Topics: General Legal Concepts and Theories

• Absolutists

  Absolutists believe that the First Amendment means that state and federal governments may pass no laws abridging the rights of religion, speech, press or...

• As-applied Challenges

  In as-applied challenges in First Amendment cases, litigants contend that a law or regulation is unconstitutional as applied to their expressive activities...

• Compelled Speech

  The compelled speech doctrine sets out that the First Amendment prevents the government from punishing a person for refusing to articulate or adhere to its...

• Compelling State Interest

  A government regulation that impairs First Amendment rights must meet a higher standard of need — defined as a "compelling government interest” — to be...

• Critical Race Theory

  Critical race theory scholars have advocated for hate speech laws and have said there is no value to protecting such speech under the First Amendment...

• Exacting scrutiny

  Exacting scrutiny is a form of close judicial review used by the U.S. Supreme Court to evaluate restrictions on speech in campaign finance, election law and...

• Facial Challenges

  First Amendment facial challenge contends that a law is unconstitutional as written (on its face). Such challenges may assert that a law is overbroad or vague...

• Feminist Theory

  Feminist theory, which argues that women should enjoy the same rights as men, can challenge First Amendment doctrine by emphasizing equality over free...

• Freedom of Association

  The Supreme Court has recognized expressive association and intimate association under the First Amendment. It has also recognized the right not to associate...

• Incorporation of the First Amendment

  First Amendment rights that are protected from government restriction have been expanded to include protection from state government as well as federal...

• Least Restrictive Means

  When evaluating whether a law infringes upon freedom of speech guaranteed in the First Amendment, the Supreme Court has sometimes used a "least restrictive...

• Liberty Model

  The liberty model of the First Amendment, an alternative to the marketplace of ideas, emphasizes that speech should be protected because of its value to the...

• Natural Law

  Natural law refers to laws of morality ascertainable through human reason. In general, natural law, as a “higher” law, forms the foundation on which the...

• Natural Rights

  The concept of natural rights has an important place in American political thought as reflected in the Declaration of Independence, which used natural rights to...

• Original Intent

  Original intent refers to the notion that the judiciary should interpret the Constitution (including the First Amendment) in accordance with the understanding...

• Preferred Position Doctrine

  The preferred position doctrine creates a hierarchy of rights so that some freedoms, such as those related to the First Amendment, receive greater protection...

• Privacy

  Privacy generally refers to an individual’s right to seclusion or right to be free from public interference. Often privacy claims clash with First Amendment...

• Right to Be Forgotten

  Although recognized in Europe, the right to be forgotten — forcing removal of embarrassing information about an individual from the Internet — would violate...

• Rights of Assembly and Association
• State Constitutional Provisions on Expressive Rights

  All states have provisions in their constitutions that protect individual rights and in some cases offer greater protection for First Amendment rights than the...

• State Constitutional Provisions on Religion

  Religious liberty advocates have observed that state constitutions may provide more separation of church and state than is protected in the First Amendment...

• Strict Scrutiny

  Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. A law that restricts freedom of speech or religion must...

• Substantial Government Interest

  A substantial governmental interest, more than a legitimate interest but less than a compelling interest, is used in intermediate scrutiny First Amendment cases...

• Tolerance Theory

  One premise underlying First Amendment jurisprudence is the tolerance theory — the belief that promoting expressive freedoms will make individuals more open...

• Unconstitutional Conditions Doctrine

  The unconstitutional conditions doctrine is encountered most often in First Amendment cases involving government contracts that restrict the contractor’s...

• Viewpoint Discrimination

  Viewpoint discrimination occurs when the government singles out a particular opinion or perspective on that subject matter for treatment unlike that given to...