Absolute privilege — The right of
legislators, judges and government officials to speak without threat of libel
when acting in their official capacities.
Actual malice — In New
York Times Co. v. Sullivan (1964), the Supreme Court defined actual
malice as a state of mind in which a person or publication makes an untrue and
defamatory statement about a person “with knowledge that it was false or with
reckless disregard of whether it was false or not.” In order to recover damages
for libel or defamation, a public official or public figure must be able to show
by clear and convincing evidence that the defendant acted with actual malice.
Appropriation of likeness —
Generally, a person’s right to privacy allows him to determine the use of his
name or likeness, except in some public scenarios. Improper invasion of a
person’s privacy occurs when one uses his likeness for commercial gain or in
such a way that “a person of ordinary sensibilities” would be offended.
Associational rights — These rights,
which forbid the government from preventing people from joining organizations,
are found implicitly in the First Amendment guarantee to speak and assemble
freely. So long as the association or group in question does not present a clear
and present danger, or advocate illegal activity, it is fully protected by the
First Amendment (unless subject to a “time, place and manner” restriction).
However, this right does not always work both ways, as there are certain
situations where the government may force a group to include members.
Bad tendency — The bad-tendency test finds its
roots in English common law, where it stood for the proposition that the
government could restrict speech that would have the tendency to cause or incite
illegal activity. Articulated in 1907 in the Supreme Court case Patterson v. Colorado, the test only
stood for a dozen years. It was overruled when Justice Holmes, speaking for the
majority, implicitly rejected this test with the advent of the “clear and
present danger” test in Schenck
v. United States (1919). This test, while analytically similar, requires
a showing that the speech will cause a real and imminent threat.
Captive audience — The government has the
ability to limit speech that would otherwise be protected if that speech is
being imposed on a captive audience, which occurs when it would be impractical
for the listener to be able to escape that speech. This is often used in cases
of minors. See
cases.
Central Hudson test — The Supreme
Court devised this test in Central
Hudson Gas & Elec. Corp. v. Public Service Commission of New York
(1980) to determine when commercial speech would receive First Amendment
protection. When deciding if the First Amendment should shield commercial
speech, courts must consider whether:
- The expression of commercial speech concerns lawful activity and is not
misleading.
- The asserted government interest is substantial.
- The regulation directly advances the asserted government interest.
- The regulation is no more extensive than necessary to serve that
interest.
Certiorari (writ of certiorari) — Certiorari,
meaning in Latin to “be more fully informed,” is the procedure used by the
Supreme Court and appellate courts to review the cases they hear. After
receiving an appeal, the court decides whether to grant certiorari and review
the lower court’s case. If it grants certiorari, or “cert,” then the higher
court reviews the case. If the court denies cert, then the lower court ruling
stands. In the Supreme Court, the votes of four justices are required to grant
certiorari.
Clear and present danger — In Schenck
v. United States (1919), Justice Oliver Wendell Holmes articulated this
test, which said that the government may suppress speech that presents a clear
and present danger, as long as the government can show that that danger is both
real and imminent.
Compelled speech — As a general rule, the
government cannot force an individual to express himself in a way that he would
not otherwise do. This principle stems from West
Virginia State Board of Education v. Barnette (1943), which held that a
state could not force students to recite the Pledge of Allegiance. However,
complications arise when commercial speech is involved, because companies, not
people, are expressing themselves, and some advertising and other commercial
speech can be regulated.
Content discrimination — A law that
discriminates based on the content of a message — as opposed to the time, place
or manner in which that message is made, or the reactions it incites in people —
is considered presumptively unconstitutional.
Content neutrality — The opposite of
content–based laws, content–neutral regulation of speech means the restrictions
are placed on any speech regardless of what it says. For example, although a law
might be able to regulate whether pamphlets could be distributed in a public
school, it could not discriminate against only Christian or Muslim pamphlets
Such content neutral regulations that interfere with speech are examined under a
balancing test, comparing the state’s interest in prohibiting the activity in
question and the level of interference with the speaker, which is often
determined by looking at available avenues of communication. See
cases.
Copyright — The Constitution’s copyright clause
and the First Amendment foster creativity and freedom of expression. Ideally,
these two parts of the Constitution work hand in hand to ensure greater
artistic, technological and scientific advancement. But oftentimes, particularly
in the age of the Internet, copyright and the First Amendment collide.
