A Government Action Approach to First Amendment Analysis

Abstract

Most First Amendment theories focus on the values served by freedom of expression, resulting in First Amendment analysis based on the content of messages, modes of communication or identities of speakers. This article suggests that a more appropriate approach consists of focusing on the actions of government that restrict free expression. This approach is based on the premise that the courts' function is to determine when a particular government action violates the First Amendment, not whether the expression at issue is entitled to constitutional protection. The government action approach requires judicial consideration of three key factors: (1) the role government is playing at the time it engages in regulation of expression; (2) the justification for the government action; and (3) the nature of the restriction.