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by: Jamie Finkelstein


Jamie Finkelstein

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Chapters 1-5 from The Law of Journalism and Mass Communication
Media Law
Will Youmans
Media, Law, journalism, political science
75 ?




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This 26 page Bundle was uploaded by Jamie Finkelstein on Tuesday April 5, 2016. The Bundle belongs to SMPA 2173 at George Washington University taught by Will Youmans in Spring2015. Since its upload, it has received 26 views. For similar materials see Media Law in Journalism and Mass Communications at George Washington University.

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Date Created: 04/05/16
Chapter 1  The Rule of Law – was a response to the absolute power of monarchy; there are procedures that are consistently applied, unlike what would happen if a kind was in power o Lawyers are necessary because they stand for the ability of those accused to have a say o Without rule of law, there’s no structure for anyone to defend themselves o Societal framework for order for established norms and executing those norms to provide for consistent and neutral decision making o Expectations: the laws need to be specific, not vague, and are intended to limit arbitrary actions o Jurisdiction: location and subject matter; Article 3 Section 1 and 2 – original (Supreme Court, but also can be other courts like federal or state) vs. appellate jurisdiction (ex- case is appealed and goes to the next level of court to check if there is still confusion or if procedures have all been followed properly) o Trial Courts o Courts of Appeals 13 circuits in the federal system  En banc (depending on type of case, the number of judges vary)  The Court System o Judge is the efficient that makes sure proper procedures are followed; are elected or nominated o Lawyers with both parties (plaintiff or defense) o Parties, or defendant in criminal o Jury o Evidence o Witnesses o Cross-examination  The U.S. Courts of Appeals- Appellate courts o Judges o Lawyers – will file briefs o Briefs – outline what was done wrong in a trial o Trial record – what were the established facts and what was the process? o No jury, evidence, witnesses, cross-examination  The U.S. Supreme Court o Granting review  Writ of certiorari – to be informed of. Four justices have to agree to grant the writ, and if it’s successful the Supreme Court will look at it (even when they decide to hear something, it can bring a lot of attention to the issue, but they won’t listen to a hypothetical concern)  Some sort of analysis on a legal basis of why your side is right; get into policy considerations like a hypothetical – if the Supreme Court rules this way, ABC will happen  Will hear an oral argument from the Supreme Court o Reaching Decisions  Per curiam – unsigned opinion of the Supreme Court; a justice can write his or her own explanation for their opinion (or a dissenting opinion) but they don’t have to  Memorandum o Membership – 9 justices (1 chief)  Judicial Review – essential to checks and balances; allows the courts to check the other branches o Marbury v. Madison (1803) – Marbury had asked the Supreme Court for a writ of mandamus  Congress gave the Supreme Court the power to write a writ of mandamus, which was unconstitutional  This new authority was itself unconstitutional, so the court concluded that they have the authority to reject a law from Congress, thus making the power of the Supreme Court clear  Bottom line: Supreme Court said that the judiciary is independent and must review actions of Congress o Originalists – believe that we should understand the constitution based on the original intent of the Founding Fathers o Textualists – we should follow based on what the text says and not based on history o Activists – more expansive; will construct interpretations based on historical context while also thinking of policy implications  Sources of the Law  Constitution o Federalism o Bill of Rights – page 23 on textbook  Statues – law that’s made by legislature (civil, state, county legislative bodies)  Sources of the Law o Why does federal law take precedence over state law?  Supremacy clause in the U.S. Constitution: states are bound by the U.S. Constitution, federal law and federal agency regulations  Sources of the Law o Equity Law – idea that there’s a principal of fairness o Common Law – what comes out of the courts, can be traced back to English-colonial system; based on stare decisis o Administrative Rules – executive-made law made by agencies o Executive Orders – heads of the executive branch of governments have limited power but these orders can overpower all else (ex. – Guantanamo Bay)  The Case Process o Civil Suits  Plaintiff vs. defendant  Tort – a type of civil suit where someone was harmed  Discovery – part of civil suit where facts are gathered  Subpoena – court orders forcing people to produce documents/evidence  Voir dire – process of finding a jury  Peremptory challenge – kick out a juror for no reason o Summary judgment – a very quick decision, usually happens in the earliest stages like complaint and service of process; stages:  Complaint, service of process, preliminary motions, answer to complaint, discovery, pretrial motions, trial, final judgment or appeal  Finding the Law o Dept. of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749 (1989)  Briefing Cases (FIRAC) – page 37, do this for each case in each chapter at the back of the book o Facts – summarize what happened and what’s the basic story? What is the cause for dispute? What were the prior decisions of the case in the lower courts o Issue – yes or no question at the heart of the case. Ex. – does the Supreme Court have the ability to review acts of Congress/Marbury? o Rule of Law – what is the law at the center of the case? o Analysis – what was the rationale of the decision? What was tested? What was the precedent? Usually not much longer than a paragraph o Conclusion – what did the court decide? Was it unanimous (those are usually the most significant)? Did the court affirm or deny? Chapter 2  The law of journalism and mass communication o The First Amendment: Speech and Press Freedoms and Theory and Reality  The First Amendment o Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances o Literal interpretation: completely ban Congress from abridging the freedom of speech or of the press in any way. But in 1925, the Supreme Court said the First Amendment applied to state legislatures as well  Interpreting the First Amendment o Positive vs. negative liberty?  