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UF / Journalism Core / JOU 4200 / What are the three important reasons to study media law?

What are the three important reasons to study media law?

What are the three important reasons to study media law?


School: University of Florida
Department: Journalism Core
Course: Law of Mass Communications
Professor: Sandra chance
Term: Winter 2016
Tags: media law, Law, mass communication, law of mass communication, first amendment, court systems, and SCOTUS
Cost: 50
Name: MMC 4200 Exam 1 Study Guide
Description: Chapters 1-4. Chapter 1: The court system, the Supreme Court of the United States, introduction to First Amendment issues. Chapter 2: Jurisdiction, the top 10 landmark cases for the First Amendment,
Uploaded: 02/08/2016
20 Pages 17 Views 20 Unlocks

Exam 1 Study Guide

What are the three important reasons to study media law?

Exam 1: Thursday, February 11, 2016 at 4:05pm.

Professor Sandra Chance

Covering Chapters 1-4

Chapter 1 — Public Communication and the Law 

• Questions:  

1. Why is it important to study media law?  

o There are three reasons:  

1. Laws change, sometimes overnight

2. Situations can change the outcomes of a legal case

3. Laws can differ (and do) from state to state

2. Where do laws come from?  Why do we have laws?  What are the sources of our laws?  o There are six places that laws come from:  

▪ U.S Constitution & Sate Constitution

What is a nonpublic forum?

▪ Statutes

▪ Administrative Agencies

▪ Executive Branch

▪ Common Law

▪ Law of Equity

o We have laws for two reasons:  

▪ To ensure freedom (Bill of Rights) and limit government control over our lives  (this is a “positive” reason)

▪ To provide stability, order and security by controlling and punishing certain  behavior (this is a “negative” reason) If you want to learn more check out Where does erythroxylum coca grow?
We also discuss several other topics like What is the munich agreement?

o There are three sources for our laws:

▪ Statutes  

▪ Administrative Law

▪ Common Law

3. How are courts structured?  What is the difference between federal and state systems and  trial and appellate courts?  What is jurisdiction?  Why is it important?  

What are the elements of a defamation lawsuit?

If you want to learn more check out What is interpolation?

o Our courts are structured between two different systems:  

▪ State courts:  

▪ Trial Court (District/Circuit Court)

▪ Appellate Court

▪ Supreme Court

▪ Federal courts:  

▪ U.S. District Court

▪ Court of Appeals

▪ U.S. Supreme Court

o Trial vs. appellate courts:  

▪ Trial courts are the first courts that a case go to on in both the federal and state  court systems. (All cases start at this level.) Don't forget about the age old question of What is the meaning of the bill of rights?

▪ These cases include either a judge or a jury, depending on the issues, and are  where evidence and exhibits are presented and witnesses are called.

▪ Trial courts are the only place where juries are involved.

▪ Appellate courts are where a case goes when the original ruling is appealed by  one of the parties involved in the case.

▪ These courts are presented to a court, who review the things that were already  presented and makes a decision about the case. The appellate court can:

▪ Uphold the ruling of the trial court

▪ Reverse the ruling of the trial court

▪ Remand the trial court

• This is when the appellate court sends the case to the trial court  

with instructions about how to reconsider the case.  

• The instructions can include reviewing a case with a different  

interpretation of a law, including a law in the consideration that  

wasn’t considered before, or to remove or include pieces of  Don't forget about the age old question of What is real-time marketing?

evidence from consideration.

o Cases go to federal or state systems based the jurisdiction of the case (the main  difference is what jurisdiction a case falls under)

▪ Territory — state laws start in state court, federal laws go directly to federal  court

▪ Subject matter — if a state law violates the U.S. Constitution, the case can begin  in federal court

▪ Federal courts always interpret the U.S. Constitution

▪ Federal courts also take cases between citizens of different states

o Jurisdiction is the authority of a court.  

▪ A court has jurisdiction over a subject when the constitutions or statutes in  place give it power to decide cases about the subject

▪ Federal courts have jurisdiction about broadcast matters (including cable television issues), copyrights, and patents If you want to learn more check out What is deutscher werkbund?

▪ Federal and state courts share jurisdiction of trademarks, corporate speech,  advertising regulations, anti-trust laws, and obscenity.

▪ State laws cannot conflict with federal laws  

▪ State courts have jurisdiction about privacy torts, libel, and citizens getting  access to meeting records

o Jurisdiction is important because it decides what court hears a case, as well as who a  case goes to when it is appealed.  

4. What is the difference between civil and criminal cases?  How do cases proceed through the  criminal justice system?  How do disputes proceed through the civil system?  o The difference between civil and criminal cases:  

▪ Criminal cases: government enforcing criminal statutes (jail time or a fine) ▪ Civil case: disputes between citizens (involving money)

o Cases proceeding through the criminal justice system:  

▪ Investigation

▪ Arrest

▪ Preliminary hearing: to determine if there is probable cause (and bail is set) ▪ Indictment: a formal accusation by the grand jury

▪ Arraignment: a formal reading of the charges presented

▪ Dismissal or trial

o Disputes proceeding through the civil system:  

▪ Plaintiff sues the Defendant for damages (files a civil complaint)

▪ Defendant is served with summons

▪ Discovery: gathering information about the complaint

▪ Answer: the Defendant responds to the complaint

▪ Judgement or Summary Judgement

5. Be familiar with the legal terms in the handout and that we discussed in class (like writ of  certiorari).  

o Criminal terms:  

o Verdict: The formal and unanimous decision or finding made by a jury,  

reported to the court and accepted by it.  

o Prosecution: A process against a defendant for an alleged criminal action. o Grand Jury: Citizens, whose number varies from state to state, who  

determine whether probable cause exists that a crime has been committed  and whether an indictment should be returned against someone for a  

crime.  Selected randomly and these jurors usually serve for a “term”  

sometimes months, even years.

o Prosecutor: One who takes charge of a criminal case and performs function  of the trial lawyer for the people and prosecutes in the name of the  


o Indictment: Issued by grand jury charging a person has committed some  crime.  

