Terms – The First Three
Amendments
Module 7
Terms – Chapter 7
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Actual Malice: A standard applied by courts in cases where public
officials are suing for libel. This standard specifies that they must
show either that such statements were published with knowledge
that they were false or with reckless disregard of their truth or
falsity.
Bad Tendency Test: A test for freedom of speech, utilized both
before and after development of the clear and present danger test,
that allows governments to suppress speech judged to present a
dangerous tendency.
Clear and Present Danger Test: A test applied to laws regulating
freedom of speech devised by Justice Oliver Wendell Holmes, Jr. in
Schenck v. United States (1919) and designed to indicate that
speech is highly protected but not absolute. Under this test
governments can legitimately suppress speech that poses a “clear
and present danger” that such governments have a right to prevent.
Terms – Chapter 7
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Fighting Words: Highly emotional and inflammatory
words expressed in a face-to-face setting that may be
prohibited as having the effect of force. In Chaplinsky v.
New Hampshire (1942), the Supreme Court said that
such words were not protected by the First Amendment.
Free Exercise Clause: The provision in the First
Amendment barring the government from “prohibiting
the free exercise of” religion.
Establishment Clause: The provision in the First
Amendment prohibiting government from making laws
“respecting an establishment of religion.”
Terms – Chapter 7
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Gravity of the Evil Test: A weaker reformulation of the clear and
present danger test, which was applied by the Court in Dennis v.
United States (1951), permitting judges to determine whether the
gravity of the evil, discounted by its improbability, allows for
legislative action.
Hicklin Test: A standard, since abandoned, according to which a
work was judged to be obscene if its tendency was such as to
deprave and corrupt those whose minds were open to such
influence and into whose hands such a work might fall.
Lemon Test: A three-part test first fully formulated in Lemon v.
Kurtzman (1971) to assess whether the establishment clause has
been violated. The test, which the Supreme Court does not apply on
a consistent basis, requires that legislation must: have a secular
legislative purpose, neither advance nor inhibit religion, and avoid
excessive entanglement with religion.
Terms – Chapter 7
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Libel: The publication of false and damaging information about another.
Although U.S. courts have ruled that such libel is not protected by the First
Amendment, they have also made it difficult, especially for public figures, to
prove accusations of libel
Militias: The original militias were organized forces whose members were
subject to a host of legal requirements imposed by the states. Eighteenthcentury Americans strongly preferred a volunteer citizen army, militia, to a
professional, standing army in peacetime. They feared that a large national
army might fall under the rule of some ambitious leader who aspired to
become a military dictator.
Miller Test: A three-part test formulated in Miller v. California (1973) for
assessing whether works are obscene. Under this test, a work is considered
obscene: if an average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to a prurient
(lustful) interest in sex; if it depicts or describes in a patently offensive way,
sexual conduct specifically defined by law; and if the work lacks any serious
literary, artistic, political, or scientific value.
Terms – Chapter 7
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Overbreadth Doctrine: A doctrine, applied to free
speech cases, in which courts strike down laws so overly
broad that they sweep both protected and unprotected
speech within their ambit.
Prior Restraint: The heart of freedom of the press in
the United States is understood to rest in the strong
presumption against any prior restraint of publication.
Some such publications may subsequently be
prosecuted, however, for example in cases where they
are obscene or libelous.
Shield Laws: Laws designed to shield reporters from
grand jury inquiries about matters that they have
discovered in their news-gathering capacities.
Terms – Chapter 7
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Separation of Church and State: A principle,
not actually stated in the Constitution, but
arguably consistent with the establishment
clause of the First Amendment and “no religious
test” in Article VI..
Symbolic Speech: Communications other than
through written or verbal words. The Court has
extended protections to such speech through
the First and Fourteenth Amendments.
Cases
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Abington v. Schempp (1963): Followed up on Engel v. Vitale
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Barron v. Baltimore (1833): Ruled that the Bill of Rights applied
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(1962) by deciding that the establishment clause of the First
Amendment outlawed public readings from the Bible and recitations
of the Lord’s Prayer in public school classrooms.
only to the national government and not to the states. This decision
has been subsequently modified by decisions that have been
rendered after the adoption of the Fourteenth Amendment.