Negative liberty is a prohibition or limitation on government power that translates into a freedom; constrains governmental power  Positive liberty is a liberty that a government grants  Presumption is freedom, not government power o Original intent – perceived intent of the framers of the First Amendment that guides contemporary First Amendment application and interpretation; problem with this is that no one really knows the original intent o Ad hoc balancing – courts make decisions according to the specific facts of the case under review rather than on the basis of more general principles; creates a weaker presence o Categorical approach – a judge’s or court’s practice of deciding cases by weighing different broad categories, such as political speech, against other categories of interests, such as privacy, to create rules that my be applied in later cases with similar facts  Chaplinsky v. New Hampshire  Facts – A New Hampshire statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinsky, a Jehovah’s Witness, called a City Marshal a “God damned racketeer” and a “damned fascist” in a public place and was therefore arrested and convicted under the statute.  Issue – Did the statute or the application of the statute to Chaplinksy’s comments violate his free speech rights under the First Amendment of the Constitution?  Rule of Law – “Fighting words” are not entitled to protection under the First Amendment of the United States Constitution.  Analysis – The right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment; these include “fighting words.” The statute is narrowly drawn to define and punish specific conduct lying within the domain of government power.  Conclusion – No. The lower court is affirmed. o Origins of the First Amendment  England’s suppressive laws – the First Amendment was intended to prevent the U.S. government from adopting the types of suppressive laws that flourished in England during the 300 years following the intro of the printing press in 1450  The British Crown controlled all presses in England through licensing  Various taxes on media products like paper  Foundations of the First Amendment  Milton’s Areopagitica – 1644, English poet John Milton’s unlicensed “Areopagitica” argued that an open marketplace of ideas advanced the interests of society and humankind  Locke – late 1600s, argued that government censorship was improper exercise of power and that all people have fundamental natural rights, including life, personal liberty and self-fulfillment, including freedom of expression. Argued that government exists only through the grant of power from the people  Rousseau – social contract between people and government; argued that unless constrained by morality and law, people would become uncivilized and violent  Blackstone – 1769, legal scholar said that freedom of speech meant only that government could not censor speech prior to publication; supported common law  Zenger trial – seditious libel made it illegal to publish anything harmful to the reputation of a colonial governor; John Peter Zenger broke the law by printing critic of colonial Gov. William Cosby. Zenger was jailed, but acquitted in 1734 when the courts agreed that no one should be jailed for publishing truthful and fair criticism  Sedition Act – under John Addams presidency; basically said that criticizing the government and to organize in a way to act against or criticize the government was illegal; lasted for three years o Milton’s Areopagitica  “Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” o First Amendment Values  Instrumental vs. Intrinsic (inherent) reasons  Individual liberty – free speech is intertwined with fundamental natural rights  Self-government – freedom of speech enables all peoples to engage in discussion in pursuit of democratic self-determination  Limited government power – the people act as a check on government; they exercise their right to judge public officials  Attainment of truth – marketplace of ideas helps advance knowledge and the discovery of truth  Safety valve – free speech allows society to acknowledge and attend to problems before they escalate into violence  Free speech as an end in itself – may not be valued just because of benefits, but may be an end in and of itself, a valuable good and cherished right o Contemporary Prior Restraints – freedom of the press cannot coexist with prior restraint, for it stops speech before it is expressed and halts presses before publication; seen as counter to the constitution; prior restraint is accepted when it comes to national security  Near v. Minnesota (1931) – began the Court’s modern understanding of prior restraint; the Court said that prior restraint, especially any outright ban on expression, is the least tolerable form of government intervention in the speech marketplace  Jay Near, published of The Saturday Press, printed eight issues of his paper filled with charges that city gov. and police officials were doing nothing to stop Jewish gangsters; the paper was shut down under a state public nuisance law – the Supreme Court ruled the ban unconstitutional  Pentagon Papers case – 1971, U.S. Pentagon Papers documented Vietnam secrets, published by the NY Times and injunction was made by Nixon. Supreme Court ruled the injunction illegal  WikiLeaks – 2010 posting of 90,000 classified U.S. military documents on Afghanistan war  Hot News and  (would piggy back on the back of top places) publishing was answered by the Hot News Doctrine