First Amendment Glossary
Learning about the First Amendment sometimes involves wading through legal terms. These words can be confusing when you first encounter them. This glossary provides an everyday definition for many words you’ll find in discussions of the First Amendment.
Actual malice
The actual malice standard makes it hard for a public official or public figure to win a defamation case. In a defamation lawsuit, the person suing because they believe their reputation has been harmed must prove that a false statement was made about them and that it was made with some degree of “fault.” That means the person who made the false statement acted improperly. Actual malice means the speaker or writer knew they were making a materially and substantially false statement or they spoke or wrote with reckless disregard to whether it was false or not.
Anonymous speech
This is speech in which the author is not identified or known. The U.S. Supreme Court has held that anonymous speech is often protected by the First Amendment. For example, the court held that civil rights protestors could distribute an anonymous pamphlet urging a boycott of businesses that racially discriminated against African Americans in Talley v. California (1960).
Anti-SLAPP
The term “SLAPP” stands for Strategic Lawsuit Against Public Participation. These are lawsuits whose primary purpose is to force someone to retract a critical statement to avoid amassing significant legal fees in defending themselves. These lawsuits are meant to intimidate a person from making a complaint.
Anti-SLAPP laws are designed to protect people who speak out on matters of public concern by allowing courts to decide these cases quickly and, in some cases, allow the person who was sued to recover legal fees and court costs. Thirty-three states and the District of Columbia have anti-SLAPP laws.
Assembly
The right of the people peaceably to assemble is one of the five freedoms protected by the First Amendment. An assembly refers to a meeting of people. Gatherings for protest or for political, social or religious purposes are protected by the First Amendment from unreasonable restrictions and from retaliation or punishment of the people involved.
Association
Association is sometimes considered the “sixth freedom” but is really a key element of the right to assemble. It refers to the ability of like-minded individuals to gather to express themselves. The U.S. Supreme Court first recognized that the First Amendment protects the right to freedom of association in N.A.A.C.P. v. Alabama (1958).
Censorship
Censorship refers to the act of suppressing speech or expression. When the government or a government official engages in an act of censorship, the protections of the First Amendment are triggered. Acts of private censorship are beyond the reach of the First Amendment, as there is no action by the government at any level (local, state or federal), which is called state action.
Chilling effect
An infringement on First Amendment freedoms that occurs when people refrain from speaking or expressing themselves for fear of violating a governmental law or policy. Overbroad or vague laws can create a chilling effect, because people will avoid the unclear forbidden zone and refrain from expressing even speech that is protected.
Commercial speech
Commercial speech is any expression whose primary purpose is to sell a product or service, like advertisements. It has traditionally received less First Amendment protection than other areas of speech such as political speech. Commercial speech can be regulated if it refers to an illegal product or service or is false and misleading. It can also be regulated if (1) there is a substantial government interest in regulating the speech, (2) the regulation directly advances that interest, and (3) the regulation is not more extensive than necessary to serve that interest.
Compelled speech
The compelled speech doctrine says the government cannot force us to say things any more than it can restrict us from saying things. The U.S. Supreme Court has ruled that, among other things, children cannot be forced to pledge allegiance to the flag, a New Hampshire man was not required to display the state motto “Live Free or Die” on his car’s license plate, and a website designer would not have to create a website for a same-sex wedding because doing so would force her to express messages contrary to her religious beliefs.
Compelling interest
In the rare instances when the government can restrict speech based on its content, the government must demonstrate that there is a compelling interest for the law, regulation, or enforcement because of a significant harm that will result from the speech. Examples of such harm would be a threat to national security, potential harm to children, interference with election integrity, or danger to public health and safety.
Content based
A law, regulation, or punishment that is targeted at a particular message that the government seeks to suppress is content based. Examples include a law that prohibits criticism of a foreign country or promoting or opposing a candidate for office. Content-based restrictions of speech violate the First Amendment unless the government can meet the “strict scrutiny” test by demonstrating (1) a compelling interest in restricting the speech because there is some harm the speech would cause and (2) that the restriction is narrowly tailored to avoid that harm but allow all other speech to continue.
