First Amendment Freedoms
Terms
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- commercial speech
- advertisements and commercials; not very protected
- prior restraint
- censorship imposed on a speech before it published in a newspaper; usually unconstitutional
- public forums
- public places historically associated with the free exercise of expressive activities; streets, side walks, parks; time, place, and manner must be reasonable, cannot be limited because of what is being said
- obscenity
- Miller v California; quality or state of a work that taken as a whole appeals to a prurient interest in sex by depicting sexual conduct in a patently offensive way and that lacks serious literary, artistic, political or scientific value
- free speech tests
- bad tendency test, clear and present danger test, preferred position doctrine
- sunshine laws
- required government agencies to open their meetings to the public and the press
- legal privileges
- granted by the government, may be restricted or subject to conditions
- bill of attainder
- legislative acts inflicting punishment to individuals or a group of individuals without a trial
- civil disobedience
- deliberate refusal to obey a law or comply with the orders of public officials as a means of expressing opposition
- fighting words
- words that by their very nature inflict injury on those to whom they are addressed or incited them to acts of violence; very hard to prove
- gag orders
- court orders preventing lawyers and jurors from commenting on ongoing trials
- ex post facto
- retroactive criminal laws that make an act a crime after it was committed or that increase the sentence of a crime after it was committed
- sedition
- defaming, criticizing, or advocating the overthrow of government; seditious libel is no longer punishable
- civil liberties
- constitutionally protected freedoms of all persons against government restraint: freedoms of conscience, religion, and expression
- time, place, and manner regulations
- test for public assemblies; time- how long, what time; place- may limit assembly to certain streets; manner- what assembly is doing
- limited forums
- available for assembly and speech for limited purposes, times, and speakers, provided the distinctions between the people allowed access and thsoe excluded are not biased; eg: other public property such as city hall, schools
- vouchers
- money government provides to parents to pay their children's tuition in a public or private school of their choice
- nonpublic forums
- open to the public but are not public forums; must use facilities within a normal bound of conduct, may be excluded if assembly uses building for purposes which it was not intended; no right to interfere with programs or try to take over a building; eg: libraries, courthouses, prisons, schools, swimming pools, government offices
- bad tendency test
- forbid speech that corrupts society or that encourages crime; test abandoned because it was too broad
- endorsement test
- forbids governmental practices that a reasonable observer would view as endorsing religion; championed by Sandra Day O'Connor
- libel
- written defamation or false statements of another person
- Lemon v Kurtzman (aka Lemon case)
- 1) law must have a secular legislative purpose, 2) law must neither advance nor inhibit religion, 3) must avoid "excessive government entanglement" with religion
- due process clause
- no person shall be deprived by a STATE of life, liberty, or property without due process of law; Fourteenth Amendment
- preferred position doctrine
- freedom of expression should rarely if ever be limited; the freedom of speech is so essential to democracy that governments should only punish people for what they do not what they say
- selective incorporation
- process that protects freedoms in the Bill of Rights within the scope of the 14th amendment; started by Gitlow v. New York
- new judicial federalism
- the federal government should set minimum not maximum standards on the rights protected for each citizen; advocated by judicial restrainers
- nonprotected speech
- lacks redeeming social value and is not essential to democratic deliberations and self-governance; eg: libel, obscenity, fighting words, commercial speech
- non-preferential test
- Constitution does not prohibit aid given to all religions as long as no religion is favored; favored by conservatives
- civil rights
- constitutional rights of all persons, not just citizens, to the due process and equal protection clauses; right not to be discriminated against by the government because of race, religion, or gender
- tests used for establishment clause
- Lemon test, endorsement test, non-preferential test
- establishment clause
- congress is prohibited form passing laws respecting the establishment of religion; this was meant to prevent government support of religion
- clear and present danger test
- started by Schenck case; government cannot interfere with speech unless the speech presents a clear and present danger that it will lead to evil or illegal acts; to shout "Fire" falsely in a crowded theater
- writ of habeas corpus
- "produce the body," must produce all prisoners in court and explain why they are being held; Hamdan v. Rumsfield
- free exercise clause
- Congress shall make no law prohibiting the free exercise of religion; Santaria Case