o Court Scrutiny of Laws That Affect First Amendment Rights  Content-based laws – presumptively invalid  Strict scrutiny – a test for determining the constitutionality of laws restricting speech, under which the government must show it is using the least restrictive means available to directly advance a compelling interest o Be necessary o To advance a compelling government interest and o Go no further than necessary in harming First Amendment rights  Symbolic speech – action that warrants First Amendment protection because its primary purpose is to express ideas  Content-neutral laws. E.g. TPM laws – time/place/manner laws; a First Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also the laws that regulate these conditions  May reduce the overall quantity and diversity of speech or the ability of a speaker to reach a chosen audience but do not censor specific ideas and advance some legitimate government goal  Intermediate scrutiny – a standard applied by the courts to review laws that implicate core constitutional values; also called heightened review  U.S. v. O’Brien (1968) o Conviction of David O’Brien, who burned his draft card on the steps of the South Boston Courthouse to protest the Vietnam War. He argued that the law was unconstitutional both facially and as applied to freedom of speech. The Supreme Court disagreed and affirmed his conviction; also intertwined with symbolic expression o O’Brien tests three things to decide of something is content neutral:  Is not intended to suppress speech,  Advances an important or substantial government interest, and  Is narrowly tailored to achieve that interest with only an incidental restriction of free expression o Content-based or neutral?  Chicago Police vs. Mosley: Chicago ordinance prohibits picketing or demonstrations within 150 feet of a school building while in session, except for peaceful picketing in connection with a labor dispute.  Content-based under strict scrutiny. The argument to rule Mosley’s protest as unconstitutional was not based on what she was doing, but rather on the actual content of the protest. o Content-based or neutral?  United States v. Playboy Entertainment Group, Inc.: Federal government passes law requiring that cable companies act to ensure that no unauthorized receipt of sexual images occurs.  Content-based – the case focuses on the content o Content-based or neutral?  Michigan State University “spam” case: A student government official, Kara Spencer, faces suspension for having emailed 391 carefully selected professors about proposed changes to the campus calendar. MSU’s anti-spam policy bans unsolicited emails to more than about 20-30 people over two days.  Content-neutral: the case was not based on the content of the emails, but on the amount of professors that received the email o Court Scrutiny: Judicial Review o Special treatment for journalism?  Justice Stewart: A free press was not just a neutral vehicle for the balanced discussion of diverse ideas. Instead, the free press meant organized, expert scrutiny of government. The press was a conspiracy of the intellect, wit the courage of numbers. This formidable check on official power was what the British Crown had feared – and what the American Founders decided to risk. o Ch. 2 cases for study:  Near v. Minnesota  Facts: The Saturday Press published attacks on local officials. The Press claimed that the chief of police had “illicit relations with gangsters.” Minnesota officials obtained an injunction in order to abate the publishing of the Press newspaper under a state law that allowed this course of action. The state law authorized abatement, as a public nuisance, of a “malicious, scandalous and defamatory newspaper, or other periodical. A state court order abated the Press and enjoined the Defendants, publishers of the Press (Defendants), from publishing or circulating such “defamatory and scandalous” periodicals.  Issue: Is a statute authorizing such proceedings consistent with the conception of the liberty of the press as historically conceived and guaranteed?  Rule of Law: The freedom of press is essential to the nature of a free state but that freedom may be restricted by the government in certain situations.  Analysis: The Supreme Court in this case extended the presumption against prior restrain in the licensing context to judicial restraints as well.  Conclusion: No. Judgment of the state court was reversed. This statute does not operate as a pervious restraint on publication within proper meaning of that phrase.  New York Times Co. v. United States  FIRAC: o Facts: The petitioners, the New York Times and The Washington Post, sought to print the Pentagon Papers in their newspapers. Arguing that insurrection may arise from the publishing, the Respondent, the United States government, sought to enjoin the publication of the Papers. The Distrct Courts for New York and the District of Columbia, along with the DC Circuit Court of Appeals all held that the government did not meet the burden of showing justification for the imposition of an injunction. o Issue: Can the government, under the guise of national security, seek to regulate the activities of the press? o Rule of Law: The First Amendment freedom of the press should be afforded the greatest protection. An injunction that seeks to proactively quash speech is impermissible, unless imminent harm can be proven. o Analysis: (different opinions, see casebriefs) o Conclusion: Supreme Court ruled that the government could not justify a proactive injunction, under the impermissible doctrine of prior restraint. o Court Scrutiny: Judicial Review Level Govt. Related to Used with? interest interest Strict scrutiny Compelling Narrowly Content- tailored/least based restrictive Intermediate Important Substantially Content- scrutiny related/narrowly neutral, tailored for symbolic incidental effect content, public forums, etc. Rational basis Legitimate Reasonable Laws of review (even if not means to an general actual) end/rationally- application. related (can still E.g. econ or be