Holder v. Humanitarian Law Project provide some insights into the proper tiers of scrutiny for First Amendment Cases.
From the majority opinion:
The Government argues that the properstandard of review is therefore the one set out in United States v. O’Brien, 391 U. S. 367 (1968). In that case, the Court rejected a First Amendment challenge to a conviction under a generally applicable prohibition on destroyingdraft cards, even though O’Brien had burned his card inprotest against the draft. See id., at 370, 376, 382. In so doing, we applied what we have since called “intermediate scrutiny,” under which a “content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189 (1997) (citing O’Brien, supra, at 377).
The Government is wrong that the only thing actually at issue in this litigation is conduct, and therefore wrong toargue that O’Brien provides the correct standard of review.5 O’Brien does not provide the applicable standard for reviewing a content-based regulation of speech, see R. A. V. v. St. Paul, 505 U. S. 377, 385–386 (1992); Texas v. Johnson, 491 U. S. 397, 403, 406–407 (1989), and §2339B regulates speech on the basis of its content.
The Government argues that §2339B should nonetheless receive intermediate scrutiny because it generally functions as a regulation of conduct. That argument runsheadlong into a number of our precedents, most prominently Cohen v. California, 403 U. S. 15 (1971). Cohen also involved a generally applicable regulation of conduct,barring breaches of the peace. See id., at 16. But when Cohen was convicted for wearing a jacket bearing anepithet, we did not apply O’Brien. See 403 U. S., at 16, 18. Instead, we recognized that the generally applicable law was directed at Cohen because of what his speech communicated—he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied more rigorous scrutiny and reversed his conviction. See id., at 18–19, 26.
This suit falls into the same category. The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage underthe statute consists of communicating a message. As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.” 491 U. S., at 403 (citation omitted).
From Justice Breyer’s dissenting opinion.
It is not surprising that the majority, in determining theconstitutionality of criminally prohibiting the plaintiffs’proposed activities, would apply, not the kind of interme-diate First Amendment standard that applies to conduct,but “‘a more demanding standard.’” Ante, at 23 (quoting Texas v. Johnson, 491 U. S. 397, 403 (1989)). Indeed, where, as here, a statute applies criminal penalties and at least arguably does so on the basis of content-based dis-tinctions, I should think we would scrutinize the statute and justifications “strictly”—to determine whether the prohibition is justified by a “compelling” need that cannot be “less restrictively” accommodated. See Houston v. Hill, 482 U. S. 451, 459 (1987) (criminal penalties); Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (content-based); Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 118 (1991) (same); Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 540 (1980) (strict scru-tiny); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978) (same).But, even if we assume for argument’s sake that “strictscrutiny” does not apply, no one can deny that we must at the very least “measure the validity of the means adoptedby Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment.” Robel, supra, 268, n. 20 (describing constitutional task where the Court is faced “with a clear conflict between a federal statute enacted in the interests of national securityand an individual’s exercise of his First Amendment rights”). And here I need go no further, for I doubt thatthe statute, as the Government would interpret it, can survive any reasonably applicable First Amendment stan-dard. See, e.g., Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189 (1997) (describing intermediate scru-tiny). Cf. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring) (examining whether a statute worked speech-related harm “out ofproportion to the statute’s salutary effects upon” otherinterests).