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Definition
| The right of legislators, judges and government officials to speak without threat of libel when acting in their official capacities. |
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| In New York Times Co. v. Sullivan (1964), the Supreme Court defined actual malice as a state of mind in which a person or publication makes an untrue and defamatory statement about a person “with knowledge that it was false or with reckless disregard of whether it was false or not.” In order to recover damages for libel or defamation, a public official or public figure must be able to show by clear and convincing evidence that the defendant acted with actual malice. |
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| Appropriation of likeness |
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Definition
| Generally, a person’s right to privacy allows him to determine the use of his name or likeness, except in some public scenarios. Improper invasion of a person’s privacy occurs when one uses his likeness for commercial gain or in such a way that “a person of ordinary sensibilities” would be offended. |
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| These rights, which forbid the government from preventing people from joining organizations, are found implicitly in the First Amendment guarantee to speak and assemble freely. So long as the association or group in question does not present a clear and present danger, or advocate illegal activity, it is fully protected by the First Amendment (unless subject to a “time, place and manner” restriction). However, this right does not always work both ways, as there are certain situations where the government may force a group to include members. |
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| The bad-tendency test finds its roots in English common law, where it stood for the proposition that the government could restrict speech that would have the tendency to cause or incite illegal activity. Articulated in 1907 in the Supreme Court case Patterson v. Colorado, the test only stood for a dozen years. It was overruled when Justice Holmes, speaking for the majority, implicitly rejected this test with the advent of the “clear and present danger” test in Schenck v. United States (1919). This test, while analytically similar, requires a showing that the speech will cause a real and imminent threat. |
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| The government has the ability to limit speech that would otherwise be protected if that speech is being imposed on a captive audience, which occurs when it would be impractical for the listener to be able to escape that speech. This is often used in cases of minors. |
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| Certiorari (writ of certiorari) |
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Definition
| Certiorari, meaning in Latin to “be more fully informed,” is the procedure used by the Supreme Court and appellate courts to review the cases they hear. After receiving an appeal, the court decides whether to grant certiorari and review the lower court’s case. If it grants certiorari, or “cert,” then the higher court reviews the case. If the court denies cert, then the lower court ruling stands. In the Supreme Court, the votes of four justices are required to grant certiorari. |
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| In Schenck v. United States (1919), Justice Oliver Wendell Holmes articulated this test, which said that the government may suppress speech that presents a clear and present danger, as long as the government can show that that danger is both real and imminent. |
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| As a general rule, the government cannot force an individual to express himself in a way that he would not otherwise do. This principle stems from West Virginia State Board of Education v. Barnette (1943), which held that a state could not force students to recite the Pledge of Allegiance. However, complications arise when commercial speech is involved, because companies, not people, are expressing themselves, and some advertising and other commercial speech can be regulated. |
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| A law that discriminates based on the content of a message — as opposed to the time, place or manner in which that message is made, or the reactions it incites in people — is considered presumptively unconstitutional. |
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| The opposite of content–based laws, content–neutral regulation of speech means the restrictions are placed on any speech regardless of what it says. For example, although a law might be able to regulate whether pamphlets could be distributed in a public school, it could not discriminate against only Christian or Muslim pamphlets Such content neutral regulations that interfere with speech are examined under a balancing test, comparing the state’s interest in prohibiting the activity in question and the level of interference with the speaker, which is often determined by looking at available avenues of communication. |
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| A challenge that claims a law is inherently unconstitutional (unconstitutional on its face), as opposed to a law that is applied in a particular situation unconstitutionally. |
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| A form of invasion of privacy in which a person is presented in way that leaves a negative and inaccurate impression about that person. False light is a tort theory under which a claimant might sue for damage to reputation. |
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| In its leading case on the subject, Chaplinsky v. New Hampshire, the U.S. Supreme Court defined fighting words as those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The court later used the terms “epithets” and “personal abuse” in discussing fighting words. |
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