stupid) commerce regs o Political Speech – speech that favors or disfavors a particular public issue; most valued type of speech for democracy  Elections and campaign finance  Buckley v. Valeo (1976) – the court held that both campaign spending and contribution limits directly implicate significant fundamental First Amendment concerns  BCRA (2002) – Bipartisan Campaign Reform Act, banned soft money contributions to national political parties and imposing limits on the amount and source of funds parties may accept and spend  FEC v. Wisconsin Right to Life (2006) – precursor to Citizens, ad hoc decision that said BCRA was essentially unfair  Citizens United v FEC (2010) – Supreme Court found the law’s restrictions (BCRA) on corporate and union election spending facially unconstitutional  v FEC (2010) – removed limits to giving donations from independent groups – led to Super PACS  These cases opened the door to indirect campaign donations  State limits on campaign financing  Randall v. Sorrell  Nixon v. Shrink Missouri Government PAC o Anonymous Speech – has an honorable tradition that is a shield from the tyranny of the majority; mostly protected by the courts but some circumstances when it’s not  McIntyre v. Ohio – McIntyre wasn’t happy about a school tax and passed out literature with her name and address on it, so she was fined. The Supreme Court said that the code is unconstitutional; reaffirmed the value of the anonymous speaker  Doe v. Reed – do citizens involved in political processes have an absolute right to secrecy? In Doe v. Reed, no – a group wanted to get their petition signatures private and the government ruled that the government interest is in seeing the signatures o Government Speech – speech by the government and government employees; the First Amendment limits government regulation of private speech but does not deal expressly with the issues raised when the government itself speaks  Pleasant Grove City v. Summum – SCOTUS established the power of government to select the monuments it chooses to display permanently in its public parks in response to a religious group challenging the city’s decision to not put something on display; court affirmed the right of the government to choose`  Garcetti v. Ceballos – distinguished work-related communications from independent government employer speech, particularly political speech; ruling came after LA County deputy district attorney Richard Cebellos wrote to his superiors recommending dismissal of criminal charges because of alleged inaccuracies. Ceballos was reassigned and filed suit claimed that the reassignment was because of the letter – the Supreme Court agreed with the government that it has jurisdiction over employees o Public and Non-Public Forums  Traditional public forums – government property held for use by the public, usually for purposes of exercising rights of speech and assembly  It is a right of the people to discuss what they want in public places. “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”  Designated public forums – government spaces or buildings that are available for public use (within limits); for example, when a city school board says the public may use school buildings outside of school hours for activities that are suitable for the space  Private property as a public forum – when the open area of an enclosed shopping mall or a large private parking lot is used widely for public assembly and expression, the Supreme Court has said the private property owner sometimes may be required to allow public gatherings and free expression, but the law on this is unclear  Virtual forums – when government funds support general speech and associational activities, the government may not discriminate on the basis of the ideas expressed; selection criteria must be neutral in terms of message content  Laws of general application that distribute tax obligations or benefits may not, for example, disfavor large newspapers, general interest magazine or commercial publications o Compelled Speech – close to government speech, just more personalized  “Live Free or Die” – a New Hampshire law made it a crime to remove or cover up the state slogan on a vehicle license plate, and the Supreme Court protected the individual’s right to refrain from speaking  Boston’s St. Patrick’s Day parade – the organizers of the parade refused to allow an alliance of LGBT individuals to participate, and the allegiance sued on the basis that the parade violated freedom of speech, and the courts rejected them  More recent compelled speech case: Freedrick’s case (not on exam) o Cases – FIRAC  New York Times Co. v. United States  FIRAC: o Facts: The petitioners, the New York Times and The Washington Post, sought to print the Pentagon Papers in their newspapers. Arguing that insurrection may arise from the publishing, the Respondent, the United States government, sought to enjoin the publication of the Papers. The District Courts for New York and the District of Columbia, along with the DC Circuit Court of Appeals all held that the government did not meet the burden of showing justification for the imposition of an injunction. o Issue: Can the government, under the guise of national security, seek to regulate the activities of the press? o Rule of Law: The First Amendment freedom of the press should be afforded the greatest protection. An injunction that seeks to proactively quash speech is impermissible, unless imminent harm can be proven. o Analysis: in a pure plurality, the Supreme Court held that the government could not justify a proactive injunction, under the impermissible doctrine of prior restraint. Prior restraint stands for the principal that an action cannot be restrained prior to its happening, on theory that it may cause harm. o Conclusion: Supreme Court ruled that the government could not justify a proactive injunction, under the impermissible doctrine of prior restraint. Chapter 3  National security and tranquility – if the harm from some type of speech is likely to be cataclysmic, society’s interest