The copyright clause: Article I, Section 8, Clause 8 of the Constitution
reads: "To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries."
The First Amendment, the first 45 words of the Bill of Rights, provides that
"Congress shall make no law … abridging the freedom of speech." The question
becomes how to balance these two sometimes-competing principles.
Some inherent degree of tension exists between the First Amendment and
copyright. Copyright allows creators of expressive conduct to control the flow
of certain information and expression, while the First Amendment ensures the
free flow of information and expression.
One purpose of copyright law is to provide protection for the creator of an
expressive work. The main purpose of the First Amendment is to ensure public
access to information. Copyright protection reduces access to some information
by limiting the extent to which it can be copied by others. "By allowing the
removal of certain speech from the marketplace of ideas, however, copyright
appears to fly in the face of the goals of the First Amendment," legal scholar
Stephen Fraser has written. Georgetown law professor Julie Cohen explains that
"intellectual property protection, and particularly copyright protection, is a
form of censorship."
Copyright creates property rights for the creators of certain works. This is
why copyright, along with patent and trademark law, is labeled under the rubric
of intellectual property. If a person copies another's work without permission,
that person has trespassed on the creator's property, or copyrighted expression.
This is called copyright infringement. If a person directly copies another's
expression, that person has committed direct copyright infringement. If a person
or company enables others to commit copyright infringement, they have committed
contributory or vicarious infringement.
Registration of a work with the U.S. Copyright Office is prima facie evidence
of a valid right to a work in question; however, even without registration an
author may own certain rights in his work, as determined by common law. However,
without a valid registration, an author cannot institute an infringement action,
nor can she recover certain remedies, including attorneys’ fees.
Copyright exists to increase knowledge. It does so by providing creators with
an economic incentive to produce work. Copyright protects "original works of
authorship fixed in any tangible medium of expression." It protects books,
artwork, sculptures, paintings, musical compositions and many other forms. The
U.S. Supreme Court has written: "It should not be forgotten that the Framers
intended copyright itself to be an engine of free expression" (Harper &
Row Publishers, Inc. v. Nation Enterprises, 1985).
The theory is that if people could freely copy anyone else's work without
paying for it, there would be no incentive for the creation of new material. Why
take your time to create a product if you will receive no reward?
However, the law also recognizes that if copyright law is too rigid, then
there will be a dramatic reduction in the public's access to information.
Copyright law attempts to resolve this dilemma to a degree by distinguishing
between expression and ideas.See
Cases.
Facial challenge — A challenge that claims
a law is inherently unconstitutional (unconstitutional on its face), as opposed
to a law that is applied in a particular situation unconstitutionally.
Fair use — The U.S. Copyright Act has a fair-use
exemption, allowing a defendant to a copyright-infringement claim to escape
liability on the theory that it is only equitable that he should be able to use
the original work in some manner. Fair-use inquiries are examined case by case
and depend on four factors:
- The purpose and the character of the use.
- The nature of the original copyrighted work.
- The amount of the original work used in the secondary work.
- The economic impact of the use.
False light — A form of invasion of privacy in
which a person is presented in way that leaves a negative and inaccurate
impression about that person. False light is a tort theory under which a
claimant might sue for damage to reputation.
Fighting words — In its leading case on the
subject, Chaplinsky
v. New Hampshire, the U.S. Supreme Court defined fighting words as those
words “which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.” The court later used the terms “epithets” and
“personal abuse” in discussing fighting words. See
cases.
First impression — A court hears a case of
first impression when the issues in the case have not been addressed previously
and whatever the court says on the issues will have value as precedent for other
courts in the future.
Gag order — A court order prohibiting or limiting
communication about a case. Gag orders have been imposed on the press,
attorneys, jurors and others. These orders are presumptively unconstitutional
when applied to the press. Judges have greater ability to impose such orders on
trial participants.
Group libel — Libel aimed at a specific group
rather than an individual, usually on the basis of race, sex, nationality, etc.
However, a plaintiff must be able to show individual harm in a libel action,
which often proves to be difficult when group libel is in question. The smaller
the group, the more likely the courts are to find group libel. The Supreme Court
found group libel to exist in Beauharnais
v. Illinois, a widely criticized case from 1951.
