Constitutional Law: Bill of Rights and Free Speech

Bill of Rights

The first 10 Amendments

Social Compact

or contract between two primary parties - the people and the government

Compact Theory

Treating individual liberties as the product of a negotiated

Natural Rights Theory

a belief that some liberties are vested in individuals by the "law of nature" at birth.

Incorporation Doctrine

A legal theory that maintains that the Bill of Rights should be incorporated through the 14th Amendment due process clause and made applicable to the states.

Total Incorporation

A theory held by some jurists and legal scholars maintaining that the 14th Amendment requires all of the provisions of the Bill of Rights to be incorporated and applied to states.

Select Incorporation Doctrine

A theory held by some jurists and legal scholars that maintains that only select portions of the Bill of Rights, which are deemed to involve "preferred freedoms" or rights "implicit in the concept of ordered liberty," should be incorporated through the Due Process Clause and made applicable to the states.

Inclusion Unis Est Exclusio Alterius

the inclusion of one item is the exclusion of all others

Penumbras

a shadow cast by the 1st, 3rd, 4th, and 14th Amendments that reflected a right to privacy although not explicitly enumerated.

Factions

individual or isolated interests that can destroy or substantially impair government if they are allowed to override the common good.

The marketplace of Ideas

A phrase in some free speech used in some free speech cases to describe the type of environment the First Amendment fosters for individuals to sell, purchase, and evaluate different ideas through speech.

Clear and Present Danger Test

A theory adopted by the Supreme Court in the early twentieth century to interpret and apply the Free Speech Clause of the First Amendment.

Bad Tendency Test

Another test used by the court to interpret and apply the Free Speech Clause, which allows the government to predetermine and ban speech that may tend to bring harm.

Probability Test

A third approach to the free speech clause adopted by some members of the court in the mid-twentieth century.

Brandenburg Test

The current standard used by the court in many free-speech cases.

Symbolic Speech

Nonverbal communication that is akin to pure speech, including symbols - flags, armbands, or other tangible items.

Vagueness Doctrine

A constitutional theory of due process that maintains that the government cannot impose legal standards that the average person cannot or is not likely to understand.

Overbreadth Doctrine

A constitutional theory of due process that generally provides that the government cannot regulate or prohibit more speech than is necessary to address the identified harm.

Ban on Speech

A governmental policy barring a particular form of expression in any manner.

Time, Place, and Manner Regulation

A government restriction on speech that restricts speech but allows the expression in certain given contexts.

Strict Scrutiny Test

A legal standard requiring the government to prove that its policy is necessary to promote a compelling governmental interest. This test imposes the strictest burden upon the government in its attempt to regulate speech.

Public Forums

Properties historically associated with the exercise of First Amendment rights, including public sidewalks, parks, and cartilages outside courthouses and statehouses.

Nonpublic Forums

Places that are not historically associated with the exercise of First Amendment rights. Such locations may include military bases, jails, and certain interior portions of public buildings.

Content Neutrality

Also known as subject matter neutrality, this term means that the government, in attempting to regulate speech, is not discriminating against speech based on its content or subject matter.

Viewpoint Neutrality

A term used to require the government not to favor one side or another within a given subject matter of speech.

Obscenity

A form of unprotected sexual expression, when viewed in its entirety appeals to a prurient interest in sex; portrays sexual conduct in a patently offensive way.

Miller Test

A standard used to judge whether a material is obscenity.

Pornography

Materials that depict sexual expression, which may or may not meet the Miller standards of obscenity.

Vulgarity

Expression, which is sometimes sexual, that is regarded as highly crude and offensive.

Profanity

Words that often include slang references to sexual activities that are viewed as highly offensive and impolite but may still be afforded constitutional protection, as long as they do not fall into another category of unprotected speech, such as fighting words.

Child Pornography

Materials that depict actual children engaged in sexual conduct.

Fighting Words

A category of unprotected speech that 'by their very utterance inflicted injury or tend to incite an immediate breach of peace.'

Threatening or Harassing

Expression that constitutes an intentional threat or harassment toward another person, thereby causing or threatening to cause emotional and/or psychological harm to the person targeted by the speech.

Offensive Speech

Expression that is likely to cause the sensibilities of others to be offended.

Hate Speech

Expression that is directly aimed at insulting, degrading, or intimidating a particular class of individuals, often based on race, sex, religion, or ethnicity.

Defamation

A form of unprotected speech that involves a false statement that causes injury to another.

