MBE Rules · Constitutional Law
1A — content-based vs. content-neutral
The rule
Content-based restrictions on protected speech receive strict scrutiny (Reed v. Town of Gilbert). Content-neutral time-place-manner restrictions in a public forum get intermediate scrutiny: (1) serves significant government interest, (2) narrowly tailored, AND (3) leaves open ample alternative channels.
In plain English
If a law targets the message of speech, it's harder for the government to justify. If it just regulates when, where, or how speech happens without focusing on the message, it's easier to justify.
Worked example
A city bans protests only criticizing the mayor. This is content-based, so it's very hard to justify. If the city limits all protests to certain hours, regardless of message, it's content-neutral and easier to justify.
Memory hook
Content Calls for Scrutiny: Content-based gets strict scrutiny; content-neutral gets intermediate scrutiny. Know the difference!
The trap
Students think: all speech restrictions get strict scrutiny. Wrong, because content-neutral ones only need intermediate scrutiny. The actual test is the type of restriction.
How examiners test it
The MBE loves: city ordinance regulates speech, with unclear if it's content-based or neutral. Trap: assume all get strict scrutiny. Check if it's time-place-manner for intermediate scrutiny.
Drill this rule until it can't fail you.
Vrenberg generates unlimited questions on this exact rule, tracks your mastery of it, and brings it back until it sticks.