Content neutral
A law, regulation, or punishment that is not aimed at the message being conveyed but still has an impact on the speaker’s ability to get their message across is content neutral. Content neutral restrictions on speech often take the form of a “time, place, and manner” restriction that limits all speech in certain places, at certain times, and of certain volumes or other characteristics. Content neutral restrictions on speech need only meet the “intermediate scrutiny” test.
Copyright
A type of intellectual property that protects creative expression. The federal Copyright Act protects all original works of authorship fixed in a tangible medium of expression – any permanent creation like a book, movie, painting, sculpture, musical composition, sound recording, etc. The goal of copyright law is to provide financial incentives to encourage people to continue to create new expressive content. The law prevents anyone from creating something substantially similar to another person’s copyrighted work but does allow certain types of “fair use.”
Deepfake
Deepfakes are faked or manipulated images, audio or video content. The term “deepfake” comes from a combination of “deep learning” and “fake” because deepfake content is fake audio or video generated by an artificial intelligence program that uses machine learning. As forms of expression, deepfakes are entitled to First Amendment protection when the government tries to regulate them.
Defamation
Speech that harms the reputation of a living person through either written (libel) or spoken (slander) expression. Speech that meets the narrow legal definition of defamation — as defined in each of the states’ laws — is not protected by the First Amendment and can be punished via a civil lawsuit in which the person who claims they were defamed can receive financial compensation from the person who defamed them.
Doxing
Doxing is publishing information that can be used to identify, locate and contact someone without their consent. It usually refers to publishing someone’s home address, email address, phone number and other contact information online. Generally, doxing is not illegal. In fact, publishing is protected by the First Amendment. But doxing can lose First Amendment protection if, for instance, it is used to threaten someone, to publicly disclose highly offensive private facts, or as an intentional infliction of emotional distress.
Establishment clause
Religious freedom in the United States is guaranteed by two provisions of the First Amendment to the U.S. Constitution: the establishment clause and the free exercise clause. The establishment clause states: “Congress [government] shall make no law respecting an establishment of religion …” This provision divides the institutions of religion and government, sometimes referred to as the separation of church and state. Over the past 70 years, the establishment clause has been interpreted by the U.S. Supreme Court to prohibit state sponsorship of religion, and to prevent government from either advancing or hindering religion, preferring one religion over others, or favoring religion over non-religion.
Fair use
Fair use protects the right to make limited use of copyrighted content. Copyright infringement occurs when someone uses another person’s copyrighted content without the owner’s permission. But fair use is a defense to a copyright infringement lawsuit in which a court determines there will be no economic harm to the copyright owner and the use was OK. The court looks at four factors to make that determination:
- Whether the copyrighted content is commercial.
- Whether the user was engaged in commercial use of the content.
- Whether a large and important amount of the original copyrighted work was used.
- Whether the use will negatively impact the economic market for the copyrighted work.
False light
False light is a legal cause of action that involves portraying someone at odds with reality. It is different from defamation. While defamation involves harm to reputation, false light involves the widespread distribution of highly offensive and false material about someone. It generally involves more visual material, like a miscaptioned photo or a voiceover that does not accurately describe the accompanying video.
Fighting words
Fighting words are direct, face-to-face personal insults that have little to no social value and are not protected as free speech. The U.S. Supreme Court initially defined fighting words in Chaplinsky v. New Hampshire (1942) as those words “which by their utterance inflict injury or cause an immediate breach of the peace.”
First Amendment
The First Amendment is part of the Bill of Rights, the first 10 amendments to the United States Constitution. It protects the five freedoms of religion, speech, press, assembly and petition against infringement by the government. It does not protect against restrictions or punishments imposed by private employers, private schools, or other people in society.
First Amendment audit
A First Amendment audit is a term used by people who film public officials or employees. The goals of such an audit can be to hold officials accountable or test the right to film in public spaces like town halls, libraries, police stations, parking lots, or state and local agencies. The public space “passes” the test if the audit is uneventful. It fails the test if a public employee confronts the person filming (the “auditor”), attempts to stop them from filming, threatens them with arrest, or removes them from the public space.
