First Amendment Practice Flashcards

Flashcards covering First Amendment principles, standards for speech restrictions, and key legal definitions from the lecture notes.

State Action

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

Incorporation

The doctrine under the Due Process Clause of the 14th Amendment that makes most of the Bill of Rights apply to the states as well as the federal government.

Strict Scrutiny

The standard applied to content-based restrictions requiring a compelling state interest and narrow tailoring to that interest with no other options.

Content-Based Restriction

A government regulation of speech that targets what is being said.

Brandenburg Standard

Rule excluding speech from 1st Amendment protection where there is a (1) call to imminent danger/lawless action and (2) high risk of nonspeculative, imminent harm.

Prior Restraint

An executive or judicial order prohibiting a communication before it has occurred.

Fighting Words

Unprotected speech that is face-to-face, would provoke a reasonable person, and has low social value.

Low Value Speech

Classes of speech, such as lewd, obscene, profane, or libelous words, whose benefit is outweighed by social interest in order and morality.

Actual Malice

The legal standard for public officials in defamation cases where the speaker false identifies facts with knowledge of their falsity or reckless disregard for the truth.

Chilling Effect

The phenomenon where fear of legal penalties or expensive civil lawsuits leads to self-censorship and handicaps free expression.

Miller Test

A three-part test for obscenity: (1) appeals to prurient interest, (2) depicts sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value.

Prurient Interest

An element of obscenity defined by contemporary community standards that encompasses both arousal and disgust.

Content-Neutral Restrictions

Regulations based on 'time, place, and manner' that are not focused on the message or content of the speech.

Intermediate Scrutiny

The standard applied to content-neutral restrictions requiring a substantial government interest and narrow tailoring, though not necessarily the least restrictive alternative.

Public Forum

Government property traditionally open to the public for general purposes and speech, such as parks and sidewalks.

Nonpublic Forum

Government property reserved for particular governmental uses where the government has wide latitude to regulate activities, such as military bases or airports.

Viewpoint Neutral

A requirement for restrictions in nonpublic forums stating the regulation must apply to everyone for all purposes regardless of the specific message.

True Threats

Statements where the speaker intended to threaten and a reasonable person would perceive it as a threat, such as in Counterman v. Colorado.

Defamation

Speech that tends to reduce a person's reputation; plaintiffs must prove the speech was defamatory and, if a public figure, satisfy actual malice.

Facially Neutral

A status indicating a statute is not content-based on its face because the government does not need to look at content to understand if the rule is violated.

Underinclusive

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

Overinclusive

A flaw in a regulation where it restricts too much protected speech beyond what is necessary to serve the government interest.

Marketplace of Ideas

An argument for free speech suggesting that open expression allows the best ideas to prevail through public discourse.

Hostile Audience

A situation where a speaker is restricted because an angry crowd gathered and the threat of violence reached a point where the government acted to suppress the speaker.

Adequate Alternatives

A requirement for content-neutral restrictions stating that speakers must have other sufficient means to communicate their message.