First Amendment: Speech and Religion: every key term you need (+ practice quiz)
25 flashcard terms for Constitutional Law Topic 8, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
A law that targets speech because of its subject matter or viewpoint. Such regulation is presumptively invalid and survives only if narrowly tailored to a compelling interest.
Viewpoint discrimination
The most disfavored form of content regulation, singling out a particular position on a subject. It is impermissible even in nonpublic forums and in government subsidy programs that create a limited forum.
Content-neutral time, place and manner rules
Restrictions justified without reference to message must serve a significant government interest, be narrowly tailored without requiring the least restrictive means, and leave ample alternative channels open.
Reed v. Town of Gilbert
Held that a sign code drawing distinctions among ideological, political, and directional signs was content based on its face, requiring strict scrutiny regardless of benign motive.
Prior restraint
Government action barring expression before it occurs, through licensing or injunction. It bears a heavy presumption against validity and requires prompt judicial review and narrow standards.
New York Times v. United States
Refused to enjoin publication of a classified study of Vietnam policy because the government failed to meet the heavy burden justifying a prior restraint.
Brandenburg v. Ohio
Set the modern incitement test, protecting advocacy of law violation unless it is directed to producing imminent lawless action and is likely to produce it.
True threat
A statement a speaker communicates as a serious expression of intent to commit unlawful violence. Recent doctrine requires at least recklessness as to the threatening character of the statement.
Fighting words
Face-to-face personal insults likely to provoke an immediate violent reaction. The category survives in theory but has been narrowed so severely that convictions rarely stand.
Obscenity and the Miller test
Unprotected material judged by whether the average person applying contemporary community standards finds it appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.
Defamation and actual malice
Public officials and public figures may recover for false statements only on clear and convincing proof that the defendant knew the statement was false or acted with reckless disregard for the truth.
New York Times v. Sullivan
Constitutionalized defamation law to protect robust criticism of public officials, imposing the actual malice requirement to avoid chilling debate through fear of liability.
Commercial speech doctrine
Truthful advertising about lawful activity receives intermediate protection: the government interest must be substantial, the regulation must directly advance it, and it must not be more extensive than necessary.
Central Hudson test
The four-part inquiry for commercial speech, beginning with whether the speech concerns lawful activity and is not misleading, since false or misleading advertising may be banned outright.
Public forum doctrine
The framework sorting government property into traditional forums such as streets and parks, designated forums, and nonpublic forums, with the permissible degree of regulation rising as one moves down the list.
Overbreadth doctrine
A speech regulation may be struck on its face when it prohibits a substantial amount of protected expression relative to its legitimate sweep, allowing challenge by parties whose own conduct could be regulated.
Vagueness in speech regulation
A law regulating expression must give fair notice of what it forbids and constrain enforcement discretion, since uncertain standards chill protected speech and invite arbitrary application.
Symbolic conduct and the O'Brien test
Regulation of expressive conduct is sustained if within the government's power, furthering an important interest unrelated to suppressing expression, with an incidental restriction no greater than necessary.
Texas v. Johnson
Held that burning the flag as political protest is protected expression, because the state interest in preserving the flag as a symbol was itself related to suppressing the message.
Tinker v. Des Moines
Protected student armband protest absent evidence of material and substantial disruption, while later decisions permit schools to regulate lewd, school-sponsored, and drug-promoting speech.
Citizens United v. FEC
Held that independent political expenditures by corporations and unions may not be prohibited, treating such spending as core political speech subject to disclosure but not to bans.
Establishment Clause
Bars government establishment of religion. After the 2022 shift, courts assess challenged practices against historical practices and understandings rather than the older purpose and effect inquiry.
Lemon test
The former three-part inquiry asking whether a law had a secular purpose, a primary effect neither advancing nor inhibiting religion, and no excessive entanglement. It has been abandoned in favor of a history and tradition approach.
Free Exercise Clause and neutral laws
Under Employment Division v. Smith, neutral and generally applicable laws may be applied to religious conduct without heightened scrutiny, but laws that are not neutral or not generally applicable face strict scrutiny.
Church of the Lukumi Babalu Aye v. Hialeah
Struck ordinances targeting animal sacrifice, holding that a law gerrymandered to burden a specific religious practice is neither neutral nor generally applicable and cannot survive strict scrutiny.