Trager's The Law of Journalism and Mass Communication (2024) : Chapter 2

First Amendment Rights

Speech, Press, Assembly, Petition gov’t, Exercise/establlishment of religion

Marketplace of Ideas

the freedom needed for ideas to be exchanged, free from government interference, in order for the best and most productive ideas to emerge.

Prior Restraint

Government action that prohibits speech or expression before it can take place. Generally presumed unconstitutional unless it meets a very high standard, such as to prevent direct harm or threats to national security.

Defamation

A false statement presented as a fact that harms someone's reputation. It includes libel (written) and slander (spoken).

Seditious Libel

The publication of written material that criticizes the government and could incite rebellion. Historically punished to suppress dissent, but U.S. courts now protect such speech under the First Amendment unless it poses a clear danger.

Thinkers’ Ideas

James Madison: Free communication among the people is a critical part of self governance, as the people possess the absolute sovereignty.

Rousseau: All people are born free and equal but need the constraints of morality and law to become civilized and nonviolent. Government censorship cannot be justified, as people form a social contract in which they remain sovereign and retain their human rights.

Locke: Inalienable rights - freedom of expression is central to these rights

Fourth Estate

A term referring to the press and news media as an independent watchdog, holding government and other powers accountable. It emphasizes journalism's role in supporting democracy.

Dicta

Statements in a court opinion that are not necessary to the decision and lack binding legal authority but may offer insight into the court's reasoning.

Ad Hoc Balancing

A method of resolving First Amendment cases by weighing the competing interests of facts on both sides of the case. No clear rule dictates the weight of interests in this method of balancing, decisions are instead based on which side has greater constitutional merit.

Categorical Balancing

A method of resolving First Amendment cases by weighing free speech against other interests within specific, predefined categories of speech, such as obscenity or incitement.

Laws of General Application

Laws that apply equally to all individuals or entities, not targeting specific groups or speech. They are subject to constitutional scrutiny if they incidentally restrict First Amendment rights.

Rational Review

A standard of judicial review where courts uphold a law if it is rationally related to a legitimate government interest. It is the most lenient form of scrutiny.

Strict Scrutiny

The Supreme Court’s most rigorous test to determine whether content-based laws are constitutional. Laws are unconstitutional unless they use 1. the least restrictive means 2. to advance a compelling government issues.

Intermediate Scrutiny

Finds laws constitutional if they restrict speech as little as necessary to advance an important government interest unrelated to speech.

O’Brien Test

Courts find a law content neutral and constitutional if the law 1. is unrelated to the suppression of speech, 2. advances an important or substantial government interest and 3. is narrowly tailored to achieve that interest while only incidentally restricting protected speech.

Compelled Speech Doctrine

the government may not force citizens to express ideas with which they disagree. prevents the government from punishing citizens for refusing to “articulate, advocate, or adhere” to what a government might compel citizens to say or do.

Traditional Public Forums

Public places like streets, sidewalks, and parks that have historically been open for free speech and assembly, where First Amendment protections are strongest.

Designated or Limited Public Forums

Spaces intentionally opened by the government for public expression, like meeting rooms or school auditoriums. The government can limit access based on subject matter or audience but must apply restrictions fairly.

Nonpublic Forums

Government-controlled spaces not typically used for public expression, like military bases or airport terminals. Speech restrictions are allowed if they are reasonable and viewpoint-neutral.