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.
Legal Terms and Concepts
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.
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.
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.
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.
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.
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
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 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
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.
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 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 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
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.
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 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.
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.
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.
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.
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.
The unconstitutional conditions doctrine is encountered most often in First
Amendment cases involving government contracts that restrict the
contractor’s freedom to speak.