in preventing the crisis is more likely to outweigh concerns about protection of speech. The problem is that the gravity of the harm caused by the speech cannot be known in advance o Threats to national security  Anti-terrorism laws: material support – in 2010, the Supreme Court ruled 6-3 that a 1996 federal ban on material support of terrorist groups did not violate the First Amendment  Money is protected speech for campaigns but not for terrorist groups identified by the State Department; or training, if you provide training from a group, they can use other money for weapons  Holder v. Humanitarian Law Project – a nonprofit organization established to protect human rights and promote peaceful conflict resolution sought a court injunction to prevent application of the ban to their proposed training of members of the Kurdistan Workers Part, the PKK, which the gov. designated a terrorist organization; the Supreme Court voted in favor of the ban, saying that it played a critical role in our fight against terrorism  Content-based and should be strict scrutiny  Jeanine presentation  Twitter was sued by a woman in California. Her husband died in a lone-wolf attack in Jordan, saying that Twitter is providing material support to ISIS  Tamara Fields  The U.S. government has asked Twitter to take down accounts 25 times in the past 6 months, and Twitter is following the Communications Decency Act  USA Patriot Act – The Uniting and Strengthening American by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001; Passed in the wake of 9/11 attacked, the act was designed to give law enforcement agencies greater authority to combat terrorism o Amends 15+ statutes: criminal procedure, computer fraud, foreign intelligence, wiretapping, and immigration o Sections 206: roving wiretaps and secret court orders to monitor electronic comms of people in the US; o Sections 214 and 216 expand authority for Internet monitoring in all criminal investigations; o Section 215 relaxes oversight of search warrants on business, medical, educational, library and bookstore records o Section 215 gag order (orders silence, essentially), bans anyone served with one of these search warrants to disclose what has taken place  From National Security to Public Order o Court leans against protecting speech that is “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order” – Chaplinsky  Court Tests to Protect Disruptive Speech o Clear and present danger test: WWI – Cold War: doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm  Schenck – Charles Schenck, a member of the Socialist Party, mailed 15,000 anti-draft pamphlets to men in Philly; he was convicted of violating the Espionage Act of 1917, which was enacted to unify the nation behind war effort…the Court said that the mailing had bad tendency and posed a clear and present danger to national security; by analogy with the falsely screaming “fire” in a crowded movie theater would cause panic and is similar to causing panic during the war  Debs – Socialist Party leader Eugene Debs was convicted of an attempt to cause military insubordination and to obstruct the draft for giving a speech at a Socialist Party convention opposing the government’s war policy; the court ruled that there was intent and likelihood that his speech would harm the war effort  Abrams – Jacob Abrams and four friends dropped leaflets from a NYC skyscraper urging workers to unite to oppose the hypocrisy of the U.S. and her allies; Justice Holmes said the publishing of a silly leaflet by an unknown man didn’t pose a substantial threat or danger; this 1919 dissent marked a transformation in interpretation of First Amendment  Gitlow – Benjamin Gitlow, business manager of a branch of the Socialist Party, oversaw publication of party literature urging class action to establish socialism in the U.S…the court sentenced him to prison without evidence that the pamphlets caused harm, and on the basis that they endangered the foundations of organized law; Gitlow was used to expand free speech by establishing the doctrine of incorporation (limits power of state and local governments to abridge the guarantees of the Bill of Rights)  Whitney – 1927, 64-year-old female labor activities participated in Communist meeting and the Court accepted without evidence that her membership in the party was sufficient to pose a danger that was imminent  Smith Act – 1957, clear and present danger is pretty much flushed out, the Smith Act made it a crime to overthrow the government; the Court upheld the Smith Act only if the law did not just punish mere expression  Court Tests to Protect Disruptive Speech o Brandenburg (or incitement) test: 1969, replaced clear and present danger standard; Advocacy of illegal action may be punished if the speech is  Directed toward inciting  Immediate,  Illegal action, and  Is likely to produce that action  Brandenburg v. Ohio - Clarence Brandenburg, a television repairman and KKK leader, made nonspecific threats to take vengeance against various leaders in government (was broadcasted), and he was convicted based on intent to overthrow the government. The Supreme Court acknowledged that his speech was offensive, but that the First Amendment protects people’s right to advocate ideas about social, political and economic change  Government is more interested in action than they are speech  This test is a much higher standard for prosecuting  Speech assaults o Offensive speech – there’s not constitutional right against being offended, lol  Obscenity  Cohen v. California – antiwar protest, Paul Robert Cohen wore a jacket in the LA Courthouse bearing the phrase “Fuck the Draft” and was convicted for offensive conduct/disturbing the peace o The Court said that the First Amendment protected both the content and the emotional value of the message; it’s not simply what you say but how you said it that enjoys constitutional protection  Fighting words – words that are meant to start a fight; words not protected by the First Amendment because they cause immediate harm or illegal acts  Chaplinsky