o Defendant: Person defending or denying charges.  In criminal case, person  accused of a crime.

o Arrest: To deprive a person of his/her liberty by legal authority by taking  custody for the purpose of holding him/her to answer a criminal charge or  

civil demand.

o Probable Cause: Legal standard used by judges, law enforcement and grand  juries to believe that the accused person in a criminal case had committed  

the crime charged, or in a civil case, that a cause of action existed.  Hearing  

where state must show sufficient evidence to continue hearing.

o Arraignment: Formal reading of the charges (must generally happen within  24 hours of the arrest).

o Plea Bargain: Process by which prosecutor and defense counsel attempt to  resolve case by guilty plea with an agreed upon sentence to be submitted to  a trial judge for approval or disapproval.

o Bail: Money used to get out of jail.

o Civil terms:  

o Pleadings: Official documents filed with the Court.

o Plaintiff: The party bringing the lawsuit, filing the legal case.

o Jury: Certain number of men and women selected according to the law and  sworn to make decisions based solely on evidence presented in court.  Trier  of fact.

o Appellant: Person who files an appeal.

o Appellee: Person against whom appeal is taken.

o Petitioner: Person who petitions the court to take an action.  For example,  initiates an appeal.

o Respondent: Person who responds to a petition.

o Discovery: Process designed to gather information about the complaint.   Documents are exchanged, depositions are taken, interrogatories are  

drafted and answered.

o Complaint: The first pleading filed by the Plaintiff.  Sets out the cause of  action, the legal issues and request for damages or compensation.

o Answer: Response by Defendant, either admitting or denying the complaint. o Summons: A writ directing the sheriff to notify person that an action has  been filed in court and that he/she is required to appear on a certain date  

and answer the complaint.

o Subpoena: A process which commands that a witness appear and give  

testimony before a court or at a deposition.

o Defendant: Person being sued.

o Summary Judgment: A ruling by the judge that there is no dispute as to  material facts and that one party should win the case as a matter of law.  

Precludes a trial.

o Other terms:  

o Writ of Certiorari: Written petition to Supreme Court to review case; the  beginning of the Supreme Court review process

o Briefs: Pleadings filed by attorneys; the initial legal argument

o Remand: Sending the case back down to lower court from an appellate  court with instructions on how to proceed with the case

6. Remember our discussions about the Supreme Court - their review process, how justices are  appointed, why their decisions are important.  What is the difference between a majority,  plurality, dissenting, and concurring opinions?  What is stare decisis? What do precedents  mean? Why are they important?  

o The Supreme Court review process:  

▪ Begins with a petition- someone asking review

▪ 1 defense and 1 prosecuting attorney argue with 9 justices for 30 minutes ▪ After trial, justices decide in private together

▪ One justice writes opinion (longest process)

▪ PIO releases opinions to press in June (Judgement Day)

o The nine United States Supreme Court Justices are appointed for life by the President of  the United States (but the Senate has to confirm them).  

o The number of State Supreme Court Justices varies from state to state (Florida has 7).  These justices are appointed by Democratic election for a term set by the state (6 years  in Florida).  

o Supreme Court justice rulings are important because the rulings can establish  precedents (where a future case is ruled on based on an earlier case).  

o Different justice opinions:  

▪ Majority: a minimum of 5 justices must be in agreement (in the SCOTUS). An  opinion is written about why the justices ruled in such a manner.  

▪ Plurality: there is no majority; the court is split in a way that has the same  outcome of the case, but some justices have different reasons than others.  ▪ An example of this would be a 4-3-2 split, where two of the groups  

agree on the ruling but have different reasons for doing so

▪ When this is the case, the individual/smaller groups of justices all write  

their own opinions to state why they ruled the way they did

▪ Dissenting: the opinion from the minority (losing) side of the case. This can be  helpful in overturning a ruling, even years later.

o Stare decisis means “let it stand.” This is a legal principle used when judges decide to  adhere to a precedent (a ruling from a previous/similar case). This is very binding for  future decisions that are made.  

o Precedents are cases that help establish the legal principle of stare decisis.  o They are important because it gives a legal foundation for cases in the future to lean one  way or another when it comes to making a decision. They add stability and predictability  to the legal system.

• No Important Cases for this chapter

Chapter 2 — The First Amendment 

• Questions:  

1. What is it?  

o The First Amendment is the first addition listed on the Bill of Rights to the Constitution  of the United States of America.  

o Text: "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 It was passed because citizens were concerned about government having the power to  invade and interfere with their lives.

2. What does it protect?  

o The rights of citizens to have freedom of:  

▪ Speech

▪ Religion

▪ Press

▪ Assembly

▪ Petition

3. Why is it important?  

o It protects the rights of all citizens, especially communicators.

o It ensures that our government is run like a democracy (people are free to express their  opinions and criticize the government if they need to).

o It is an effective check on government power: it ensures that officials have no power  over most kinds of speech (especially speech in the press).

4. What are the theories of freedom of expression?  Know the theorists and their major ideas.  o Marketplace of ideas/attainment of the truth

▪ "Good ideas and the truth prevail in a free market." — John Milton

▪ He wrote this as part of "Areopagiticia," a brochure which told why it is  

important to allow for divorce

▪ Idea: when there is freedom for both truth and lies to be told, the truth will  always rise to the surface and be known.

o Governance

▪ "Informed citizenry will intelligently elect its leaders." — Alexander Meiklejohn ▪ Idea: allows citizens to be informed about what government is doing will lead to  them intelligently electing the best leaders.

o Check on Government power

▪ Idea: Protect the powerful media that "check" government's power

▪ All forms of media are important because of their investigation and criticism of  government

▪ Theorist: Professor Vincent Blasi

o Change with stability

▪ "Helps let off steam and supports a stable and adaptable community which  contributes to orderly change."

▪ Idea: with freedom of expression, we can write and discuss things to let off  steam rather than fighting over it.

