This FAQ is informational, not legal advice.
The following FAQs address issues commonly encountered in First Amendment and constitutional matters, including higher-education speech disputes, regulatory limits on expressive businesses, and restrictions affecting digital publishers and platforms. Outcomes depend on facts, procedural posture, and jurisdiction.
Campus Speech & Academic Freedom
Do public and private universities have the same First Amendment obligations?
Professors in public universities have greater First Amendment rights than teachers in public secondary schools. And professors in public universities have significant First Amendment rights. In contrast, the First Amendment does not protect the speech of professors in private colleges, though even they may have speech rights conferred by contract or state law.
Professors in public universities are often sanctioned for speech they make which does not meet the approval of the universities and is punished under Title IX proceedings or University Rules prohibiting various forms of harassment or discrimination. However, such rules, and even some provisions of Title IX itself, may violate a professor’s First Amendment rights. We specialize in defending professors against complaints asserting violation of those types of rules. Early evaluation focuses on the institution’s status, the policy invoked, and the decision-making process.
What is on-campus “compelled speech,” including disputes about pronoun-use policies?
Compelled-speech issues can arise when an institution requires a person to use or affirm particular language (for example requested pronouns) as a condition of employment, participation, or access. These matters are fact-specific and often turn on the precise policy language, the focus on particular groups of individuals, how it is enforced, and whether the process chills lawful expression.
As a professor, or student, what should I do if I am facing an investigation or discipline tied to speech or expressive conduct?
Treat the early stages as outcome-determinative. Identify the policy provisions being cited, preserve notices and communications, and clarify who the decision-maker is. In many cases, the record created during the investigation will drive both the practical outcome and any later legal options.
Can a university restrict speech in the name of prevention of “harassment” or promoting campus harmony?
Universities may regulate conduct and enforce neutral rules, but restrictions that punish protected viewpoints or sweep too broadly can create significant legal risk. Analysis typically focuses on the scope of the policy, whether it is applied evenhandedly, and whether it functions in practice as a tool to suppress disfavored expression.
Public Regulation of Expressive Businesses, including Permitting & Enforcement
When do zoning, licensing, or permitting restrictions on expressive businesses potentially run afoul of the First Amendment?
Government controls on expression often operate through enforcement of permitting, zoning and licensing requirements. Restrictions that operate as a gatekeeping mechanism, grant excessive discretion, or target content or viewpoint always raise constitutional concerns. The facts and the local ordinance matter. Regulations and zoning requirements that substantially impact the ability of an expressive business to exist should be carefully scrutinized and often will be found to violate the First Amendment.
What is “prior restraint,” and how can permitting delays function as a speech restriction?
A prior restraint is a system that requires government approval before speech occurs, often through permits or licensing. Even where a permit is theoretically available, delays, vague standards, or discretionary denials can function as a practical (and unconstitutional) barrier to protected expression.
What should a business do after a permit denial, conditional-use restriction, or enforcement action (including unreasonable delays) that targets expressive conduct?
Move quickly to preserve the record. Obtain copies of all government rulings and communications. Confirm the stated basis for the decision, gather the administrative file, and document any inconsistent or selective enforcement. Early strategy often focuses on both practical resolution and protecting legal options if the restriction escalates.
Digital Publishing & Platform Restrictions
Do online platforms have First Amendment rights when the government pressures or compels content moderation?
Online publishers and platforms may have significant constitutional interests where government officials attempt to coerce, direct, or penalize editorial, moderation, or curation choices. The analysis is often fact-driven and turns on the form of government involvement, the communications record, and the nature of the alleged pressure or mandate.
What legal issues arise with age-gating, ID-verification mandates, or restrictions framed as child-protection measures?
Regulations aimed at “harmful matter” or age-restricted content can raise constitutional issues depending on how they are drafted and enforced, including whether they are overbroad, vague, or impose undue burdens on lawful speech. These disputes require careful analysis of the statute’s definitions, scope, and compliance mechanics.
What is the difference between obscenity, sexually explicit material, and “harmful matter” as applied to minors?
These categories are not interchangeable. Laws may treat obscenity differently from lawful adult content, and broader definitions of “harmful matter” typically focus only on minors. How a law defines the category at issue can determine both legal exposure and the available constitutional arguments to challenge them. Government may never create a system that restricts adults to material solely because it is deemed unfit for minors.
Defamation, Accountability & Early Motions
How do defamation disputes intersect with First Amendment protections?
Defamation claims frequently sit at the intersection of speech rights and reputational harm. Early evaluation focuses on what was said, the context, any applicable privileges, and the procedural tools that can narrow or dispose of claims before costly discovery. Different standards apply to different people based upon whether they the subject of the asserted defamation is considered a public or private person.
When should I consider an Anti-SLAPP motion? (California)
In California (and many other states), an Anti-SLAPP motion may be a strong early option when a lawsuit is filed against you targeting your protected speech or petitioning activity and the plaintiff cannot show a probability of prevailing. The purpose of Anti-SLAPP is to prevent the use of litigation to attempt to intimidate and interfere with speech. Anti-SLAPP is highly dependent on the pleadings and evidence available at the outset, so it is often evaluated immediately.