Harmful to minors — States have the
ability to deem certain speech that is protected for adults obscene only with
respect to minors. Many states have passed what are called “harmful-to-minors”
obscenity statutes. The Supreme Court has held that these statutes must be quite
narrow and must not limit adult access to protected speech. Consequently,
translating these statutes to material on the Internet has proven to be rather
complicated, as current technology makes it difficult to discern between adult
and minor viewers.
Hate crime — A criminal act committed out of
hatred for a certain type or types of people.
Heckler’s veto — A heckler’s veto occurs when
government attempts to suppress speech (usually of an inflammatory nature) in
order to avoid an undesirable reaction. Such suppression is generally a
violation of the First Amendment.
Incitement — The act of one person causing
another to consider committing a crime, regardless of whether in fact the crime
was committed. Incitement is the attempt to draw in another person as a
conspirator or an accomplice. In Brandenburg
v. Ohio (1969), the Supreme Court held that, to be a crime, incitement
must go beyond mere advocacy of illegal actions to tending to cause “imminent
lawless action.”
Indecency — “Indecent” speech usually receives
First Amendment protection, except when it is broadcast over the airwaves. In
FCC
v. Pacifica (1978), the Supreme Court held that the Federal
Communications Commission could regulate indecent speech because broadcast media
are both uniquely pervasive and uniquely accessible to children. For regulatory
purposes, the FCC defines indecency as “language or material that, in context,
depicts or describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory activities or
organs” (16 FCCR 7999, 8000). See The
Indecency Battle.
Indirect burden — The standard of review
used in both free-speech and free-exercise cases is the determination of whether
the regulation in question poses a direct or indirect burden upon the right in
question. If a law indeed poses a direct burden on speech or on the free
exercise of religion, it will need to withstand the highest level of scrutiny by
the courts in order to be upheld. A law imposing an indirect burden will be
examined under the rubric of the rational-basis test.
Lemon test — A three-pronged test for
whether a government involvement in religion is constitutional. In the 1971 U.S.
Supreme Court decision Lemon
v. Kurtzman, a case involving state funds for teacher salaries in
private elementary schools, the Supreme Court determined that two state laws
mandating the funding violated the establishment clause. The Court created what
came to be known as the Lemon test, under which:
- “[T]he statute must have a secular legislative purpose.”
- “[I]ts principal or primary effect must be one that neither advances nor
inhibits religion.”
- “[T]he statute must not foster ‘an excessive entanglement with
religion.’”
Limited open forum — Under the Equal Access Act, a limited open forum is created whenever a public secondary school provides an opportunity for one or more “noncurriculum-related student groups” to meet on school premises during noninstructional time. The forum created is said to be “limited” because it is only the school’s own students who can take advantage of the open forum. Outsiders are not granted an independent right of access by the act. See Religious clubs and Clubs.
Miller test — The Miller test is the
list of criteria used to determine whether particular material is obscene. The
Supreme Court held in Miller
v. California (1973) that the material is obscene if:
- The average person, applying contemporary community standards, would find
that the work, taken as a whole, appeals to the prurient interest, which means
arousing sexual desire.
- The work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law.
- The work, taken as a whole, lacks serious literary, artistic, political or
scientific value. Court battles often focus on this third prong of the test.
Must-carry rules — Sections 4 and 5 of the
Cable Television Consumer Protection and Competition Act of 1992 forced cable
operators to carry on their cable systems local commercial and public broadcast
stations. In Turner
Broadcasting System v. FCC (1997), the Supreme Court said these rules
did not violate cable carriers’ First Amendment rights because they were
economic regulations aimed at preserving the viability of the local broadcast
networks and because they were imposed on all cable systems without reference to
the content offered.
Neutral-reporting privilege —
Protects news organizations when they publish statements, even reckless
statements, made by others about a public figure even if the press suspects the
statements are not true. As one federal appeals court wrote in 1977 when
describing the privilege: “We do not believe that the press may be required
under the First Amendment to suppress newsworthy statements merely because it
has serious doubts regarding their truth.” The neutral-reporting privilege
differs from the similar fair-report privilege in that fair report generally
applies only when the allegedly defamatory statements are made directly from a
public record, public meeting or government press release. Neutral reporting
applies to statements outside the context of official government proceedings or
records. Not all jurisdictions recognize the neutral-reporting privilege. The
U.S. Supreme Court has never directly ruled on it.