Fraud
While the First Amendment’s protection of free speech is broad, fraudulent statements fall, for the most part, outside its scope. Fraud involves making a statement or omitting key information to intentionally take advantage of someone for your gain and/or their harm; it’s not just lying but lying with the intent to cause specific harm. In 1949, the U.S. Supreme Court held unanimously in Giboney v. Empire Storage & Ice Co. that the First Amendment gives no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” False advertising or knowingly making factual misrepresentations to obtain money or reap other material benefit are no different, in this view, than a robber’s demand at gunpoint that a victim hand over their money. None of these are protected as free speech.
Freedom of Information Act
The Freedom of Information Act, or FOIA, is a federal law that allows anyone to request any record from an executive branch agency of the federal government. The government is required to turn over existing records unless one of nine listed exemptions apply. FOIA, and its state and local counterparts, serve as a valuable check on government waste, fraud and abuse.
Free exercise clause
Religious freedom in the United States is guaranteed by two provisions of the First Amendment to the U.S. Constitution: the establishment clause and the free exercise clause. The free exercise clause states: “Congress [government] shall make no law … prohibiting the free exercise” of religion. The U.S. Supreme Court has interpreted these words to mean protection for the right of individuals and groups to practice their religion openly and freely without governmental interference. Although the text is absolute (“no law”), the courts have placed some limits on the exercise of religion. While the freedom to believe is absolute, the freedom to act on those beliefs is not always protected if the action violates a generally applicable law.
Gag order
Formally known as a non-dissemination order, a gag order is a court-imposed restriction on what information during a trial or preliminary proceedings can be released to the public and what those involved in the case can say about it.
Government speech
Government speech is expression started and controlled by the government. The idea is that the government is more than just the regulator of private speech, but it is also an active participant in the marketplace of ideas. The government speech doctrine is important in First Amendment law because if speech is labeled and considered “government speech,” then it is immune from First Amendment challenges. Examples of government speech include flag poles in front of government buildings (if only the government chooses which flags to fly) and monuments created or approved by the government for display in a public park.
Harassment
Harassment is an important, but narrow, exception to the First Amendment’s broad protections of free speech. It is typically invoked with respect to workplace and educational settings. Harassment consists of unwelcome, discriminatory conduct or expression, based on protected categories such as race, sex or national origin, that is “so severe, pervasive, and objectively offensive,” according to Davis v. Monroe County Board of Education (1999), that it effectively denies equal access to an institution’s resources and opportunities. Whether in the workplace or at school, harassment creates an environment that a reasonable person would consider hostile, abusive or intimidating. In both settings, the concept includes quid pro quo harassment, such as where benefits are conditioned on sexual favors. At the same time, prohibitions on harassment do not include a categorical right not to hear views to which one objects or even finds deeply offensive. Courts have struck down antiharassment regulations and laws for overbroad language that would bar substantial protected speech.
Hate speech
Hate speech is generally understood to be public speech that expresses hate or encourages violence toward a person or group based on a characteristic such as race, religion, sex or sexual orientation. But it has no legal definition in the United States because it is protected by the First Amendment. The only time speech that qualifies as “hate speech” can be punished is when it falls outside the protection of the First Amendment for another reason. Some examples include speech that is hateful and constitutes a true threat, fighting words, defamation or incitement to imminent lawless action.
Heckler’s veto
A phenomenon in which a speaker is silenced based on the unruly or disruptive acts of third parties. In other words, a heckler’s veto occurs when a speaker is shouted down or silenced by a rowdy crowd or hostile audience. The heckler’s veto does not violate the First Amendment, but a First Amendment violation occurs when the government silences the speaker because of a hostile crowd reaction.
Incitement to imminent lawless action
A narrow, unprotected category of speech that incites third parties to immediately break the law and commit unlawful acts. The U.S. Supreme Court explained the incitement exception to the First Amendment in Brandenburg v. Ohio (1969), writing that “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe [advocacy of illegal conduct] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The key to this exception to free speech protections is the imminency requirement.
Indecent speech
Indecent speech is speech that refers to sexual or excretory functions but that does not rise to the level of “obscenity” as defined by the U.S. Supreme Court in the 1973 case of Miller v. California. Indecent speech is protected under the First Amendment in most instances. Notably, the Supreme Court held that Paul Cohen could not be convicted for wearing a jacket in a California courthouse with a four-letter expletive written on the back.
