compelling reason to do so and has acted in a way that limits expression in the most limited manner possible.

It is almost perfect in that regard — almost.

Justice Clarence Thomas’ opinion in Free Speech Coalition Inc. v. Paxton (2025) illustrates just how “almost perfect” the strict scrutiny test is in protecting our First Amendment rights. He notes, “In the First Amendment context, we have held only once that a law triggered but satisfied strict scrutiny.”

He identified that case as Holder v. Humanitarian Law Project (2010), in which the Supreme Court upheld a federal statute that prohibits knowingly providing material support to a foreign terrorist organization.

Just that once — in the entire history of the Supreme Court — did a content-based restriction on expression pass the strict scrutiny test: nine years after 9/11, to protect against another terrorist attack.

Kevin Goldberg is a vice president and First Amendment expert at Freedom Forum. He can be reached at [email protected].