▪ Theorist: Professor Thomas Emerson

o Fulfillment

▪ "The need to express ourselves is natural and enriches our lives."

▪ Idea: people are happiest and most fulfilled when they can express themselves  freely

▪ Theorist: Professor Laurence Tribe

5. What is the scope of protection under the First Amendment?  

o Doesn't protect all speech absolutely, but all forms of speech are protected o Things that are NOT protected: endangering national security, inciting a riot, fighting  words, infringements on copyright

o Does absolutely protect speech critical of government.

6. What kinds of regulations are/are not permissible?  

o Where governmental regulations (including those of school boards, government  agencies, police departments, etc.) restrict the content of political, social and artistic  expression, judges must use STRICT SCRUTINY.

o Content regulations are not permissible, unless the government has a COMPELLING  interest and the regulation is NARROWLY TAILORED and is not OVERBROAD or VAGUE. 7. Understand the hierarchy of protected/non protected speech.

o Level 1 Speech: Political, social and artistic expression

▪ Very protected.

▪ Analyzed via STRICT SCRUTINY

▪ Judges must scrutinize regulations for OVER-BREADTH, VAGUENESS and ensure  LEAST-DRASTIC MEANS to accomplish a COMPELLING government interest.

o Level 2 Speech: Commercial and sexual expression

▪ Can be more easily restricted

▪ Analyzed via RATIONAL BASIS test

▪ Indecent speech is protected, but obscenity (flashing someone) is not

o Level 3 Speech: Fighting words, threats, obscenity, false advertising

▪ No protection

▪ Not reviewed with strict scrutiny

8. What is the clear and present danger test?  How is it used by the courts today?   o First stated by Justice Oliver Wendell Holmes in Schenk v. United States (case  concerning a printed pamphlet urging people to resist the draft. It failed the clear and  present danger test).

o Expression should be punished only when words "are used in circumstances and are of  such a nature as to create a clear and present danger that they will bring about the  substantive evils that Congress has a right to prevent."

o Has to be imminent unlawful force, E.g. timely danger is about to happen.

o Test provides more protection for freedom of expression by prohibiting speech only  when there is evidence that it will incite a lawless action.

o Courts now use a balancing test which court weighs interests in free speech against  conflicting social interest.

o Gives judges flexibility and makes First Amendment protection unpredictable. 9. Who is protected - adults/children/corporations?  

o Adults - have much broader rights than children, teenagers, and students ▪ 1) The right to speak and publish

▪ 2) The right to associate (Pick who your friends are, join certain clubs)

▪ 3) The right to receive information (If you are in the business of providing  information, the consumers have a right to receive that information)

▪ 4) The right to solicit funds—Charity organizations have a right to ask for money ▪ 5) Freedom from compelled speech

▪ Case: Miami Herald Publishing Co. v. Tornillo 

▪ People can't make you speak unless you're testifying

o Corporations- Can participate in elections and give $ to candidates

o Government- May speak and vote as private citizens but can't participate in political  campaigns

10. What are the First Amendment rights of high school students?  How can they be restricted?   How is this different for college/university students?  

o First Amendment rights are weak at public high schools. (called the Hazelwood  Standard)

o Case: Hazelwood v. Kuhlmeier: Any school-sponsored expression can be censored,  including any expression that the public may relate to the schools.

o College/University students enjoy more freedom, as the same rules apply to the larger  community.

o However, in Hosty v. Carter the Court ruled that university students have no more  freedom from administrative censorship than high school students; it applied the  Hazelwood Standard

11. What are "fighting words?"  Understand the concept of “hate speech” and the First  Amendment.  Are threats protected under the First Amendment?  

o Fighting words are NOT protected by first amendment

o Words that "by their very utterance inflict injury or tend to incite an immediate breach  of the peace."

▪ Cases: Chaplinsky v. New Hampshire-- said cop was “a goddam racketeer and a  fascist.” (These are fighting words); Cohen v. California “F--- the draft” (NOT  fighting words.)

o Protected by the first amendment:

▪ Written or spoken words that insult and degrade groups identified by race,  gender, ethnic group, religion or sexual orientation.

▪ Most expression of bigotry and prejudice is political speech protected by the  First Amendment, according to U.S. Supreme Court.

o However, when hate speech becomes fighting words, then they lose their First  Amendment protection.

▪ Fighting words incite immediate violence, and are not protected.

o Threats are also NOT protected under the First Amendment.

12. Know the history of the First Amendment that we covered in class.  

o Government has historically tried to control speech and press

o The purpose of the First Amendment was originally to prevent prior restraints o It was ratified in 1791

o It was originally 3rd Amendment but the first two didn't pass

o It was written by James Madison, "the father"

o The Bill of Rights is the Constitutional protection to set limits on government 13. Understand the judicial decision-making process.  

o 1. Judges have a natural bias against content regulation (because it goes against the  First Amendment)

o 2. Judges tend NOT to defer legislatures and lower court decisions which restrict free  speech

o 3. Judges must apply 1 of 2 "Standards of Review" when judging a case:

▪ Strict scrutiny- looks at fundamental rights (hard to prove)

▪ Rational basis- looks at other laws (government just has to show they have a  reason for regulating speech.)

o 4. Judges must scrutinize regulations for OVER-BREADTH, VAGUENESS and ensure that  it is the LEAST-DRASTIC MEANS to accomplish a COMPELLING government interest. 14. What is strict scrutiny?  When is it used?  

o Strict scrutiny is a test that judges must use during due process.

o It is used when when government tries to restrict or ban the CONTENT of expression  (the content of political, social and artistic expression) (Level 1 Speech).

o It is used to ensure the government regulations are justified by a COMPELLING interest  and the regulation is NARROWLY TAILORED and is not OVERBROAD or VAGUE. 15. What standard is used when examining commercial and sexual expression?  o Commercial and sexual expression are under level 2 of the hierarchy of protected  speech.  

o Both commercial and sexual expression still includes First Amendment protection, but  not as much; the protections aren't as broad or inclusive

o Gets a rational-basis test: "if the legislature has a pretty good reason to restrict the  speech, then that's good enough for us"