There are some exceptions to this protection for indecent speech:
- Indecent speech by public school students may be punished if it occurs during a school sponsored activity or is likely to cause a material disruption to the learning environment or interfere with the rights of others.
- Children can be prevented from accessing material considered “harmful to minors” due to its sexual content if the restrictions on their access do not prevent adults from accessing those materials.
- The Federal Communications Commission also has the power to regulate indecent speech on broadcast – but not cable or satellite – television and radio due to the physical scarcity of broadcast stations in any given market and the pervasiveness of these media if it airs between the hours of 6 a.m. and 10 p.m. The FCC’s regulations define 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 organs or activities.”
Intentional infliction of emotional distress
A legal cause of action that exists when published or broadcast content is “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” It is a category of speech that falls outside of the protection of the First Amendment, but it is also very narrowly defined to the point where the claim is generally not successful. The U.S. Supreme Court has ruled in two major cases that intentional infliction of emotional distress cannot exist when the statements at issue are obvious parody (Hustler Magazine Inc. v. Falwell, 1988) or when the statements are made in the context of discussion on a matter of public concern (Snyder v. Phelps, 2011).
Learn more about intentional infliction of emotional distress
Intermediate scrutiny
The standard of review applied by a court when deciding whether a content neutral law violates the First Amendment. To justify a content neutral law, the government must demonstrate (1) an important or substantial interest in the law; (2) that this interest is unrelated to the content of the speech; and (3) that the restriction limits no more speech than necessary and allows other avenues for the speech to occur.
Low value speech
Certain types of speech fall outside the protection of the First Amendment because, as the U.S. Supreme Court said in creating the fighting words doctrine in Chaplinsky v. New Hampshire (1942), they serve “no essential part of any exposition of ideas,” and possess “such slight social value as a step to truth that any benefit that may be derived from [its expression was] clearly outweighed by the social interest in order and morality.” In addition to fighting words, other examples of “low value speech” include defamation, obscenity, true threats and incitement to imminent lawless action.
Narrowly tailored
One half of the strict scrutiny test applied to content-based restrictions on speech, it requires that there be no less restrictive alternative to avoid the clear harm that certain speech might cause. Some examples of violations of the narrow tailoring requirement are if a restriction prevents both illegal and legal speech from occurring, if it is vague to the point that a speaker will be unsure if they will be punished for what they say, or if it is viewpoint discriminatory.
Negligence
The negligence standard applies to a private figure in a defamation case. In a defamation lawsuit, the person suing because they believe their reputation has been harmed must prove that a false statement was made about them and that it was made with some degree of “fault.” That means the person who made the false statement acted improperly. Negligence means the speaker or writer departed from what a reasonable person would do under the same circumstances in terms of confirming that their statement was true or false. For instance, a journalist acts negligently when they depart from established ethical standards.
Obscenity
Obscenity is speech that is so lewd, offensive and without value that it loses First Amendment free speech protection. In three decisions between 1973 and 1987, the U.S. Supreme Court set a three-part test to define and determine obscenity: Does the average person, applying contemporary adult community standards, (1) find that an act or material appeals to prurient interests; (2) does it depict or describe sexual conduct in a patently offensive way (3); and does the act or matter, taken as a whole, lack serious literary, artistic, political or scientific value.
Overbroad
A key concept in First Amendment law that refers to a law or regulation that sweeps too broadly and prohibits a great deal of protected free speech in addition to speech that can be prohibited. For the overbreadth doctrine to apply, the law must be substantially overbroad, which requires more than just possibly restricting some protected speech.
Petition
The right to petition is one of the five freedoms protected by the First Amendment. It refers to seeking change in policy or practice. When directed to government, it is an act and process protected by the First Amendment from unreasonable restrictions and from retaliation or punishment of petitioners.
Political speech
The core type of speech that the First Amendment was designed to protect. It generally refers to speech related to ideology or speech that touches on what the U.S. Supreme Court called “politics, nationalism, religion, or other matters of opinion.”