Overbreadth doctrine — This doctrine
holds that a regulation of expression that curtails protected speech, even if it
also restricts unprotected speech, can be challenged as invalid. In NAACP
v. Alabama (1964), the Supreme Court said that a law or government
regulation “to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.” See
Vagueness. See
cases.
Preferred position — In Murdock
v. Pennsylvania (1943), the Supreme Court, in striking down a law
requiring a license fee for canvassers and solicitors, held that “[f]reedom of
press, freedom of speech, [and] freedom of religion are in a preferred
position.” Thus, when the courts are in a position of balancing multiple
fundamental rights, they often hold First Amendment rights in a “preferred
position.” While this language has been dropped from modern opinions, its notion
has not.
Prior restraint — This violation of the
First Amendment occurs when the government attempts to censor expression before
its publication.
Public figure — One becomes a public figure
by achieving enough fame or notoriety to be considered well known by the public.
One may also be considered a public figure for a limited purpose if he or she is
thrust (voluntarily or by others) into a public controversy or event. In New
York Times v. Sullivan (1964), the Supreme Court held that when suing
for defamation, a public figure has the burden of showing with clear and
convincing evidence that the defendant acted with actual malice.
Public forum — Under the public-forum
doctrine, government officials have less authority to restrict speech in places
that by tradition have been open for free expression. Such an area is called a
public forum. In its 1983 decision Perry
Education Ass’n v. Perry Local Educators Ass’n, the Supreme Court wrote:
“In places which by long tradition or by government fiat have been devoted to
assembly and debate, the rights of the state to limit expressive activity are
sharply circumscribed.”
There are two other types of forums under the public-forum doctrine: the
limited, or designated, public forum and the nonpublic forum. In a limited
public forum, the government designates a certain forum for expressive purposes.
When the government opens up a forum, it is generally subject to the same
free-speech standards as a traditional public forum. This means that
restrictions on speech are subject to the highest form of judicial review, known
as strict scrutiny. However, the Supreme Court has indicated that in creating a
limited public forum, the government can restrict access to certain speakers and
topics. (See Leslie Gielow Jacobs, “The Public Sensibilities Forum,” 95 Nw.
U. L. Rev. 1357, 1370 (2001)).
In a nonpublic forum, the government’s regulations on speech do not have to
meet strict scrutiny. Rather, they must be reasonable and viewpoint-neutral.
The public-forum doctrine applies many times in First Amendment jurisprudence
when the government imposes speech restrictions on government property. See Assembly on private
property.
Qualified immunity — A doctrine that
protects government officials from liability in civil rights actions when they
do not violate clearly established principles of law.
Rational basis — The rational-basis test
allows for a high level of deference to the government; so long as the
government has any legitimate objective and the regulation is reasonably related
to that regulation, it will stand. For example, a law outlawing the drug peyote,
even for religious purposes, only has to pass the rational-basis test. See Employment
Division v. Smith (1990). It is commonly assumed that most regulations
will withstand rational-basis scrutiny. See Strict
scrutiny.
Reckless disregard — In New
York Times Co. v. Sullivan (1964), the Supreme Court defined actual
malice as a state of mind in which a person or publication makes an untrue and
defamatory statement about a person “with knowledge that it was false or with
reckless disregard of whether it was false or not.” In order to recover damages
for libel or defamation, a public official or public figure must be able to show
by clear and convincing evidence that the defendant acted with actual malice.
Released time — Time during which public
schools can choose to release students during the school day to receive private
religious instruction off campus, if parents consent. See Released
time.
Reporters' privilege — Reporters are
protected, on a state-by-state basis, by statutory law or constitution, from
testifying about confidential information or sources at trial.
Reporters often use confidential sources for information that otherwise they
would not be able to obtain. For a variety of reasons, the government (or
others) may want the reporter to reveal her source. In many jurisdictions, but
not all, the courts presume that the reporter has a right not to identify her
confidential sources. Generally, the privilege will apply unless those
trying to get the reporter to divulge her source make a case that:
- Their claim has merit.
- The information sought is necessary or critical to making their case.