16. Understand the concepts of vagueness, overbroad and under-inclusiveness.  o Overbroad: Legislation that is unconstitutional because it restricts more expression  than necessary; it prohibits too much speech

o Vagueness: Legislation that is unconstitutional because average persons would not  know ahead of time whether their expression would violate the law; it is written  unclearly or in a way that is too confusing to understand

o Under-inclusiveness: Legislation that is unconstitutional because it punishes only one  person or group when it should publish more. (This is the opposite of being overbroad.) 17. How are different mediums protected under the First Amendment?  Which one enjoys the  highest level and why?  What are the different levels of protection for the press, broadcasters,  cable operators, telephone companies, and the Internet?  

o The Press, Broadcasters, Cable, Telephone, and the Internet are all protected. ▪ The press has the most freedom here, it has historically been found on the right  side of the law, and it cannot be told what to print.

▪ Telephone and ISP's (Internet Service Providers) also receive a great deal of  freedom (treated as pipelines, not controllers of speech)  

▪ The internet is highly unregulated.

▪ The 1996 Telecommunications Act protects ISP when 3rd parties post  

libelous electronic messages, even if the provider acts as a "publisher"

and attempts to screen libelous and obscene messages. They cannot  

hold ISP's responsible. The person who says it can still be held  

responsible however.

▪ Cable has more freedom than broadcasters but less than publishers

▪ Broadcasters are very highly regulated as they are so intrusive into people's  homes.

o The Press has the most freedom, as the First Amendment specifically defends it. 18.  What did the U.S. Supreme Court say about the constitutionality of a statute which regulated  depictions of animal cruelty?  

o In U.S. v. Stevens, the Supreme Court said that you can't restrict it because: ▪ It is overbroad.  

▪ It would punish lawful speech due to "alarming breadth."  

▪ It would regulate too much speech.

• Important Cases:

o Near v. Minnesota  

▪ Prior restraints started here.

▪ Court broke down the government ability to stop the presses.

▪ A Minnesota statute put publication restraints on "malicious, scandalous or  defamatory" publications.

▪ Publisher had to prove good motives, justifiable ends and truth to publication  (Hard to prove)

▪ The Supreme Court struck down state statute for violating the freedom of the  press.

▪ 14th Amendment says state law can't abridge free speech

▪ Chief Justice Charles Evans Hughes said, "Liberty of the press, and of speech, is  safeguarded by the due process clause of the Fourteenth

▪ Amendment from invasion by state."

o Miami Herald v. Tornillo  

▪ Miami Herald refused to publish a reply to paper's criticism of Pat Tornillo, a  political candidate.

▪ Tornillo sued, trying to enforce Florida's "right to reply" statute.

▪ Supreme Court denied Tornillo his claim AND struck down the statute.

▪ SCOTUS said that government cannot COMPEL newspapers to speak or to print  certain things. (If we allow the government to dictate what gets to be printed,  

they could be forced to support certain views.)

o Cohen v. California 

▪ Cohen wore in a courthouse a jacket that read, "F--- the Draft." (Vietnam).

▪ He was arrested for “fighting words.”

▪ Supreme Court overturned because was NOT fighting words but rather a  

protected comment on an unpopular war, so there was no immediate danger of  a violent physical reaction.

▪ Concern: Protection of freedom of expression.

o U.S. v. Stevens  

▪ Federal statute punished "Crush Videos"

▪ Stevens filmed dog fights and sold them so congress passed law restricting  animal cruelty on video. Law was overbroad

▪ Stevens was convicted, appealed and won.

▪ U.S. Supreme Court ruled restriction as overbroad

▪ Justice Roberts said it punishes lawful speech due to it's "alarming breadth" o Hazelwood v. Kuhlmeier 

▪ Hazelwood decision allows officials to regulate high school expression ▪ Student newspaper interviewed students about controversial topics.

▪ Principal deleted 2 stories from newspaper.

▪ Court upheld, speech is not protected if it interferes with the ability to teach. ▪ The paper was produced in a class supervised by a teacher, not a public forum  that school officials would be prohibited from regulating.

▪ The school can impose virtually any regulation on any school-sponsored  expression, including papers, plays, speeches and any other expression that the  public might associate with the school.

▪ Courts still uphold off-campus expression that disrupts the education process. o Kincaid v. Gibson  

▪ Dean for Student Services at a University pulled the yearbook because of the  poor quality and a theme that the dean did not like. The students sued.

▪ A Federal appeals court reaffirmed that college students enjoy more First  Amendment rights than high school students.

▪ Administrators tried to use Hazelwood to control the university students, and  the Federal courts struck it down because yearbook was a limited public forum o Hosty v. Carter  

▪ Governors State University helps to run the newspaper, so it was not a  dedicated public forum.

▪ Paper wrote about a controversial situation; their officials were being criticized.  ▪ They said if you print the story, we won't pay the editor of the newspaper. The  students sued claiming the First Amendment rights. The courts upheld the  school's decision.

▪ They applied the Hazelwood standard to a state university, and it went to the  Supreme Court but it was denied cert.

o Morse v. Frederick  

▪ "Bong Hits 4 Jesus"

▪ Suspended from school, the school argued that it was on a field trip.

▪ The test is whether the free speech creates a situation that disrupts the  educational process

▪ Supreme Court ruled it was a substantial disruption and promoted a drug  message.

▪ The court ruled that the school had jurisdiction because it was a "school  function" as a field trip.

▪ It was construed as promoting the use of drugs, and because that is illegal, the  court said that it had a right and a duty to punishment.

▪ Had it been more political and not drug-related it would have been protected. o Chaplinsky v. New Hampshire  

▪ Chaplinsky calls a police officer a "god damn racketeer and a god damn fascist." ▪ These were considered to be fighting words (they would entice cop to hit him). ▪ Court said speech that incites a riot or encourages people to commit some  illegal activity is not protected.

o Snyder v. Phelps  

▪ "God Hates Fags,” Westboro Baptist Church picketed a funeral for a solider who  was killed in action.

