Chapter 2 The First Amendment

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absolutism

Back 1

A theory of freedom of expression holding that the First Amendment prevents all government interference with speaking or publishing. The absolutist position is associated with Justice Black.

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Fourteenth Amendment

Back 2

Amendment to the Constitution making states, in addition to the federal government, liable for violation of rights protected by the Bill of Rights. A state government that violates the Bill of Rights usually also violates a citizen's right of due process guaranteed by the Fourteenth Amendment.

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incorporation

Back 3

A series of cases in which the Supreme Court made state governments liable for violating the Bill of Rights. The Court incorporated the Bill of Rights into the Fourteenth Amendment by holding that state infringements of free speech and other rights violate a citizen's right to due process, guaranteed by the Fourteenth Amendment.

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First Amendment due process

Back 4

First Amendment procedural requirements that the government justify prior restraints and other restrictions and that hearings be held at which restrictions may be contested.

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strict scrutiny

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The judicial requirement that a restriction on protected contents be justified by a compelling government interest and that the regulation not be overboard or vague.

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content regulations

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The regulation of expression based on what is said as opposed to where of when it was said. First Amendment doctrine predisposes courts to consider content regulations unconstitutional.

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viewpoint discrimination

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Unconstitutional government regulation of speech expressing a particular view on a subject.

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vagueness

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The doctrine by which courts determine that laws are unconstitutional because average persons would not know ahead of time whether their expression would violate the law. Vague laws affecting expression violate the First Amendment because the uncertainty they create leads to self-censorship.

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overbreadth

Back 9

A First Amendment doctrine by which courts determine that legislation is unconstitutional because it restricts more expression than necessary.

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bad-tendency test

Back 10

A discredited judicial test halting or punishing speech that presents only a remote danger to a substantial individual or social interest.

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clear-and-present-danger test

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A judicial test that, if applied literally, halts or punishes expression only where there is objective evidence of an imminent, substantial danger to individual or social interests. Sometimes the test has been used to halt speech that presents no clear, imminent danger,

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ad hoc balancing

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A judicial weighing, case by case, of reasons for and against publishing to determine whether expression may be halted or punished. Ad hoc balancing is flexible but unpredictable because it relies little on previous cases or set standards.

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definitional balancing

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Judicial balancing of interests after freedom of expression is broadly defined to give it extra weight. Definitional balancing provides more predictable protection to freedom of expression than ad hoc balancing.

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actual malice

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(common law) In libel, publication with improper motive such as hatred, spite, vengeance, or ill will. Proof of common-law actual malice has traditionally defeated common-law defenses such as the reporter's privilege to report official proceedings and fair comment and opinion. Proof of common-law actual malice also is often required by persons suing for trade libel or libel per quod.

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fighting words

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Unprotected words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.

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public forum

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Public property dedicated to public discourse, such as a speaker's corner, or public property traditionally open to public debate, such as streets and sidewalks. The law also recognizes a nonpublic forum in public property, such as an army base, dedicated to purposes other than free speech.

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public interest

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The standard the Federal Communications Commission uses to make decisions, according to the Communications Act of 1934.