Slander

A form of defamation that involves published verbal communications that are false and cause injury.

Libel

A form of defamation that involves published written communications that are false and cause injury.

Public figure

A person with particular notoriety in the community, including, but not limited to public officials.

Malice

A legal standard in defamation cases involving public figures requiring the speech to be made with knowledge of the statement's falsity or reckless disregard for its falsity.

Commercial Speech

Expression offered to promote the sale of a commodity or service.

Central Hudson Test

The speech concerns a lawful activity and is truthful and not misleading; there is a substantial governmental interest in regulating speech; the government regulation directly advances its substantial interest; there is a direct fit between the government's regulation and its claimed interest.

Campaign Finance Reform Laws

Legislation that seeks to change the way campaigns are run and funded, often challenged as unconstitutional restrictions on political speech.

Federal Election Campaign Act

The law included measures limiting the amount of money that could be donated and spent during federal campaigns.

Prior Restraint

An attempt by the government to prevent or restrain expression, including press publication, before it is uttered.

Texas v. Johnson

Burning the flag is protected under the First Amendment.

Schenck v. United States

The Court held the Espionage Act did not violate the 1st amendment.

Brandenburg v. Ohio

The Courts' per curiam opinion held that the Ohio law violated Brandenburg's right to free speech.

Republican Party of Minnesota v. White

The announce clause violates the First Amendment.

Ashcroft v. Free Speech Coalition

CPPA cannot be prohibited by the obscenity definition - No support in the fiber.

Elonis v. United States

Threats require proof of subjective intent to threaten or objective is sufficient - subjective not required.

United States v. Alvarez

Yes. The stolen act does violate the free speech clause of the 1st amendment.

Citizens United, Appellant v. Federal Election Commission

Corporation rights - are given under the First Amendment.

Boy Scouts of America v. Dale

New Jersey public accommodation law violates the First Amendment right of excessive association to bar homosexuals from serving as troop leaders.

Establishment Clause

The first provision of the 1st amendment, which provides that 'Congress shall make no law respecting an establishment of religion.'

Free Exercise Clause

The second provision of the First Amendment which provides that 'Congress shall make no law...prohibiting the free exercise (of religion) thereof.'

Accommodationist Approach

An interpretation of the religious clauses that maintains that it is appropriate for the government to accommodate or otherwise assist religious interests or organizations.

Separationist Approach

A view of the religious clauses that generally asserts that government should remain strictly separate or removed from religious activity.

Lemon Test

Legal Standard developed by the court to evaluate establishment clause cases: No religious purpose, Its primary effect must neither advance nor inhibit religion, It must not foster an excessive entanglement with religion and government.

Endorsement Test

Another legal standard used to assess the Establishment Clause issues. Under this standard, the Court essentially collapses the first two questions of lemon tests.

Coercion Test

A third legal standard used to evaluate Establishment Clause cases. Is the government acting in a manner that may have a coercive effect on individuals to support or participate in a particular religion?

Compelling Government Interest test

Religious freedom is a fundamental right with which the government cannot interfere without a substantial or compelling government interest.

Neutrality Test

An approach to free exercise case adopted in Employment Division v. Smith that maintains that governmental policies that are neutral in form and generally applied will be deemed constitutional, regardless of their adverse impact on certain religious practices.

Religious Freedom Restoration Act (RFRA)

A law passed by Congress in 1993 that sought to reinstate the strict scrutiny standard for free-exercise cases.

Religious Land Use and Institutionalized Persons Act 2000 (RLUIPA)

Another law passed by Congress that attempted to reinstate the strict scrutiny standard in the Free Exercise Clause.

Lemon v. Kurtzman

You must pass the 3-prong test in order to avoid violating the Establishment Clause.

Newdow v. United States Congress

The Court failed to reach a conclusion.

Perry v. Van Orden

The amendment is not violated by the Ten Commandments.

McCreary County, Kentucky v. ACLU

The Ten Commandments displayed in public schools violate the First Amendment Establishment Clause.

Town of Greece v. Galloway

Prayer at a legislative session does not violate the 1st amendment Establishment clause.

Sherbert v. Verner

The free exercise clause prohibits the government from setting unemployment benefits.

Employment Division v. Smith

A state can deny unemployment benefits to a worker fired for illegal drugs for religious practices.

Hobby Lobby v. Burwell

Corporations can deny health insurance for the use of contraception.