Legal Terms and Concepts Archives
Absolutists believe that the First Amendment means that state and federal
governments may pass no laws abridging the rights of religion, speech,
press or association.
Accommodationism says the First Amendment promotes a beneficial
relationship between religion and government. It is a way to interpret the
establishment and free exercise clauses.
Actual malice is the legal standard the Supreme Court uses to protect the
media in libel cases in determining when public officials or figures may
win damages in lawsuits.
In First Amendment law, ad hoc balancing involves judging cases on their
unique facts, rejecting formulaic tests to determine whether speech is
protected or not.
Mere advocacy of illegal conduct was not protected by the First Amendment
until Brandenburg v. Ohio (1969), which created the incitement to imminent
lawless action test.
The Supreme Court has protected anonymity under the First Amendment, but it
has balanced this protection against competing interests, notably in the
area of political activity.
In as-applied challenges in First Amendment cases, litigants contend that a
law or regulation is unconstitutional as applied to their expressive
The bad tendency test became the most influential standard used by courts
to determine whether criticism of the government during World War I was
protected by the First Amendment.
The idea that government can exercise “benevolent neutrality” toward
religion attempts to combine the ideas of neutrality and accommodationism
from First Amendment jurisprudence.
The captive audience doctrine protects people in certain places and
circumstances from unwanted speech. It is an exception to the First
The Supreme Court developed the Central Hudson test for determining when
government could limit commercial speech without violating the First
Direct government aid to religious schools has been found to violate the
First Amendment, but under the child benefit theory, government can aid the
Chilling effect is the concept of deterring First Amendment free speech and
association rights through laws or regulations that appear to target
The First Amendment establishment clause protects against government
religion, but there is a strong culture of civil religion, a mix between
nationalism and religion.
In the 20th century, the Supreme Court established the clear and present
danger test as the predominate standard for determining when speech is
protected by the First Amendment.
The coercion test helps the Supreme Court determine whether government
practices violate the First Amendment’s establishment clause. It is most
often used in public school cases.
Commercial speech is a form of protected communication under the First
Amendment, but it does not receive as much free speech protection as forms
of noncommercial speech.
In 1973, the Supreme Court said that community standards must be taken into
account in determining whether something was obscene or could be protected
by the First Amendment.
The compelled speech doctrine sets out that the First Amendment prevents
the government from punishing a person for refusing to articulate or adhere
to its messages.
A government regulation that impairs First Amendment rights must meet a
higher standard of need — defined as a “compelling government interest” —
to be considered constitutional.
Civil contempt of court can be fixed by obeying court orders. Criminal
contempt involves violating the dignity of the court and is more likely to
raise First Amendment issues.
A content-based law discriminates against speech based on the substance of
what is communicated. In contrast, a content-neutral law applies without
regard to its substance.
In First Amendment free speech cases, laws that are content neutral apply
to all expression without regard to any particular message or substance.
Corporate speech refers to the rights of corporations to advertise their
products and to speak to matters of public concern, including by spending
money in elections.
The counterspeech doctrine, first articulated by Louis Brandeis in First
Amendment jurisprudence in 1927, posits that the remedy for false speech is
more speech that is true.
In the United States, courts have based decisions regarding slanderous or
libelous statements on the First Amendment rights of free speech and
freedom of the press.
Critical race theory scholars have advocated for hate speech laws and have
said there is no value to protecting such speech under the First Amendment.
Defamation lawsuits can have a chilling effect on free speech. The Supreme
Court first applied First Amendment protection from state libel laws in
1964 in New York Times v. Sullivan, establishing an actual malice standard
that had to be met by public officials.
Courts use the endorsement test to determine whether the government
impermissibly endorses or disapproves of religion in violation of the First
Though not explicitly stated in the First Amendment, the establishment
clause is often interpreted to mean that the Constitution requires the
separation of church and state.
Exacting scrutiny is a form of close judicial review used by the U.S.
Supreme Court to evaluate restrictions on speech in campaign finance,
election law and compelled disclosures. It appears to be a form of review
somewhere between strict scrutiny and intermediate scrutiny.
Express advocacy is the use of words like “vote for” in political
communications. It’s protected by the First Amendment, but the spending of
money on such advocacy may be limited.
First Amendment facial challenge contends that a law is unconstitutional as
written (on its face). Such challenges may assert that a law is overbroad
The fair report privilege is a state-law defense to defamation claims used
by journalists, although the level of protection may vary by state. Under
the privilege, a journalist is insulated from a defamation claim when he or
she publishes a defamatory comment that was part of official affairs of the
Fair use allows copyrighted works to be used in ways that would infringe on
the copyright. Fair use is a way of preventing copyright from violating of
the First Amendment.