- A reasonable effort to acquire the information has not yielded any results.
- The interest of the reporter in keeping the information secret is not
supported by the need to preserve the confidentiality of the
information.
Right of publicity — The right of people,
particularly celebrities, to control how others use their names and images. The
right of publicity exists primarily as a trademark right. There is no right to
use someone’s identity in a commercial context. For example, an advertising
agency cannot use a sound-alike voice in a commercial without the consent of the
celebrity. See Midler v. Young & Rubicam, Inc. (1991).
Secondary effects — This doctrine, which
arose out of adult-business zoning cases, provides that government officials
have greater leeway to regulate adult businesses if they are concerned with the
harmful side effects allegedly associated with these businesses — such as
increased crime and decreased property values. However, especially at the local
level, this doctrine has been applied outside of the adult-business context.
According to many First Amendment advocates, the doctrine thus threatens to
undermine existing First Amendment free-speech jurisprudence.
Sedition — Generally seen as expression with the
intent to incite rebellion against the government, sedition is constitutionally
protected unless it falls outside the “clear and present danger” test.
Shield laws — Shield laws are the codification
in state law of the reporter’s privilege not to be forced to identify his
confidential sources or not to testify as a source himself. Thirty-one states
and the District of Columbia have enacted these types of laws, but each state’s
laws vary.
Son of Sam laws — Son of Sam” laws generally
prohibit a convicted criminal from profiting from the publication or discussion
of his felonies. In 1991, the Supreme Court struck down the first “Son of Sam”
law, which was in New York, (Simon
& Schuster, Inc. v. Members of New York State Crime Victims Bd.),
saying it went too far in impeding First Amendment rights in an effort to
protect victims’ rights. Subsequent “Son of Sam” laws have been struck down as
well.
Spectrum scarcity — Radio and television
can be broadcast only certain bandwidths on the electromagnetic spectrum, which
means that only a limited number of broadcast channels may be available without
interfering with each other. Congress established the Federal Communications
Commission to supervise the use of the spectrum so that this interference would
be minimized or eliminated. Accordingly, the FCC determines how much of the
electromagnetic spectrum is devoted to radio and television, how much space on
the spectrum each station should get, and which stations to license to use the
reserved spots on the spectrum. Some legal scholars think giving the FCC these
powers is unconstitutional because this situation is no different than an
unconstitutional requirement that newspapers must have a government license to
be published. Cable and satellite TV don’t use the spectrum and so are not
affected.
Strict scrutiny — To withstand strict
scrutiny, a law must be in furtherance of a compelling government interest and
go no further than necessary in impeding First Amendment rights. This rigorous
test is only applied when there is a substantial interference with First
Amendment rights.
Time, place and manner — Considerations
that could act as restrictions on what would ordinarily be First
Amendment-protected expression. Such restrictions do not target speech based on
content, and in order to stand up in court, they must be applied in a
content-neutral manner. For example, people have the right to march in protest,
but not with noisy bullhorns at 4 a.m. in a residential neighborhood.
True threat — A real threat to a person’s
safety made by another person. The Supreme Court in Watts
v. United States (1969) said threats to personal safety are not
protected by the Constitution. See
Cases.
Tort liability — A tort is a wrong done to
someone, a civil cause of action for which a standard remedy is monetary damages
or an injunction. Examples of tort claims include defamation, invasion of
privacy and intentional infliction of emotional distress. Liability means that
one owes another for the harm he or she has caused.
Viewpoint discrimination — A
regulation is considered to discriminate on the basis of viewpoint when it
attacks a particular individual’s or group’s message, as opposed to the mode in
which that message is conveyed. Such laws are facially unconstitutional and are
considered an especially egregious form of content discrimination. For example,
a law prohibiting cross-burning in general have been found to be
unconstitutional, whereas a law banning cross-burning with the intent to
intimidate have been found not to be unconstitutional. See Virginia
v. Black (2003).
Vagueness — A characteristic of laws that are
imprecisely worded. A vague law restricting some form of free expression would
be unclear as to what is allowed and what is not. See Overbreadth doctrine.
Legal-research interns Julie Samuels and Michael Roffe of Vanderbilt Law
School, and Greg Groninger of the University of Richmond School of Law,
contributed to this glossary.