Press
Freedom of press is one of the five freedoms protected by the First Amendment. The term “press” is often used interchangeably with “news media” for an industry that includes newspaper, magazine and book operations, radio and television news operations, online news and information providers, and their newsgathering and reporting staffs.
Prior restraint
Prior restraint is when the government restricts speech before it happens. It also is when the government requires any review or approval process before the speech or expression occurs. Because they completely prevent speech before it occurs, prior restraints are almost always invalid under the First Amendment and are only justified in the most extreme circumstances when no other alternative to avoiding significant harm is possible. For this reason, they are most often limited to situations involving direct and otherwise unavoidable threats to national security.
Private figure
For purposes of defamation law, a private figure is neither a public official nor a public figure but instead is an average person in the community who deserves some measure of privacy in the public discussion. Private figures must demonstrate negligence by a speaker who said something false about them to recover damages in a defamation lawsuit.
Public disclosure of private facts
Public disclosure of private facts is a legal cause of action that involves the widespread publication of private – but true – information about someone that would be highly offensive to a reasonable person and is not of legitimate public concern. To qualify as a private fact, the information revealed cannot have come from a public record, be something that occurred in a public space or be generally known in the local community prior to publication. Even then it must be embarrassing or cause anguish to the person to whom it pertains.
Public employee speech
Speech made by an employee of the government, be it federal, state or local. Public employees do not lose all their free-speech rights simply because they accept government employment. They often can comment on matters of public concern or importance if that speech does not disrupt close working relationships. Public employees do not have any free-speech rights for their “official, job-duty speech.”
Public figure
In defamation law, there are two types of public figures:
- All-purpose public figures are instantly recognizable and widely known in the community where the dispute arose (including celebrities and other famous people).
- Limited-purpose public figures inject themselves into public debate or spotlight on a certain topic.
Public figures must demonstrate actual malice by a speaker who said something false about them to recover damages in a defamation lawsuit.
Public forum
A public forum is a place or property owned or controlled by the government that is open to the public for free speech or assembly. There are several different types of public forums, each with different First Amendment protections offered to speakers.
- Traditional public forums are places traditionally perceived as appropriate – and thus open – for speech such as public parks or sidewalks. The government can only restrict speech here if it can justify the restriction under the strict scrutiny test.
- Designated public forums are places that are intentionally opened for public speech or for certain types of speech such as public streets, the areas in front of government buildings, and public events like state fairs. The government can only restrict speech here if it can justify the restriction under the strict scrutiny test.
- Nonpublic forums are places that the government “owns and controls” in the same vein as a private property owner and that are not traditionally dedicated to speech. Examples include public university classrooms, airports and train stations. The government can restrict speech here if the restriction is reasonable and viewpoint neutral.
Public official
For purposes of defamation law, a public official is a government employee who has decision-making responsibility at any level of government. The term includes people like the president, members of Congress, governors, mayors, etc. It also includes staff who are involved in drafting, passing and enforcing laws like congressional staff, executive branch attorneys, judicial clerks, police officers, school board members and school administrators. It would generally not include employees like secretarial staff, janitorial staff and security guards.
Public officials must demonstrate actual malice by someone who said something false about them to recover damages in a defamation lawsuit.
Reindeer rule
The reindeer rule or plastic reindeer test is a humorous description of the legal test used by the U.S. Supreme Court in cases involving government-sponsored holiday displays in the Christmas season. The court says that government holiday displays are permissible under the First Amendment’s establishment clause if, and only if, the overall message of the display is secular, not religious. Religious symbols such as a nativity scene or menorah may be included in such displays if they are accompanied by secular symbols such as Christmas trees, Santa Claus or reindeer. Some legal scholars began mockingly referring to the court’s test as the “reindeer rule” or “plastic reindeer test,” and the phrase stuck.
Religion clauses
The clauses of the First Amendment of the Constitution that forbid the government from establishing religion and from limiting the free exercise of religion are often called the religion clauses. Both protect religious freedom and safeguard the principle of separation of church and state.
