Glossary

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:

  1. The expression of commercial speech concerns lawful activity and is not misleading.
  2. The asserted government interest is substantial.
  3. The regulation directly advances the asserted government interest.
  4. 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:

  1. The purpose and the character of the use.
  2. The nature of the original copyrighted work.
  3. The amount of the original work used in the secondary work.
  4. The economic impact of the use.

False light — A form of invasion of privacy in which a person is presented in a 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:

  1. “[T]he statute must have a secular legislative purpose.”
  2. “[I]ts principal or primary effect must be one that neither advances nor inhibits religion.”
  3. “[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:

  1. 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.
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  3. 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.

Profanity — See “Profanity and the First Amendment.

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 U.S. 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 at least two other types of forums under the public-forum doctrine: the limited, or designated, public forum and the nonpublic forum. In a designated 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. Many lower courts use the term “limited public forum” quite differently. Many courts view the limited public forum as a subset of the designated public forum and hold that such restrictions must only be reasonable and viewpoint neutral. Suffice it to say, there is substantial confusion in the lower courts over the terms “limited public forum” and “designated public forum.” (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:

  1. Their claim has merit.
  2. The information sought is necessary or critical to making their case.
  3. A reasonable effort to acquire the information has not yielded any results.
  4. 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.