Protection of Core Political Speech


Core political speech consists of conduct and words that are intended to directly rally public support for a particular issue, position, or candidate. In one prominent case, the U.S. Supreme Court suggested that core political speech involves any “interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). Discussion of public issues and debate on the qualifications of candidates, the Supreme Court concluded, are forms of political expression integral to the system of government established by the federal Constitution. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Thus, circulating handbooks and petitions, posting signs and placards, and making speeches and orations are all forms of core political speech, so long as they in some way address social issues, political positions, political parties, political candidates, government officials, or governmental activities.

The First Amendment elevates core political speech above all other forms of individual expression by prohibiting laws that regulate it unless the laws are narrowly tailored to serve a compelling state interest. Known as “strict scrutiny” analysis, the application of this analysis by a court usually sounds the death knell for the law that is being challenged. This application is especially true when the core political speech is expressed in traditional public forums, such as streets, sidewalks, parks, and other venues that have been traditionally devoted to public assembly and social debate. Strict scrutiny is also applied to laws that regulate core political speech in “designated public forums,” which are areas created by the government specifically for the purpose of fostering political discussion. For example, state fair grounds may be considered designated public forums under appropriate circumstances. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S.640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981). In nonpublic forums, however, courts apply a lower level of scrutiny, allowing the government to limit core political speech if the limitation is reasonable and not aimed at silencing the speaker’s viewpoint. Examples of nonpublic forums include household mail boxes, military bases, airport terminals, indoor shopping malls, and most private commercial and residential property.