▪ Family sued them for causing emotional distress; they won, but WBC appealed  and the case was sent to the SCOTUS.

▪ Supreme Court then overturned jury ruling in favor of the family for emotional  distress

Chapter 3 —Methods of Control 

• Questions:  

1. Can any speech be restrained?  If so, what kind?  

o Yes, there are a few exceptions to the freedom of speech guaranteed by the First  Amendment.

o The few limited examples of allowable prior restraint (see below) are methods of  control. Think of broadcasters in that they are under a license to send out expression to  the public, and in that, they are required by law to censor material that may not be in  the best interest of the public or that may be obscene.

o Any speech that fails the clear and present danger test (incites imminent danger), or  that attempts to incite a riot may also be restrained.

o Where national security comes into play, speech can be highly limited.

2. What is a prior restraint? What has the U.S. Supreme Court said about prior restraints?   o A prior restraint is a restriction on expression BEFORE publication or broadcast by: ▪ 1) injunction

▪ 2) agreement or

▪ 3) discriminatory taxation- (taxes based on the published content)

o This is the most serious and least tolerable form of regulating expression

3. What is an injunction?  What does “enjoined” mean?  

o An injunction is an order from the court telling a person or a company to perform or  restrain from some act, such as publication.

o “Enjoined" means  that an injunction has been placed on an individual/organization so  that they cannot publish/speak about a certain topic.  

4. What are some examples of allowable prior restraints?  

o Blocks on:

▪ False advertising

▪ Copyright violations

▪ Dispatches from military combat sites

▪ National Security threats (Any papers, tactics or documents)

5. What are the rules about covering military operations?  

o All publications subject to "Military Security Review."

o Military commanders have the option to subject news crews’ publications or creations  for review for security purposes.

o Journalists have no First Amendment right to be on front lines, so they have to consent  to this review.

6. What is a public forum?  How does the First Amendment protect speech in public forums?        What is a limited/dedicated public forum?  

o A public forum is a piece of public property dedicated to public discourse, like a  speaker's corner, or public property that has been traditionally open to public debate,  like streets, sidewalks, or Turlington Plaza.

o The First Amendment protects speech in these forums by making content-based  regulations unconstitutional.

▪ For example, they may control the time and place at which you can speak  (content-neutral regulations), but cannot restrict what you speak about.

o A dedicated public forum is property that the government intentionally designates for  public discourse.  

▪ State universities, for example, can dedicate a public forum in campus facilities  when it allows registered student groups to meet there.  

▪ School board meetings, municipal auditoriums and even a public bus system  that accepts political as well as commercial advertisements are all designated  public forums.

o A nonpublic forum is property not traditionally open for public debate nor dedicated by  policy to public discourse. It is essentially public/government property, but on such  property, the government needs no justification in barring any kind of speech or  expression it wants.  

▪ Examples: a military base or a courthouse

7. How and why do courts treat broadcasting and cable differently than print media? (hierarchy  of protected mediums)  

o Broadcasting and cable require:

▪ 1) public resources (the electromagnetic spectrum) and

▪ 2) infrastructure (cable or fiber optic lines lain under public property)

o The Scarcity Doctrine justifies the regulation of broadcasters (the idea is that the  airwaves are public property, so they can be regulated by the public).

o Print media is not regulated in the same way, as channels of communication are not  scarce like in the electromagnetic spectrum.

8. What are the rationales for government regulation of ownership and content in the electronic  media?  

o The electromagnetic spectrum only has so many frequencies to broadcast on without  the signals being scrambled and the entire spectrum being unable to be used for  communication.

o It is a public, physical resource that is limited, so it is the responsibility of the  government to make sure that what wavelengths are available are being used in the  best possible public interest.

o The demand for spectrum space exceeds the frequencies available, and this is why  broadcasters are so heavily regulated.

9. What process and criteria are used to license and re-license broadcast stations? o Congress and the FCC has placed limits on the number of stations one person or  company may own and on the types of licenses available to one person or company. o They do not want too much of one opinion or voice to dominate a public system. o They also award licenses based on the merit of the programming of the stations; if it  does not serve the public interest, then they do not award a license or renew one. o The government wants to make sure that as many diverse voices as possible can be  heard by the public

o They have to keep the public interest in mind since it’s a public resource. 10. Do individuals have a right to discuss public issues on broadcast stations?  o Yes, as justified by the Scarcity Doctrine:

▪ If they are serving the public interest, it can be allowed and even encouraged,  but is not an inherent right that cannot be blocked.

▪ Broadcast licenses to do not give the unfettered right to broadcast only one's  own views on public issues of the views of the persons who agree with them.

o According to the Fairness Doctrine, licensees are required to provide balanced coverage  of public issues.

11. What is the difference between content-based and content-neutral regulation?  What are the  different tests for content-based and content-neutral regulations?  

o Content-based regulations restrict the content of speech (unconstitutional) o Content-neutral regulations restrict where or when the speech can be given/made. o These regulations are based on:

▪ Speaker

▪ Location of the Speech

▪ Type of Speech.

o Content-based tests are reviewed under strict scrutiny (usually struck down) o Content-neutral tests:

▪ 1) The O'Brien Test: Tests for laws that incidentally regulate expression  

(example: noise ordinances).

▪ It may regulate your expression, but it's not about WHAT you're  

listening to, but how LOUD you're listening.

▪ 2) Time, Place, Manner Test: regulates expressive activities, like a parade or  picketing.

▪ They can control when you do it and where you do it, but they cannot  

restrict the content.

12. What are time, place, and manner restrictions?  When can they be lawfully used?  What is the  proper test/s for the court to consider when ruling on the constitutionality of a content neutral regulation?  

o Time, place, and manner restrictions are content-neutral regulations.

▪ They regulate expressive activities, like a parade or picketing.

