When deciding whether a regulation or law violates a person's First Amendment right to free speech, courts apply a different level of scrutiny based on whether the law is content-based or content-neutral. If it is a content-neutral law, the courts may uphold the law if it finds that there is a "substantial government interest" in the activity that the law seeks to prohibit. The substantial government interest is less than a "compelling state interest" and more than a "legitimate interest." An example of when the Supreme Court upheld a regulation based on a substantial government interest was in a case involving Community for Creative Non-Violence that challenged a ban on camping in Lafayette Park across from the White House. The group wanted to set up tents to show the plight of the homeless, but the Court ruled that the National Park Service's rule furthered a substantial government interest in protecting parks for the enjoyment of millions of people. In this photo, Mitch Snyder, left, leader of Community for Creative Non-Violence, takes part in a demonstration for the homeless in Washington in 1988.
The substantial governmental interest test is a part of the intermediate scrutiny analysis in First Amendment law. It represents a governmental interest more than a legitimate interest but less than a compelling governmental interest.
In modern constitutional law, there are three standards of review: (1) strict scrutiny; (2) intermediate or heightened scrutiny; and (3) rational basis. Strict scrutiny is the highest level of judicial review. Under it, the government must advance a compelling, or extremely important interest, often advanced in the least-speech restrictive way possible.
Under intermediate scrutiny, government must show a substantial government interest
Intermediate scrutiny means that the government must advance a substantial or important governmental interest in a narrowly tailored way or a way that does not substantially burden more speech than necessary.
Rational basis, the most deferential form of review for the government, means that the government must also have a legitimate interest that is rational and non-arbitrary.
Content-neutral regulations subject to intermediate scrutiny
In First Amendment law, regulations on speech are often analyzed as to whether they are content-based or content-neutral. Content-based regulations are subject to strict scrutiny, while content-neutral regulations are subject to intermediate scrutiny.
The U.S. Supreme Court has different versions of intermediate scrutiny in First Amendment. Three common examples are the general content-neutral test, the O’Brien test for when speech and non-speech are connected together, and the Central-Hudson test for commercial speech regulations.
Under all of these versions of intermediate scrutiny, the government must show that its speech regulation meets a substantial or important governmental interest.
An example of when the U.S. Supreme Court utilized the substantial governmental interest test was its decision in Clark v. Community for Creative Nonviolence (1984). In that decision, the Court upheld a ban on sleeping in public parks in Washington D.C. The Court ruled that the ban on sleeping was a content-neutral regulation on expression that furthered the government’s substantial governmental interest in keeping public parks and property in “an attractive and intact condition.”
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2019.Send Feedback on this article