v. New Hampshire – see earlier notes on this case, but it was the Jehovah’s witness calling the officer a damned Fascist  Terminiello v. Chicago – 1949, the Supreme Court heard the case of a priest whose anti-Semitic and pro-Fascist comments to a sympathetic audience riled a group gathered outside the assembly hall, and when the crowd became violent, the officer was arrested. The Supreme Court reasoned the a function of free speech under our system of government is to invite dispute  Hate speech – not designated as a protected speech; a category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like  R.A.V. v. St. Paul – several white teenagers made a crude wooden cross from a broken chair and set it ablaze in the yard of a black family – the Supreme Court all said that the ordinance was too narrow – it etched out a category of fighting words. Instead of banning fighting words, the law banned a subset of fighting words. Effect of this: viewpoint ban  Current standard – the Court has tended to judge the constitutionality of laws that attempt to regulate highly volatile speech directed at specific individuals on the basis of the reach of the law; what we really care about is the violence/action aspect more so than the expressive function  Intimidation and threats  Virginia v. Black – there was a specific ban on cross burnings, and the Court said that when the limit is on a true threat, the threat must be directed to one or more individuals and then intent should be for the victim to fear; 2003, the Court ruled that states may punish KKK and others who set crosses ablaze if the intent is to intimidate someone  University of Michigan student posting story – Michigan student posted an allegedly fictional story on the Internet that described the torture, rape and murder of a woman (the woman had the same name as one of the author’s female classmates; the Court let him go because there was no imminent threat or intent to carry out any violence  UnWANTED posters – several abortion clinicians in the 1990s were murdered, previously identified on an unWANTED list, offering rewards for those who “removed” the doctors from their professions – the Court ruled against the list/ACLA because the threats conveyed serious harm  Jamie R. presentation  Anthony Douglas Elonis v. United States  Elonis was fired for being a carnie, made Facebook posts about how he wanted to kill his coworkers and his wife  Made another Facebook post about a school shooting on elementary school  FBI gets involved and searches his house  Indicted on 4 of 5 charges on True Threat Doctrine  The person has to actually understand that they’re committing a crime o Symbolic speech  Burning speech  Texas v. Johnson – Supreme Court employed strict scrutiny to strike down a Texas law that made it a crime to desecrate the flag  “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” – Justice William Brennan o Speech in the Schools  Protest in the schools  Tinker v. Des Moines Independent Community School District – junior and senior high school students silently wore black armbands to school to protest the Vietnam War. The school suspended them for violating a new school policy prohibiting the wearing of black armbands; the Supreme Court agreed with the students that the bands were constitutional  Morse v. Frederick – Bong Hits 4 Jesus; displayed banner with the saying, and the school principal tore it down and suspended him for ten days, and while the district court sided with the principal, the Supreme Court reversed the ruling and said it should be viewed with strict scrutiny  Offensive or inappropriate content  Island Trees Union Free School District – school board in NY State removed 10 books from the school libraries on the basis on objectionable content, and several student sued. The Supreme Court said the book removal violated the First Amendment – the Supreme Court wants to see a content- neutral basis  Bethel School District v. Fraser – the issue of mandatory exposure to offensive speech in public schools; in a speech for student government, Matthew Fraser used metaphors for sexual virility, and the Supreme Court agreed that his suspension was fair, saying that when student speech occurs during a school- sponsored event, the student is speaking for the school  Hazelwood v. Kuhlmeier - 1983, principal removed two pages of the newspaper that contained a story about teen pregnancy and the impact of divorce on students, saying that the interviews invaded the privacy of students and contained inappropriate details for young readers; the Supreme Court said that the school administrators have authority to determined the appropriate content for school-sponsored papers – for university newspaper there’s a different standard  Compelled orthodoxy – Supreme Court said that students shouldn’t be forced to stop speech  “The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.” o More about speech in schools  Religion in the schools – some argue that the forcing of religious aspects on students violates the establishment clause  Campus speech – universities have a greater legal responsibility to maintain freedom forums; if the university defunds something, it has to be content-neutral (almost like a virtual forum because it’s about funding)  Speech codes – generally prohibited verbal harassment of minorities, hate-filled invective, bigotry and offensive speech on campus; courts found these codes unconstitutional because they targeted disfavored speech and reduced the flow of information and ideas, yet campus hate speech codes continue to be adopted o Sample test questions  Hate speech  Symbolic speech  Clear and present danger  Speech in schools  Texas v. Johnson  Hazelwood v. Kuhlmeier  R.A.V. v. St. Paul  Schenck v. United States o Cases for study  Texas v. Johnson  Facts: After publicly burning the American flag, the Defendant, Gregory Lee Johnson, was convicted of desecrating a glad in violation of Texas law. The Court Criminal Appeals overturned the conviction.  