▪ They can control when you do it and where you do it, but they cannot restrict  the content.

o They require the government to show a significant/substantial governmental interest  (for example, concerning the health & safety of citizens), and they have to show it's  within the duties of the government to protect the citizens (as in playing music that loud  disturbs neighbors and violates health and safety).

o They have to be narrowly tailored

o They also have to prove that it is narrowly tailored, meaning they can say you can't nail  your flyers to public utility poles, but they can't say you can't put up your flyer at all.  o Finally, they have to demonstrate alternative channels, meaning if that they have to  provide ample channels of other means of communication.

o Also remember that in expression is designed to communicate ideas, whereas conduct is how you behave in doing that. Conduct not protected.  

o Symbolic speech or expressive conduct, however, is protected (but can be regulated). If  you don't like the way someone is teaching a class, you can protest by doing non-violent  acts; this is the difference between speech and conduct/actions.

13. What did the U.S. Supreme Court say about speech in the Simon & Schuster?  Can criminals    make money from selling the stories about their crimes?  If not, why not?

o Simon & Schuster: It was a content-based statute, so STRICT SCRUTINY was applied o A Florida statute prevented anyone from profiting off a telling of their crime; the Florida  State Legislature would put a lien on his and her royalties and any profits they would  have made and they gave it to the victim.  

o Criminals could still autograph things and make money, as it is not crime-related.

o They found that the law was unconstitutional and like discriminatory tax laws because it  would discourage the creation of protected expression (taxing something based on view  point presented).

o It also singled out speaker and a certain speech (description).

o NY-based Son of Sam law: If any criminal published story about crime, profits would  have to go to families.

o Can criminals make money from selling stories about their crimes?

▪ Yes; the SCOTUS struck down a law on requiring convicted criminals and those  accused of crimes to deposit income from works describing their crimes in an  

account for the criminals' victims and creditors.

14. When can communicators be punished after publication?  Can they be punished for publishing  confidential information lawfully acquired by them from someone who deliberately leaks  confidential information?  (Refer to class discussions about NYT v. U.S., WikiLeaks, and the  Espionage Act.)  

o This is the favored way of stopping speech over prior restraint.

o It is allowed for communication that is:

▪ 1) libel

▪ 2) false

▪ 3) fraud

▪ 4) private

o Publishing confidential information: If the information is obtained from a reputable  source (like an affidavit) the communicator won't be punished, but the person sourcing  the information can be punished.

• Important Cases:

o Simon & Schuster v. N.Y. State Crime Victims Board   

▪ "No laws that impose financial burden on speakers based on the Content of  their speech."

▪ Court struck down a law requiring convicted criminals to deposit money from  profits based off description of the crime into an account for the victims.

o New York Times v. United States 

▪ Also known as the "Pentagon Papers Case"

▪ Government wanted to enjoin a newspaper from publishing.

▪ Court did not grant injunction.

▪ Prior restraint was an issue, because prior restraints are considered  

presumptively unconstitutional.

▪ Judges rarely issue an injunction because it is presumptively unconstitutional  and a heavy burden for government to prove

▪ Government claimed national security, but didn't win the case.

▪ Courts ruled prior restraint was presumptively unconstitutional.

▪ Rule: "A prior restraint may be appropriate where publication of vital  

government information threatens national security."

o Red Lion Broadcasting Co. v. FCC 

▪ Red Lion challenged FCC

▪ This is considered the most important case concerning broadcasting.

▪ Supreme Court said that electromagnetic spectrum was a limited, scarce  

resource that required a system of government allocation.

▪ As long as the demand for spectrum space was greater than what was available,  no one could claim a First Amendment right to broadcast.

▪ The right to free speech is not violated when the FCC ensures that the spectrum  is used to serve the public interest.

o U.S. v. O’Brien 

▪ (See the O'Brien Test) The court upheld a military draft law prohibiting men  from destroying or mutilating their draft cards, even when it applied to a  

Vietnam war protester publicly burning his card.

▪ Court said it was constitutional because it was content-neutral.

▪ Was adopted not to punish dissent, or the content of the protest, but to allow  the government to raise armies quickly and efficiently by requiring eligible men  to carry their classification cards.

o Smith v. Daily Mail Publishing, Co. 

▪ SCOTUS ruling says that if a newspaper lawfully obtains truthful information of  public significance and publishes it, they can't be punished.

▪ Merely receiving TRUTHFUL information is legal, whether obtained legally or  illegally, or even if it is not supposed to be disclosed.

Chapter 4 — Libel 

• Questions:  

1. What is libel?  

o Libel is a form of defamation. It is “an expression which injures a person's reputation or  standing in the community.”

2. What is the difference between criminal and civil defamation cases?  

o Most defamation cases are fought as civil libel now (person-person)

o Half of states recognize criminal libel, but prosecutions extremely are rare now. (The  government often doesn’t want criminal involvement)

o Florida law does recognize criminal libel

3. Where does the law of defamation come from?  

o Defamation law comes from three places:  

▪ 1) Common Law (something that was made law in or originally brought to the  colonies from England)

▪ 2) State Statutes

▪ 3) The Constitution

▪ Specifically, from the application of NY Times v. Sullivan, which  

changed the whole perspective of defamation.  

▪ The case said that the First Amendment protected defamation.

4. What is the difference between slander and libel?  Is there a significant difference today?  o Old definition: Libel is written; Slander is spoken.

o The distinction mattered in the old days, before modern media. It isn't often separated  now because of the permanence of spoken speech (recordings, etc.)

