Free Speech

The MBE’s favorite move is making you classify the regulation before you pick a tier. First ask whether the speech falls in an unprotected category; if not, ask whether the law is content-based (targets subject matter or viewpoint → strict scrutiny, Reed v. Town of Gilbert) or content-neutral. The classic trap: a facially neutral law that is really viewpoint discrimination is still content-based and gets strict scrutiny. In a public forum, watch the three-part time/place/manner test and its ample alternative channels prong — answers omitting that prong are wrong. For incitement, demand Brandenburg’s imminent lawless action (directed to and likely to produce it), not mere advocacy.

Don’t confuse this forum analysis with the Establishment Clause’s history-and-tradition inquiry (post-Kennedy v. Bremerton, the Lemon test is gone), or with substantive due process strict scrutiny — same tier name, different doctrine. Another trap: prior restraints and licensing schemes are tested separately from after-the-fact punishment, and a permit scheme needs narrow, objective, definite standards cabining official discretion. Memory hook: content-based = strict, content-neutral or conduct = intermediate.