Issue: Does Johnson’s burning of the flag constitute expressive content, permitting him to invoke the First Amendment? Does the state’s interest in preserving the flag as a symbol of nationhood justify Johnson’s conviction?  Rule of Law: The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. It is not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is invalid.  Analysis: Since Johnson was burning the glad as part of a political demonstration, his actions constituted as expressive conduct and thus permitted him to invoke the First Amendment. The state’s restriction on Johnson’s expression is content-based, and therefore the state’s asserted interest in reserving the special symbolic character of the flag must be subjected to the “most exacting scrutiny.”  Conclusion: It was for Johnson’s use of this symbol, not the idea that he sought to convey for which he was convicted. The interest of preserving the flag as a symbol of nationhood is legitimate and justified his conviction. Johnson won over Texas in the Supreme Court.  Tinker v. Des Moines Independent Community School District – strict scrutiny  Facts: Tinker was a high school student who joined his parents in protesting the Vietnam War. The form of protest was to wear a black armband for a period of two weeks during the holiday season. When Tinker arrived at school he was told to remove the armband or be suspended. He took the suspension and did not return to school until the protest period ended on New Year’s Eve 1965.  Issue: Is symbolic speech by public school student protected under the First Amendment?  Rule of Law: Student speech may be regulated when such speech would materially and substantially interfere with the discipline and operation of a school.  Analysis: The dissent – students are not wise enough to support or reject a cause, and it is best to leave the order of education to the administrator’s judgment. Discussion – the wearing of the armband was singled out of all other symbolic speech engaged by the student body. There was no evidence that the wearing of the armbands caused any disruption of any class or school function, and it is therefore constitutional.  Conclusion: The Supreme Court held that students are persons worthy of constitutional protections both while in school and out of school. Chapter 4  Libel o Background – Western civilization and ancient Greece, along with 15 - th century England had prosecuted people for prosecuting on the basis of reputation-damaging remarks  Protecting reputation– libel law is meant to protect an individual’s reputation and allows the person to ask for damages in an effort to obtain monetary compensation and to restore his or her reputation  Seditious libel – communication meant to incite people to change the government; criticism of the government  Sedition Act of 1798 – Federal legislation under which anyone “opposing or resisting any law of the United States, or any act of the President of the United States” could be imprisoned for up to two years. The act also made it illegal to “write, print, utter, or publish” anything that criticized the president or Congress. The act ultimately was seen as a direct violation of the First Amendment and expired in 1801.  Chilling effect – a form of prior restraint that recognizes that laws punishing behavior after it takes place will also likely deter, or chill, that behavior from occurring in the first place; chilling speech is often the goal of some defamation lawsuits  Damages – monetary compensation that may be recovered in court by any person who has suffered loss or injury. Damages may be compensatory for actual loss or punitive as punishment for outrageous conduct  SLAPPs  Strategic Lawsuits Against Public Participations – when chilling speech is used as a goal, libel law is used as a weapon to prevent speech from occurring in the first place – these are called SLAPP suits and are meant to silence critics  SRLE presentation o John and Mary Tatum’s son was in a single car accident that went into a telephone pole, somehow he went home, drank, and shot himself in the head. The parent’s paid for an obituary in the newspaper. A month later, the columnist wrote an article insinuating that the case was neglect and yadda yadda. The Tatums sued the Daily Morning Show – how they handled the case  Internet effects – new comments made to older messages in order to return them to prominent positions on a website keep the conversation alive, but these don’t count as republication. The Internet obviously has made it more difficult for people to keep track of what exactly is being published. o Libel defined: the Plaintiff’s Case  A statement of fact (not opinion)…  That is published…  Of and concerning the plaintiff (identification)…  That injures the plaintiff’s reputation (defamation)…  That is false…  And is the result of fault by the defendant o Publication  A third party must have seen/heard and understood the allegedly defamatory material  Courts assume that a third party has seen or heard material that was in a mass medium  Republication  Often what the media do  A republisher is as responsible as the originator  Readers always had the option of sharing an article even without the button – printing, email and other options still existed for sharing  When you’re sharing or retweeting, you’re republishing  Vendors and distributors  Sellers and distributors (e.g., a bookstore) are not expected to know the content of everything they distribute  ISPs are distributors, not publishers o Communications Decency Act (CDA) – The part of the 1996 Telecommunications Act that largely attempted to regulate Internet content. The CDA was successfully challenged in Reno v. ACLU o Reno v. ACLU – 1997, overturned the CDA. All nine justices agreed that the Act failed to clearly define “indecent” communications, and that its regulations that amounted to a content-based blanket of restriction of free speech were unconstitutional  Web platforms? o Blogs provide another example of publishers – a blogger is responsible for the material he or he posts, but it is questioned whether the blogger is legally responsible for them. A federal judge dismissed a libel claim against an anonymous posting, saying that the intent of the decision was to promote the free flow of info o Unknown publisher  Plaintiff must show:  As much of identity of the anonymous party with as much specificity as possible  Steps taken in the attempt to identify the anonymous defendant  Case is strong enough to withstand a motion to dismiss o Identification – the plaintiff has to show that there is standing, that they were materially effected by whatever happened  Is the material of and concerning the plaintiff?  