Religious accommodation
While sometimes used interchangeably with “religious exemption,” religious accommodation typically means an adjustment to the workplace environment to allow an employee to practice their religious beliefs while still fulfilling the core responsibilities of their position. Religious accommodation is often also available in schools. Enabling religious accommodation recognizes that formal equality in which everyone is subject to the same rules, regardless of disproportionate impact, can force people to choose between their faith and their livelihood or other essential aspects of participation in society. Civil rights law requires many employers to provide reasonable accommodation unless it creates an undue hardship for the employer.
Religious exemption
While “religious accommodation” and “religious exemption” are often used interchangeably, religious exemption more narrowly refers to a carveout or exception from existing laws, regulations or practices. Claims to a religious exemption can be grounded in the First Amendment or in statute (such as the federal or state Religious Freedom Restoration Acts). The most contentious assertions of religious exemption today are claims by people, churches, nonprofits or businesses to an exception from nondiscrimination laws. However, religious exemption claims arise in many other contexts, such as, for example, requests to be exempt from mandatory vaccinations.
Religious freedom
Religious freedom has been defined in many ways throughout the world and in history. In the United States today, religious freedom is defined by the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The U.S. Supreme Court has interpreted “no establishment” to prohibit all levels of government from endorsing or promoting one religion over another or religion over non-religion, and “free exercise” to mean the right of every person to practice their religion openly and freely without governmental interference.
Religious Freedom and Restoration Act of 1993 (RFRA)
RFRA was enacted by Congress to restore through legislation protection for the free exercise of religion that many religious and civil liberties groups believed was weakened by the U.S. Supreme Court in the 1990 decision Employment Division, Department of Human Resources of Oregon v. Smith. Prior to Smith, the government had to show that a law burdening the free exercise of religion was necessary to further a “compelling state interest,” meaning an interest of the highest order such as public health and safety. The government also was required to show that it was pursuing that interest in a manner least restrictive, or least burdensome, to the free exercise of religion. RFRA restores that test by requiring government to show a compelling state interest to justify laws that burden religious freedom. In 1997, the Supreme Court struck down RFRA as applied to state and local government. But RFRA continues to apply to the federal government. Since 1997, many states have passed state RFRAs to strengthen religious freedom protections under state law.
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)
RLUIPA was enacted by Congress to protect people, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws. RLUIPA also protects the religious freedom of people incarcerated in federal and state prisons. When those protected by RLUIPA claim that their free exercise is substantially burdened by government laws or actions, the government must show a compelling state interest (an interest of the highest order such as public health or safety) for the law or action and demonstrate that it is pursuing that interest in a way least restrictive to the free exercise of religion. To date, the U.S. Supreme Court has upheld the constitutionality of RLUIPA.
Religious literacy
Because religion plays a significant role in history and society, religious literacy is a key way to understand history, culture, literature and contemporary life throughout the world. Religious literacy has been defined by the American Academy of Religions as “the ability to discern and analyze the intersections of religion with social, political and cultural life.”
Reporter’s privilege
The reporter’s privilege is an exception to the general requirement that anyone who is asked to testify in court or produce documents to be entered into evidence must comply. It is an important protection for a free press because it offers significant protection for newsgathering, which the U.S. Supreme Court has clearly stated is protected by the First Amendment.
Forty-nine states (except Wyoming) and the District of Columbia have either passed laws or have a court ruling from the highest court in the state that allows a reporter to decline to testify or produce documents based on information that reporter has obtained from a confidential source. These privileges vary in terms of how they define who is protected by the privilege, whether the privilege is absolute or qualified, and whether it applies to just the identity of the source or also to all notes and information.
Secondary effects
The adverse side effects of speech rather than the primary effects of speech. The U.S. Supreme Court created the doctrine in a case involving land-use regulation, such as zoning, of adult businesses. The court explained that zoning regulations that limit adult businesses are not targeting the businesses because of their speech, but because of harmful secondary effects associated with such businesses, such as increased crime and decreased property values. While the secondary effects doctrine has been extended beyond zoning and land use, the U.S. Supreme Court limited the secondary effects doctrine by explaining that it does not apply to listeners’ reaction to speech.
Section 230
Enacted in 1996, Section 230 of the Communications Decency Act says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 provides an important protection for social media sites and other websites that engage in content moderation, which the U.S. Supreme Court has found to be a form of expression that is protected by the First Amendment.