5. Who can be a libel plaintiff?  What does that person have to prove?  

o A libel plaintiff can be:  

▪ Living individuals

▪ Businesses

▪ NOT Government

▪ Libel-proof plaintiff is more of a gray area depending on the case (example:  murderers)

o Plaintiff's Burden of Proof - You have to be able to prove ALL of these to sue:

▪ That it was a defamatory statement

▪ That it included identification (personally of yourself)

▪ That it was published; publication only requires 3 people: speaker, plaintiff, and  ONE person who hears/reads/views the material

▪ That the defendant was at fault

▪ That there was falsity

▪ That the libel caused personal harm (MONEY damages)

6. How did libel law change with N.Y. Times v. Sullivan, particularly the fault requirement? o NY Times v. Sullivan revolutionized law of defamation  

▪ It did away with strict liability, the old school standard to prove fault

o Case said that the First Amendment protected some libel

o Background:  

▪ NYT printed ad that supported MLK and civil rights movement and protestors ▪ Ad reported on police activities that made the government look bad

▪ Sense of the ad was correct but there were some slight inaccuracies (name of  song kids sang, # of times MLK was arrested)

▪ Sullivan, Alabama police chief, convinced an Alabama jury that he had been  personally libeled, even thought the ad didn't mention him directly

▪ Sullivan won because all he had to prove was strict liability:

▪ 1) Defamatory Statement

▪ 2) Identification

▪ 3) Publication

▪ (strict liability was standard applied then, but is no longer used)

▪ Plaintiff only had to prove that defendant took action that was inherently  dangerous or harmful; to win, defendant had to prove the statement was true (the truth is hard to prove)

▪ Supreme Court overruled Alabama ruling and said this speech is encouraged. ▪ "In a free and open society, bad speech will be intertwined with good speech,  but we can't punish media for a mistake."

▪ Court said "in the marketplace of ideas and when there is a debate about  government, there is bound to be some errors. But 1st

▪ Amendment has to provide some breathing space for criticizing public officials.  It is more important to have the conversation than to not write anything for fear  of being sued for getting a few things wrong.

o NYT decision was based on a national commitment that debate on public issue should  be uninhibited, robust and wide open.  

▪ This debate can include caustic, vehement and sometimes unpleasantly sharp  attacks on government and public officials.  

▪ However, that's the price of having the First amendment that protects political  debate.

o This switched the burden of proof from the defendant having to prove that the  statement is true to the plaintiff having to prove that the statement is false.

7. What are the forms of libel?  What are the most common areas for defamatory content?   What is product disparagement/trade libel?  What are the First Amendment issues  surrounding these state laws?  

o Forms of libel:  

▪ Words, Implications, Innuendos

▪ Circumstances (if a story conveys a defamatory meaning, or distorts the truth, it  can be libel)

▪ Headlines

▪ Advertisements (You can say your product is the best, but not something false  about a competitor's product)

▪ Photographs/Cartoons (if a reporter took a photograph of something, but used  it to illustrate a story of something that is negative, implying that connection  can be libel/defamation)

▪ Political Cartoons: are usually protected under political speech

o Most common areas for defamatory content:  

▪ 1) Crime (Accusing someone of)

▪ 2) Occupation (Calling someone fraudulent or unethical)

▪ 3) Business (Damaging a business’ reputation

▪ Accounts for most of defamation lawsuits

▪ Often businesses say they are on the edge of bankruptcy as a result

▪ 4) Product Disparagement or Trade Libel

▪ 5) Personal Habits or Character (Lifestyle, traits, etc.)

▪ 6) Politics, Religion and Race (Calling someone a spy, communist, Nazi)

▪ 7) Humor and Ridicule ("Just kidding," doesn't work)

o Product disparagement/trade libel:  

▪ This is libel of products.

▪ Defames the quality or usefulness of a commercial product, NOT the company  that produced it.

▪ Can imply that the manufacture is dishonest, fraudulent or incompetent. ▪ Awards in court compensate for loss of ales rather than reputation

▪ Defendants must prove financial loss and malice on top of usual burden of proof o First Amendment issues around state libel laws:  

▪ The First Amendment protects free debate (ability to question food supply) ▪ "Veggie Libel Laws" makes media liable if they knowingly disseminate false info  about the safety of a perishable food.

▪ 13 states have this type of law, including Florida

▪ Statutes say critics can be sued libel unless they are based on scientific evidence 8. What are the elements of a defamation lawsuit?  What are the requirements for each  element? (ex. - identification - remember group libel)  

o 1) Defamatory Statement

o 2) Identification

▪ Plaintiff must prove language is "of and concerning" them.

▪ Doesn't have to specifically say a name (saying "The U.S. president's wife" is  defamatory)

▪ Large groups (more than 100) CAN'T sue for libel

▪ Less than 100 can sue, but hard to prove

▪ Smaller the group the more likely they are to win

o 3) Publication

▪ Publication- Must involve 3 people (publisher, plaintiff, and at least one viewer ▪ Radio or TV- if air a defamatory statement once it's published.

o 4) Fault

▪ With private plaintiffs: only must prove negligence

▪ With public figures and officials: must prove actual malice (NY Times case)

o 5) Falsity

o 6) Personal harm

o In order to win a defamation lawsuit, the plaintiff must prove all six elements. 9. What are libel-proof plaintiffs?  

o A libel-proof plaintiff is a person whose reputation is so bad that you cannot hurt it  anymore than it already has been damaged (example, murderers).

10. Is defamation on the internet protected by the First Amendment?  Are online publishers (ISPs)  responsible for libel posted on their service?  What law is involved?  

o Internet defamation is a very gray area.  

o Bookstore owners, telephone companies, public libraries, etc. have no liability.  o Like online publishers, you can't hold a telephone company responsible for libelous  conversations that happen over their lines, or a bookstore for the content of the books  they sell.

o Section 230 of the 1996 Telecommunications Decency Act (CDA) protects ISPs when  third parties post libelous messages (even when they try to edit some libel-like content) o This means that when it comes to ISPs, Internet operators are not "publishers." o This means individuals/corporations can't hold ISP's responsible, but the person who  says it can still be held responsible.

11. Can you be sued for defamation in a tweet, Facebook post or blog?  

o A user can be held responsible for their statements made on social media (depending  on context and the six elements of defamation), but the company/provider cannot be  held responsible.

• Important Cases:

o Zeran v. America Online, Inc. 

▪ Deals with publication; Case established Sec 230- Telecommunications Act- ▪ Provides immunity for certain ISP

▪ Not liable for 3rd party postings that defame a person, as long as ISP don't  interfere with content on site by editing or reviewing.

