General Legal Concepts and Theories
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.
In as-applied challenges in First Amendment cases, litigants contend that a
law or regulation is unconstitutional as applied to their expressive
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.
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.
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.
First Amendment facial challenge contends that a law is unconstitutional as
written (on its face). Such challenges may assert that a law is overbroad
Feminist theory, which argues that women should enjoy the same rights as
men, can challenge First Amendment doctrine by emphasizing equality over
The Supreme Court has recognized expressive association and intimate
association under the First Amendment. It has also recognized the right not
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 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.
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.
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.
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.
Privacy generally refers to an individual’s right to seclusion or right to
be free from public interference. Often privacy claims clash with First
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.
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.
A substantial governmental interest, more than a legitimate interest but
less than a compelling interest, is used in intermediate scrutiny First
One premise underlying First Amendment jurisprudence is the tolerance
theory — the belief that promoting expressive freedoms will make
individuals more open to ideas.
The unconstitutional conditions doctrine is encountered most often in First
Amendment cases involving government contracts that restrict the
contractor’s freedom to speak.
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.