Engel v. Vitale (1962): On the basis of the establishment clause
of the First Amendment, this decision outlawed the public recitation
of a non-sectarian prayer composed by the New York State Board of
Regents for public schools.
Cases
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Gitlow v. New York (1925): In upholding a conviction of a
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Miller v. California (1973): Established a three-part test for
Socialist who had distributed incendiary literature, the Supreme
Court used the “dangerous tendency” test rather than Holmes’s
“clear and present danger” standard. However, Justice Edward
Sanford did acknowledge that First Amendment protections of
speech and press were protected by the Fourteenth Amendment,
thus helping to launch the movement for incorporation of other such
guarantees in the Bill of Rights into the Fourteenth Amendment
where they would restrain the states.
identifying obscenity that, with minor modifications, is still in effect
today. The standard is based on local community standards.
Cases
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Miller v. California (1973): Established a three-part test for
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New York Times Co. v. Sullivan (1964): Established “actual
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New York Times Company v. United States (1971): The so-
identifying obscenity that, with minor modifications, is still in effect
today. The standard is based on local community standards.
malice” as the standard that the Court would apply in adjudicating
cases in which public figures allege that they are victims of libel.
called “Pentagon Papers” Case in which the Court reaffirmed the
strong presumption against prior restraint and permitted publication
of papers relative to the history of United States involvement in
Vietnam.
Cases
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Palko v. Connecticut (1937): In deciding that the double
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Schenck v. United States (1919): In upholding the conviction of
jeopardy provision did not apply to the states—a decision later
overturned in Benton v. Maryland (1969)—Justice Benjamin
Cardozo forcefully articulated the doctrine of selective incorporation
whereby only those rights considered to be fundamental were
applied to the states via the due process clause of the Fourteenth
Amendment.
a Socialist who had mailed pamphlets to potential draftees
encouraging them to avoid the draft, Justice Holmes articulated the
“clear and present danger” test designed to give broad protection to
speech while indicating that it was not unlimited.
Cases
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Texas v. Johnson (1989): In a decision later reaffirmed in
United States v. Eichman (1990), the Court ruled that a Texas
law prohibiting flag desecration was an unconstitutional
infringement of the First Amendment freedom of speech.
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Tinker v. Des Moines Independent County School District
(1969): Established the right of public school students to engage in
nonviolent symbolic speech, in this case, the wearing of black arm
bands in protest of the war in Vietnam.
West Virginia State Board of Education v. Barnette (1943):
Overturned the earlier decision in Minersville School District v.
Gobitis (1940) and said that public school students with religious
objections could not be disciplined for refusing to salute the
American flag.
SECOND AMENDMENT CASES
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Eighteenth-century Americans strongly preferred
a volunteer citizen army, militia, to a
professional, standing army in peacetime. They
feared that a large national army might fall
under the rule of some ambitious leader who
aspired to become a military dictator. This
amendment was designed to guarantee to states
the right to maintain a militia. It did not restrict
the power of federal and state governments to
regulate private ownership of weapons, unless
such regulations interfered with the militia.
SECOND AMENDMENT CASES
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A series of Supreme Court decisions have
argued that the second amendment guarantees
only a collective right to bear arms in a "wellregulated militia" run by the state. The original
militias were organized forces whose members
were subject to a host of legal requirements
imposed by the states. The second amendment,
therefore, was intended only to protect the
states' rights to maintain they own militias, and
therefore it permits all levels of government to
limit private assess to firearms.
Second Amendment Cases
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United States v. Cruikshank (1876): The court ruled
that the right to bear arms “is not a right granted by the
Constitution” or by the Second Amendment. That
amendment, the Court said, restricts the power of
Congress, but not the states, to regulate firearms.
Presser v. Illinois (1886) The court upheld a state
law banning the formation and parading of armed
groups of men.
U.S. v. Miller (1939): The Court sustained the
conviction of Jack Miller, who had carried a sawed-off
shotgun across state lines in violation of the National
Firearms Act of 1934. The Court found no reasonable
relationship between a sawed-off shotgun and a wellregulated militia.
Second Amendment Cases
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Printz v. US (1995) declaring federal Brady Bill
background checks on gun purchasers
unconstitutional, with the effect of strengthening
states' rights
United States v. Lopez (1995): Overturned a
federal law prohibiting guns near school grounds
on the basis that such power was not directly
related to congressional powers under the
commerce clause.