▪ Someone posted on America Online saying "Oklahoma City, it's a blast; Vote for  Tim McVeigh for president"

▪ Supreme Court said America Online is immune because burden would be too  great on ISP and would inhibit them from exercising freedom of expression

o New York Times v. Sullivan  

▪ Deals with fault; Most important in defamation case

▪ Background (copied from above, question 6):  

▪ NYT printed ad that supported MLK and civil rights movement and protestors ▪ Ad reported on police activities that made the government look bad

▪ Sense of the ad was correct but there were some slight inaccuracies (name of  song kids sang, # of times MLK was arrested)

▪ Sullivan, Alabama police chief, convinced an Alabama jury that he had been  personally libeled, even thought the ad didn't mention him directly

▪ Sullivan won because all he had to prove was strict liability:

• 1) Defamatory Statement

• 2) Identification

• 3) Publication

▪ (strict liability was standard applied then, but is no longer used)

▪ Plaintiff only had to prove that defendant took action that was inherently  dangerous or harmful; to win, defendant had to prove the statement was true (the truth is hard to prove)

▪ Supreme Court overruled Alabama ruling and said this speech is encouraged. ▪ "In a free and open society, bad speech will be intertwined with good speech,  but we can't punish media for a mistake."

▪ Court said "in the marketplace of ideas and when there is a debate about  government, there is bound to be some errors. But 1st

▪ Amendment has to provide some breathing space for criticizing public officials.  It is more important to have the conversation than to not write anything for fear  of being sued for getting a few things wrong.

o Gertz v. Welch  

▪ Case defined the different categories of public figures

▪ Said involuntary public figures rarely have to prove Actual Malice

▪ Said private plaintiffs don't have to prove Actual Malice

▪ Even persons who are not public officials or public figures must show fault in  order to win a libel case.

▪ Gertz was a high-profile attorney representing the parents of a child who was  killed by a policeman.

▪ A magazine American Opinion falsely called him a Leninist and a Communist frontier, and he was dragged into the public spotlight by the media.

▪ He took them to court claiming libel and won, because the libelous statement  was NOT regarding what he was already in the spotlight for: representing the  high-profile murder case

▪ Supreme Court ruled Gertz was considered a private person and did not have to  prove N.Y. Times actual malice.

o Hutchinson v. Proxmire 

▪ Dr. Hutchinson, a researcher, tested monkeys and aligned jaw clenching as  response to stress.

▪ Senator Proxmire said in a speech Hutchinson's research was “bogus”. ▪ Hutchinson said Proxmire defamed him, and that legislative privilege does not  extend to written and spoken statements beyond the legislative process.  ▪ The court said that Senator William Proxmire's libelous criticism of Dr. Ronald  Hutchinson's research on monkeys was privileged on the floor of the Senate, but  not outside of the Senate.  

▪ Proxmire could be sued for defamatory remarks repeated in press releases, his  constituent newsletter and on talk shows. Hutchinson won the suit.

o St. Amant v. Thompson 

▪ Candidate said something defamatory in his speech about his opponent (said his  opponent was taking bribes from union officials).

▪ Obtained information from an affidavit

▪ Supreme Court ruled NO reckless disregard because the source was reliable. ▪ The Court said that plaintiffs can establish reckless disregard only if they can  prove that defamatory statements were made with a "high degree of awareness  of their probable falsity."

o Harte-Hanks Communications, Inc. v. Connaughton 

▪ Reporter published story saying a judge running for office blackmailed his opponents.

▪ Reporter used unreliable sources, refused to listen to contradictions in the  story, failed to interview judge, refused to listen to judge's claim that he didn't  blackmail anyone

▪ Supreme Court ruled reporter acted with reckless disregard (Proved NYT’s  standard for actual malice)

o Curtis Publishing v. Butts 

▪ Case extended the NYT standard for actual malice requirement to public figures! ▪ Source said he heard a telephone call between Wally Butts, GA coach, and  Alabama coach that they were going to fix the score of the game.

▪ Source had bad reputation (had been convicted of fraud in the past).

▪ Supreme Court ruled reporter acted with reckless disregard because source was  unreliable and he didn't verify any facts.

o AP v. Walker  

▪ AP article said a retired army officer was preventing officials from coming to  schools to integrate them

▪ Was not true, but Supreme Court ruled no actual malice because AP reporter  checked the reliability of the source who gave them the story

o Philadelphia Newspaper v. Hepps 

▪ Private persons involved in matters of public concern. It's the commitment to a  robust debate about issues of public concern.  

▪ People commenting on issues of public concern get a little more protection,  even the private people suing them.  

▪ The defendants get more protection in this case.

▪ Private persons involved in private matters are NOT required to prove falsity. o Richard Jewell v. Atlanta Journal & Constitution (video and class discussion)  ▪ At one point, Jewell was the prime suspect in the Atlanta Olympic bombings.  ▪ According to his story, he was working as a security guard and saw a green  backpack where people were drinking and they left the backpack behind them.  • He reported the package and the ATF checked it out, were unhappy.

• The FBI and the papers claimed that he planted the bomb himself to  

make himself look like a hero.  

• They said that he made phone calls that told that the bomb was going  to explode before it happened, but they found that they did happen  


• Brokaw “made comments that seemed that he was convinced that  

Jewell was already guilty.”

• The FBI “wanted something public or else they would not have leaked  the information to the newspapers.”

▪ Lynn Wood represented Richard Jewell. He wants to claim Richard Jewell as a  private figure because then they don't have to prove actual malice.

▪ Georgia Court said Jewell is a voluntary limited-purpose public figure because he  purposefully tried to influence the outcome of a public controversy.

▪ The court said that “by granting 11 interviews,” even though he didn't set them  up, but he agreed to answer reporters' stories and in doing so “he participated  in the public controversy.”

▪ Involuntary public figure: someone who is caught up in the controversy  involuntarily and assumes a prominent position in its outcome.

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