False light invasion of privacy, portraying an individual unflatteringly in
words or pictures as someone that person is not, is not protected by the
Because the First Amendment is designed to further the truth, it may not
protect individuals who engage in libel. Generally, the government does not
stand as the definer of truth.
Feminist theory, which argues that women should enjoy the same rights as
men, can challenge First Amendment doctrine by emphasizing equality over
The fighting words doctrine, an exception to First Amendment-protected
speech, lets government limit speech when it is likely to incite immediate
retaliation by those who hear it.
The First Amendment guarantees “the right of the people peaceably to assemble.” The notion that the act of gathering is pivotal to a functioning democracy relates to the belief that individuals espousing ideas will tend to coalesce around their commonalities. As a result, a correlative right of association — though not enumerated in the First Amendment
The Supreme Court has recognized expressive association and intimate
association under the First Amendment. It has also recognized the right not
The first 16 words of the First Amendment to the U.S. Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” protect the right of every person to practice religion in accordance with conscience and guard against creation of a sectarian state. But the precise meaning of these
Freedom of the press is a Constitutional guarantee contained in the First Amendment, which in turn is part of the Bill of Rights. This freedom protects the right to gather information and report it to others. While at the time of ratification in 1791, the free press clause addressed newspapers, it now applies to all forms
Under the government speech doctrine, the government has its own rights as
speaker that can assert its own messages, immune from challenges of
The gravity of the evil test is a refinement of the clear and present
danger test to determine when First Amendment free speech may be subject to
Since the 1900s, group libel, the defamation of an entire group of people,
has coexisted uneasily with the First Amendment’s emphasis on individual
A heckler’s veto occurs when the government restricts speech because of the
reactions of opponents of the speech. Courts have said hecklers’ vetoes
violate the First Amendment.
The Hicklin Test, an obscenity standard originating in England, was
initially used in America but did not survive constitutional challenges
based on the First Amendment.
Many Supreme Court cases upholding restrictions on subversive speech have
relied on the idea that such speech is forbidden because it incites
violence or illegal actions.
First Amendment rights that are protected from government restriction have
been expanded to include protection from state government as well as
federal government in a process known as incorporation.
When evaluating whether a law infringes upon freedom of speech guaranteed
in the First Amendment, the Supreme Court has sometimes used a “least
restrictive means” test.
The Supreme Court often uses the three-pronged Lemon test when it evaluates
whether a law or governmental activity violates the establishment clause of
the First Amendment.
Libel and slander lawsuits can have a chilling effect on free speech. The
First Amendment rights of free speech and free press often clash with the
interests served by libel laws.
The libel-proof plaintiff doctrine is a concept that insulates a defendant
from defamation liability for statements made about someone who has no good
reputation to protect.
The liberty model of the First Amendment, an alternative to the marketplace
of ideas, emphasizes that speech should be protected because of its value
to the individual.
The marketplace of ideas refers to the belief that the test of the truth or
acceptance of ideas depends on their competition with one another and not
on the opinion of a censor.
The Miller Test is the primary legal test for determining whether
expression constitutes obscenity. It is named after the Supreme Court’s
decision in Miller v. California (1973).
Appropriation is the unauthorized use of a person’s likeness for financial
gain. Although appropriation may involve speech, it is not protected by the
The term “narrowly tailored” refers to laws regulating First Amendment
rights. These must be written to place as few restrictions as possible on
First Amendment liberties.
Natural law refers to laws of morality ascertainable through human reason.
In general, natural law, as a “higher” law, forms the foundation on which
the First Amendment rests.
The concept of natural rights has an important place in American political
thought as reflected in the Declaration of Independence, which used natural
rights to justify revolution.
Neutral reportage protects from libel claims media that accurately and
objectively report newsworthy charges against public figures as part of an
Even though the word neutrality does not appear in the Lemon test, many
have interpreted the test’s commands to mean that government must be
neutral in matters of religion.
Laws restricting speech are subject to strict scrutiny to ensure they are
neutral under the First Amendment. They can not discriminate against speech
the government disfavors.
The Noerr-Pennington doctrine is a judicially created defense against
certain business torts (wrongful acts) for activity that implicates the
First Amendment petition right.
The nonpreferentialist test for interpreting and applying the establishment
clause of the First Amendment comes close to accommodation and “positive
Original intent refers to the notion that the judiciary should interpret
the Constitution (including the First Amendment) in accordance with the
understanding of its framers.
Overbreadth provides that a regulation of speech can sweep too broadly and
prohibit speech protected by the First Amendment as well as non-protected
Perjury is not protected by the First Amendment because it undermines the
ability of courts to obtain truthful testimony and to effectively
The Pickering Connick test refers to a longstanding test in First Amendment
law used by courts to determine whether a public employer violated an
employee’s free-expression rights. The test considers whether a public
employee spoke on matters of public concern, and if the speech outweighed
the interest in a disruptive-free workplace.
