1st Amendment Free Speech Practice Flashcards

A set of 40 vocabulary-style flashcards covering the fundamental principles, standards, and case law of 1st Amendment Free Speech as presented in the lecture notes.

State Action

The principle that plaintiffs can only challenge government action under the 1st Amendment.

Incorporation

The policy where the Due Process Clause of the 14th Amendment makes most of the Bill of Rights applicable to the states as well as the federal government.

Content-Based Restrictions

Regulations based on what is being said, which must generally meet the strict scrutiny standard.

Strict Scrutiny

A high legal standard requiring the government to prove a compelling state interest and that the law is narrowly tailored with no other options.

Content-Neutral Restrictions

Regulations based on time, place, and manner rather than the substance of the speech, often subject to intermediate scrutiny.

Incitement

Speech excluded from 1st Amendment protection when it calls for imminent lawless action and poses a high risk of non-speculative, imminent harm.

Brandenburg Standard

Rule requiring that for speech to be unprotected incitement, it must be a specific call to imminent danger (including a date and target) with a high risk of severe harm.

Fighting Words

Words that are face-to-face, would provoke a reasonable person to violence, and lack significant social value.

Prior Restraint

An executive or judicial order that prohibits a communication before it has actually occurred.

Marketplace of Ideas

An argument for freedom of speech suggesting that the open exchange of information allows the best ideas to prevail.

Low Value Speech

Categories of speech, such as obscenity or fighting words, that are considered essential parts of no exposition of ideas and whose benefit is outweighed by social interest in order.

Chaplinsky Standard

A historical rule identifying unprotected classes of speech including lewd, obscene, profane, libelous, and insulting or fighting words.

National Security Interest

A compelling government interest that may allow for the restriction of speech advocating violent means to effect political change if dangers to the State are involved.

Speculative Harm

A low level of evidence for harm (using words like "could" or "might") that is generally insufficient to justify prior restraint.

Direct Harm

The requirement that government must prove publication will inevitably and immediately cause substantial harm to justify suppressing speech.

Defamation

Speech that tends to reduce the reputation of an individual; also known as libel when written.

Actual Malice

The standard public officials must prove in libel cases: that the speaker knew the statement was false or recklessly disregarded whether it was false.

Chilling Effect

The phenomenon where a threat of expensive civil lawsuits or strict rules leads to self-censorship by critics or the press.

True Threat

Speech where the speaker intended to threaten and a reasonable person would think it was a threat, as established in Counterman v. Colorado.

Obscenity

Low-value speech that lacks protection and is defined by contemporary community standards and prurient interest.

Prurient Interest

A component of the Miller test referring to material that appeals to a shameful or morbid interest in sex (arousing and/or disgusting).

Miller Test

A three-part test for obscenity: appeals to prurient interest, describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.

Child Pornography

A category of speech that is never protected by the 1st Amendment, regardless of whether it passes the Miller test.

Intermediate Scrutiny

The standard applied to content-neutral restrictions, requiring a substantial government interest and narrow tailoring.

Substantial Government Interest

A standard requirement for content-neutral regulations, such as controlling noise pollution or promoting safety.

Narrowly Tailored (Content-Neutral)

The requirement that a regulation targets the disruptive method of speech without necessarily being the least restrictive alternative.

Traditional Public Forum

Spaces like sidewalks and parks that have been historically open to the public for general purposes and speech.

Dedicated Public Forum

Places the government has intentionally opened to the public for general purposes or specific types of speech.

Nonpublic Forum (NPF)

Government property reserved for particular uses where the government has wide latitude to regulate speech, provided regulations are viewpoint neutral and reasonable.

Viewpoint Neutral

A requirement for Nonpublic Forums that a regulation must apply to everyone for all purposes regardless of their specific message or perspective.

Reasonable (NPF Standard)

A low-standard test for Nonpublic Forums asking if restricted speech interferes with the specific purpose of the property.

Facially Neutral

A law that does not appear to target specific content on its face, though it may still be deemed content-based if it requires looking at content to determine a violation.

Hostile Audience

A situation where a crowd's reaction to speech becomes violent; rules generally require the government to protect the speaker first.

Political Hyperbole

Exaggerated political statements, such as those in Watts v. United States, that do not constitute a true threat.

Underinclusive

A legal flaw in a regulation where it targets only a small percentage of the perceived problem it aims to solve.

Overinclusive

A flaw in a regulation where it restricts too much protected speech in its attempt to target unprotected speech.

Time, Place, and Manner

A set of content-neutral criteria used to judge the validity of government restrictions on speech.

Public Official

A category of plaintiff (like those in NYT v. Sullivan) who has a higher burden of proof in libel cases because they have voluntarily exposed themselves to public risk.

Depictions of Violence

A category of speech that the Supreme Court has ruled is NOT a historical category of "low value" speech.

Adequate Alternatives

A requirement for content-neutral restrictions ensuring there are other sufficient ways for the speaker to communicate their message.