Identification of a group member whose name is not used  25 or fewer group members  Fewer than 100 members  Identification in fiction - o Defamation  Injury to reputation  Libel per se – a statement whose injurious nature is apparent and requires no further proof; example: saying a teacher is a criminal  Libel per quod – a statement whose injurious nature requires proof  Slander per se – refers to certain language that is actionable as slander in and of itself without proof of special damages, such as the situation in which a person is falsely accused of having committed a crime  Business reputation – businesses and corporations also have the right to sue based on libel, as well as individuals within the company, or those within the company who may sue the business itself  Trade libel – criticism of products rather than peoples or businesses o Falsity – the plaintiff is responsible for demonstrating that the statement at issue is false  Substantially true – as long as the statement is substantially true, even if there is a minor error or discrepancy, it can still be true  “…would absolve a defendant even if she cannot justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge is proved true, irrespective of the slight inaccuracy in the details…Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting of the libelous charge can be justified.”  Implication and innuendo – through these, libelous messages may be created  Example: a crane operator sued a newspaper for what he said was implied in headlines: “Operator in crane wreck has history of drug abuse” and “Man completed mandated rehab program after his last arrest in 2000. The courts ruled that it was not a libelous statement because the paper didn’t omit any facts o Libel/Fault  Negligence – the minimal amount of fault that the plaintiff has to show in order to receive damages  New York Times v. Sullivan (1964) – prior to this case, fault was not an element of common law libel and marked a shift in our general First Amendment understanding  Actual malice o Knowing the information is false, or… o Reckless disregard for the truth o Level of fault: public official libel plaintiffs o “…debate on public issues should be uninhabited, robust, and wide open…[I]t may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” o “breathing space” o libel protection is “constitutionalized”  Levels of fault  Actual malice – in libel law, a statement made knowing it is false or with reckless disregard for its truth o Knowledge of falsity – publishing information knowing it is false o Reckless disregard for the truth – “sloppy” journalism – criteria:  Urgency of the story. Is there time to check the information?  Reliability of the source. Is the source trustworthy?  Believability of the story. Is further examination necessary?  Public vs. private plaintiff- the Supreme Court says that people who meet the definition of those among the “hierarchy of government employees who have or appear to have the public substantial responsibility for or control over the conduct of governmental affairs” are going to be out in the public, and therefore the people have the right to know about them o Bootstrapping – in libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit; occurs when media defendants “attach” themselves to the protection of the actual malice standard by citing media coverage of the plaintiff as evidence that the plaintiff is a public figure (see limited- purpose public figure)  Public figure – in libel law, a plaintiff who is in the public spotlight, usually voluntarily, and must prove the defendant acted with actual malice in order to win damages o Gertz v. Robert Welch, Inc. (1974) – the Court said that some people “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” o All-purpose (universal) – anyone whom a court labels to be “public” under all circumstances (required to prove actual malice) – ex: celebrities o Limited-purpose – those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved  Limited-purpose public figure checklist o Must step into the spotlight voluntarily o Must play a role in the resolution of an important public or social controversy o Tries to influence public opinion in the resolution of the issue (access to the media)  Involuntary public figures – a person who does not necessarily thrust himself or herself into public controversies voluntarily but is drawn into a given issue  Losing public-figure status – to lose this status, the plaintiff must demonstrate not only that he or she is no longer a subject or public concern but also that his or her libel claim is not connected to events or controversies of which the public remains aware  Private figures – a libel plaintiff who does not qualify as a public official or public figure (not required to prove actual malice, but negligence)  Nature of the statement – whether a plaintiff is considered a public figure can depend on whether the material being published relates to a matter of public concern o Damages  Actual – most common; they represent that quantity of the harm actually suffered by the plaintiff, who is required to produce evidence showing the monetary loss (tends to be imprecise because its hard to say how much humiliation/mental suffering the plaintiff experienced)  Special – there is an exact monetary figure. The reason why this isn’t actual is because people rarely seek special damages, so they’r


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