Though these social media platforms and websites are free from the government telling them that they must delete or keep individual posts by users, without Section 230, they still could be sued for content that they choose not to delete. The recognition that the social media platform or website is engaged in expression means they could be liable for anything on their sites.
Section 230 removes some of that fear and enhances the First Amendment protections for social media platforms as it protects them and other websites from liability for content posted by users. Facebook is not liable for defamation based on its user’s posts. YouTube cannot be sued for invasion of privacy based on videos uploaded by its users. TikTok cannot be sued for negligence if someone is injured when trying to copy a risky act they saw online.
Separation of church and state
The phrase “separation of church and state” is often used to describe the meaning of the First Amendment’s establishment clause, which says “Congress shall make no law respecting an establishment of religion…” The influence of the phrase in American history is due largely to Thomas Jefferson who, in an 1802 letter to the Danbury Baptist Association in Connecticut, described the religion clauses of the First Amendment as “building a wall of separation between Church & State.”
Shield law
A form of the reporter’s privilege that has been written into state law as opposed to through a court ruling.
Slander
Speech that damages the reputation of a living person through speaking; a type of defamation.
Speech
Freedom of speech is one of the five freedoms protected by the First Amendment. It protects the expression and ability to convey thoughts or emotions, including through speech, writing, music, symbols and symbolic gestures, against government censorship, punishment or retaliation.
State action
The First Amendment begins with “Congress shall make no law...” This means that freedom of religion, speech, press, assembly and/or petition can only be violated by state action, not by private action. While this was originally interpreted to apply only to actions of the federal government, it has been extended to any official act of government (a law, a regulation, a court order, or an arrest or detainment by police) at any level of government (federal, state or local).
Strict scrutiny
The standard of review applied by a court when deciding whether a content neutral law violates the First Amendment. To justify a content neutral law, the government must demonstrate (1) a compelling interest in restricting the speech because there is some harm the speech would cause and (2) that the restriction is narrowly tailored to avoid that harm but allow all other speech to continue.
Sunshine laws
The Government in Sunshine Act requires that any federal executive branch body meet and conduct business in public and provide sufficient notice to allow the public to know when and where the meeting is going to happen and what will be discussed and voted on. Any action taken in violation of this law – or its state counterparts – is considered invalid.
Time, place, manner
A type of content neutral restriction on speech that applies equally to all speakers regardless of the message they are conveying. It limits all speech in certain places, at certain times, and of certain volumes or other characteristics. Examples include restrictions that:
- Require protests in a private residential neighborhood end by 11 p.m.
- Prohibit protests within 50 feet of a school when classes are in session.
- Restrict the use of loudspeakers or place a maximum decibel limit on noise-enhancing technology used in a protest.
- Mandate that all protests involving more than 100 people obtain a permit.
True threat
An unprotected category of speech that is a cousin to both fighting words and incitement to imminent lawless action. It refers to speech that communicates a serious expression to commit violence or serious bodily harm to another person or group of people. The U.S. Supreme Court ruled in Counterman v. Colorado (2023) that a true threat can only exist when the speaker knew or should reasonably have been aware that their statements could cause another person to fear for their safety.
Undue hardship
Undue hardship is a key element of the federal civil rights law that defines as a form of religious discrimination the failure of an employer to provide reasonable accommodation for an employee’s religious practice. The crucial caveat is that the employer need not provide accommodation if it would impose an undue hardship on the employer’s business.
Vagueness
A law or regulation is vague when it is unclear on meaning and fails to inform people about when their speech or expression violates the law or not. Vagueness is an argument used to challenge the constitutionality of laws that limit speech. The U.S. Supreme Court explained in Reno v. ACLU (1997) that “vagueness … raises special First Amendment concerns because of its obvious chilling effect on free speech.” If a law is vague, people may be afraid to express even protected speech because they are not sure if it is protected.
Viewpoint discrimination
An especially bad, or egregious, form of content or subject-matter discrimination that violates the First Amendment. It occurs when the government favors certain viewpoints or speakers over others. For example, if a local government official allowed a member of one political party to speak but suppressed the speech of the other side, the official has engaged in viewpoint discrimination.
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