The preferred position doctrine creates a hierarchy of rights so that some
freedoms, such as those related to the First Amendment, receive greater
protection than others.
The First Amendment appears to provide a special right for the press,
however the Supreme Court has taken a narrow view of the “press clause” and
held that the press does not have greater rights than those accorded to the
public in general. Some scholars have criticized this viewpoint and argued
that the press role of keeping the public informed calls for a different
Prior restraint allows the government to review the content of printed
materials and prevent their publication. Prior restraint usually violates
the First Amendment.
Privacy generally refers to an individual’s right to seclusion or right to
be free from public interference. Often privacy claims clash with First
The professional speech doctrine is a concept used by lower courts in
recent years to define and often limit the free-speech rights of
professionals when rendering counsel.
To promote First Amendment freedom of speech, libel plaintiffs who are
public figures or officials must show a publisher acted with actual malice
to collect damages.
The public forum doctrine is an analytical tool used in First Amendment
jurisprudence to determine the constitutionality of speech restrictions
implemented on government property.
Under the qualified immunity doctrine, government officials could violate a
person’s First Amendment rights, but not face liability because the law was
not settled or known at the time the official engaged in such conduct.
The reindeer rule applies to an informal First Amendment principle that
arose from controversies over the public display of religious holiday
Released time programs allow schoolchildren to use school hours for
religious instruction. Programs in which students are coerced into
attending violate the First Amendment.
Rhetorical hyperbole is a First Amendment-based doctrine that the Court has
used to provide protection to exaggerated, over-the-top speech in
The right of publicity is a right to legal action, designed to protect the
names and likenesses of celebrities against unauthorized exploitation for
Although recognized in Europe, the right to be forgotten — forcing removal
of embarrassing information about an individual from the Internet — would
violate the First Amendment.
The United States Supreme Court has recognized that the right to receive
information and ideas flows from the First Amendment protection of free
The FCC’s right to respond and reply allowed those criticized on radio and
TV broadcasts time to share their viewpoint on air to foster First
Amendment diversity of viewpoints.
Under the safety valve theory of the First Amendment theory, the ability of
citizens to freely protest about government deters them from undertaking
The scarcity rationale is a legal reasoning that provides for more
government regulation and limited recognition of First Amendment freedoms
The secondary effects doctrine is used when content-based laws are aimed at
the secondary effects of protected expression. The laws can more easily
pass First Amendment scrutiny.
The self-government rationale justifies free speech protections of the
First Amendment by reasoning that self-government depends on a free and
robust democratic dialogue.
All states have provisions in their constitutions that protect individual
rights and in some cases offer greater protection for First Amendment
rights than the U.S. Constitution.
Religious liberty advocates have observed that state constitutions may
provide more separation of church and state than is protected in the First
Strict scrutiny is the highest form of review that courts use to evaluate
the constitutionality of laws. A law that restricts freedom of speech or
religion must achieve a compelling government interest in the least
restrictive way possible.
The substantial disruption test is the standard developed by the Supreme
Court to determine when public school officials may discipline students for
A substantial governmental interest, more than a legitimate interest but
less than a compelling interest, is used in intermediate scrutiny First
The substantial truth doctrine, stemming from the First Amendment, allows
individuals to avoid liability in libel claims if the gist of the statement
was substantially true.
Symbolic speech consists of nonverbal, nonwritten forms of communication.
It is generally protected by the First Amendment unless it causes a
specific, direct threat.
Time, place and manner restrictions are content-neutral limitations imposed
by the government on expressive activity. These restrictions do not usually
violate the First Amendment.
One premise underlying First Amendment jurisprudence is the tolerance
theory — the belief that promoting expressive freedoms will make
individuals more open to ideas.
A true threat is a statement meant to frighten people into believing they
will be seriously harmed by the speaker. True threats are not protected by
the First Amendment.
The unconstitutional conditions doctrine is encountered most often in First
Amendment cases involving government contracts that restrict the
contractor’s freedom to speak.
Courts in the United States give particular scrutiny to vague laws relative
to First Amendment issues because of their possible chilling effect on
Viewpoint discrimination occurs when the government singles out a
particular opinion or perspective on that subject matter for treatment
unlike that given to other viewpoints.
The origin of “wall of separation” came from Thomas Jefferson who used the
phrase to reflect his understanding of the First Amendment’s religion
The Watts factors refers to three factors the Supreme Court identified in
its true-threat decision to distinguish between speech protected by the
First Amendment and a true threat.