Freedom of Expression Key Concepts and Vocabulary for Mid Term

First Amendment

This fundamental right covers freedom of speech, religion, assembly, and the right to petition. This amendment protects people from government retaliation or interference.

Where does our body of law originate from?

The body of law in the United States primarily originates from the English Common Law System. Which was adopted by the 13 colonies and was further developed and altered through the constitution.

What is precedent?

an action or decision that later serves as an example. In this class most of these are going to SCOTUS cases.

Strict Scrutiny

HIGHEST LEVEL OF THREE LEVELS OF SCRUTINY

Strict Scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. Strict Scrutiny is often used by courts when a plaintiff sues the government for discrimination. Strict Scrutiny is the Highest Standard of Review that a court will use to evaluate the constitutionality of governmental discrimination.

Intermediate Scrutiny

ONE OF THREE LEVELS OF SCRUTINY

This is the test courts often use in the field of Constitutional Law to determine a statute’s constitutionality. It is only invoked when a state or the federal government passes a statute that discriminates against, negatively affects, or creates some kind of classification affecting certain protected classes. Was created due to Craig v. Boren: Which applied it to a statute that discriminated on the basis of gender.

Rational Basis Review

ONE OF THREE LEVELS OF SCRUTINY

Is the standard used by courts to evaluate whether a law or government action is constitutional, particularly when it involves economic regulations or social policies that do not affect fundamental rights or suspect classifications. Under this standard the Burden of Proof is on the person who is challenging the law to prove that the law is irrational or unreasonable. Usually these do not go through and the law will generally be upheld barring a clear or legit reason.

Symbolic Speech

includes gestures, clothing, flags, or other forms of expression that convey a particular message. Like wearing a T-Shirt with a political slogan or burning a flag as a protest are both considered to be Symbolic Speech.

Symbolic Speech Test

1. Does the law within the constitutional power of the government?

2. Does the law further a substantial or important government interest?

3. Is the interest related to the suppression of free expression

4. Is this regulation the least restrictive means of free speech?

Hate Speech

IS protected under freedom of speech laws. This is specific language attacking someone based on race, color, religion, ethnicity, or sexual orientation.

What Speech Is Not Protected?

1. The threat of violence. fighting words, and inciting a riot.

2. True threats of violence

3. Harmful Speech like Libel and Slander

4. Obscene or vulgar speech

5. Child P*rnography

6. Threats towards POTUS

What is a Public Forum?

Is a government owned property that is open to the public for expressive activities: Such as speech, assembly, and protesting. The designation of a public forum is significant because it determines the level of First Amendment protections afforded to speech in that designated space

How many types of Public Forums are there?

Traditional, or Quintessential Public Forums

Restricted ability to suppress Time, Place, and Manner restrictions. Must be content neutral and viewpoint-neutral.

Limited Public Forums: Time, Place, and Manner. “Compelling Interest” Can discriminate based on content, but not the viewpoint.

Non-Public Forums: Prisons, Government Offices, Hospitals. Never really been considered Public, but can be used in place of a public forum. Can be regulated - Allowable commercial speech. Not based on disliking a speakers views (Republican or Democrat)

Heckler's Veto

Occurs when the speaker is silenced due to disruptive or hostile audience reactions. This is often used in the context of free speech and the First Amendment. It violates the First Amendment of the speaker and the audience as they have a right to listen without issue.

Incitement

Refers to speech that is meant to provoke or encourage others to engage in illegal or violent actions. The legal standard for was established in the SCOTUS Case Brandenburg v. Ohio Which refined the definition of what constitutes unprotected speech.

Brandenburg Test

This speech has two main criteria that need to be met:

Directed to inciting imminent lawless action: The law must be aimed at provoking immediate illegal action

Likely to produce such action: The speech must likely lead to that immediate illegal action occurring.

Intent is also a key part of this test.

Fighting Words

Is provoking someone to the point of hurting you. Typically personal insults or offensive language aimed at an individual or a specific group. Meant to incite a violent response from the listener.

True Threats

Are statements or actions in which an individual communicates a serious expression of intent to commit violence or unlawful harm against another person or group. These are NOT protected under the first amendment as they can disrupt public safety and lead to real fear or danger.

Obscenity

Based on a the three prong Miller Test

1. Appeals to the Prurient Interest: The average person, applying contemporary community standards, would find that the material in its entirety appeals to a morbid or shameful interest in s*x

2. Patently Offensive: The material depicts or describes sexual conduct in a way that is patently offensive.

3. Lacks Serious Value: The material taken as a whole, lacks serious literary, artistic, political, or scientific value. If it has any redeeming social qualities it is not obscene

Indecency

Generally refers to material that depicts or describes sexual or excretory organs or activities in a way that doesn't meet societies standards for decency. It's not necessarily illegal but it can be restricted, especially broadcasting.

(Think FCC)

Who Decides What is Indecent?

The Federal Communications Commission (FCC). The FCC monitors broadcasts for indecent content and enforces restrictions based on its guidelines. Indecent material is only restricted, not banned, meaning it can be broadcast between a certain decided time.

The FCC has been incredibly important in deciding indecent speech. They have been involved in many supreme court cases.

Why is Political Speech More Important Than All Other Types of Speech?

Political speech is considered the most important type of speech because it is central to democratic governance and the protection of individual freedoms. It allows people to express opinions, criticize the government, advocate for change, and participate in public debate—all essential for a functioning democracy. The First Amendment prioritizes political speech because without it, citizens could be silenced or oppressed by those in power

Which Organization Outlines Political Speech Regulations?

The Federal Election Commission (FEC) Regulates donations, spending, and advertising related to elections. It ensures political campaigns disclose contributions and spending while enforcing limits on campaign contributions to prevent corruption.

Hard / Soft Money

Hard Money refers to donations made directly to a political candidate or campaign, subject to strict federal regulations

Soft Money refers to contributions made to political parties or outside groups ie SuperPACS and are historically much less regulated.

Commercial Speech

Refers to speech that proposed a commercial transaction or is related to the promotion of goods or services. Commercial Speech is arguably the Least important type of free speech.

Refer to Central Hudson Test

Central Hudson Test

This test asks if the speech is lawful, non-misleading, and if the governments regulation directly advances a substantial interest in a way that is no more extensive than necessary.