Midterm Exam Study Guide
Midterm Exam Study Guide SMPA 2173
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This 7 page Study Guide was uploaded by Gabriella Hope on Monday February 16, 2015. The Study Guide belongs to SMPA 2173 at George Washington University taught by Will Youmans in Spring2015. Since its upload, it has received 178 views. For similar materials see Media Law in Journalism and Mass Communications at George Washington University.
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Date Created: 02/16/15
Sunday February 15 2015 EXAM ONE MEDIA LAW Libel Plaintiff s Elements In order to be libel a statement must make an assertion of fact Burden of proof falls on the plaintiff in ibe cases nowadays Burden of proof The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence In ibe law for example the plaintiff has the burden of proof To win a libel case the plaintiff must prove that all of the required elements apply to the allegedly libelous material 1 2 Statement of fact libelous statement cannot be an opinion Publication plaintiff must show that the statement was made public 1 other person in addition to the source and subject must have seen or heard it Republication repeating libelous information republisher can be held responsible as the originator of a libelous statement Vendors and Distributors exception bookstores libraries and newsstands cannot be held responsible for disseminating libelous information lSPs are also protected since they are not the originator of information Identification plaintiff must show that he or she was specifically the person whose reputation was harmer or was a member of a small group that was defamed There are several ways a person can be identified name title photos or within a context to which their identity can be inferred Group identification key is whether in ibeing the group the information is also of and concerning the specific individual bringing the lawsuit Identification in fiction level of recognition must rise to a portrayal of the fictional character as the plaintiff Defamation material must be defamatory Libel per se a statement whose injurious nature is apparent and requires no further proof ie accusations of criminal activity unethical practice unprofessional behavior etc Libel per quod a statement who39s injurious nature requires further proof ie mr x visited 123 street if people know 123 street is a meth ab it could be injurious Falsity for a statement to be libelous it must be false plaintiff must prove statement is false rather than defendant having to prove the statement is true Substantial truth as long as a statement is substantially true it cannot meet the standard for falsity and therefore cannot be libelous A plaintiff must prove the defendant was at fault in making public the false and defamatory statement Prior to New York Times v Sullivan this was not the case New York Times v Sullivan a coalition of civil rights leaders purchased a space in the Times for a statement which made charges against officials in souther states who Sunday February 15 2015 had allegedly used violent and illegal methods to suppress the marches The gist of the statements were factually accurate but some errors of fact were included Sullivan the police commissioner of Montgomery filed a libel claim against the Times seeking 500K in damages Sullivan was not identified by name but said the ad was of and concerning him Alabama court ruled in his favor but the Times appealed to SCOTUS arguing that because Sullivan was a public official a higher standard should be applied to his claim SCOTUS ruled 90 in favor of the Times because Awarding victories to libel plaintiffs too easily could have a chilling effect First Amendment protection was especially important when it came to criticism of the government Developed actual malice Actual malice a statement made knowing it is false or with reckless disregard for its truth created by Justice Brennan Knowledge of falsity Reckless disregard for the truth sloppy journalism ll Libel Defenses Fair report privilege a privilege claimed by journalists reporting events based on official records the report must fairly and accurately reflect the content of the records based on the idea that keeping citizens informed about matters of public concern is sometimes more important than avoiding occasional damage to individual reputations gives reporters protection to report on government conduct without first having to prove what the government says ie writing a news story based on a police report Absolute privilege a complete exemption from liability for the speaking or publishing of defamatory words of and concerning other because the statement was made within the performance of duty such as in judicial or political contexts Conditional qualified privilege idea that journalists are only protected under the condition that their news reports are fair and accurate reports about judicial activities are conditionally privileged Fair Comment and criticism a common law privilege that protects critics from lawsuits brought by individuals in the public eye critic can be anyone that comments on individuals and their work mainly related to book reviews movie reviews etc OPINION The Ollman Test 4part test used to assess opinion and differentiate between it and fact 2 Verifiability Is the statement verifiable can the statement be proven to be true or false 3 Common meaning What is the common usage or meaning of the words 4 Journalistic context What is the journalistic context in which the statement occurs ie does it appear in the editorial page oped letters to the editor etc Sunday February 15 2015 5 Social context What is the broader social context into which the statement fits ie was it made in a place where the expression of opinions is common or not Supreme court rejects the notion that there is no such thing as a false idea Innocent construction allegedly libelous words that are capable of being interpreted or construed to have an innocent meaning are not libelous so long as that interpretation is a reasonable one Neutral reportage a defense accepted in some jurisdictions that says that when an accusation is made by a responsible and prominent organization reporting that accusation is protected by the First Amendment even when it turns out to be false and libelous SCOTUS has had virtually nothing to say about neutral reportage Wire service defense party responsible for republication must meet 4 factors in order to use this defense 1 Defendant received material from a reputable newsgathering agency ie Associated Press 2 Defendant did not know the story was false 3 Nothing in the story could have reasonably alerted the defendant that it contained false information 4 The original wire service story was republished without substantial change Singlepublication rule limits ibe victims to only one cause of action even with multiple publications of libel common in the mass media and on websites Libelplaintiff proof a plaintiff whose reputation is so bad already that additional false statements about him or her cannot cause further harm Single mistake rule because it is expected that a professional will sometimes make a single mistake reporting a single mistake is not necessarily substantially false The Brandenburg Test Brandenburg v Ohio Brandenburg a leader in the Ku Klux Klan made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law The law made illegal advocating quotcrime sabotage violence or unlawful methods of terrorism as a means of accomplishing industrial or political reformquot as well as assembling quotwith any society group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism Court held that the Ohio law violated Brandenburg s right to free speech Developed a 2prong test to evaluate speech acts 1Speech can be prohibited if it is directed at inciting or producing imminent lawless action and 2 Is likely to incite or produce such action IV ContentBased Restrictions vs ContentNeutral Contentbased restrictions laws enacted because of the messages the subject matter or the ideas expressed in the regulated speech To determine whether contentbased laws are constitutional SCOTUS uses strict scrutiny test Laws that discriminate on the basis of content are unconstitutional unless they use 1 the least restrictive means 2 to advance a Sunday February 15 2015 compelling government interest ie national security electoral process public health welfare Contentneutral restrictions laws that incidentally and unintentionally affect speech as they advance other important government interests Regulate the time place manner in which speech occurs but not the content of the speech itself Some are called TPM timeplacemanner restrictions Example US v O Brien SCOTUS affirmed that burning your draft card is an example of symbolic speech that interferes with a compelling government interest the military draft and so O Brien conviction for burning his draft card was affirmed O Brien Test a law is contentneutral and will be constitutional if it 1 is not related to the suppression of speech 2 advances an important government interest and 3 is narrowly tailored to achieve that interest with only an incidental restriction on free expression V Near v Minnesota Near v Minnesota Jay Near published a newspaper in Minneapolis in which he attacked local officials charging that they were implicated with gangsters The courts issued an injunction and shut his paper down under a Minnesota public nuisance statute banning obscene and defamatory material from publication SCOTUS said the ban was unconstitutional and a classic form of prior restraint The court established 3 criteria for prior restraint as any law that imposes government oversight on whole categories of speech content or publication allows the government to choose what content is acceptable empowers government censors to ban content before it is distributed to the public VI New York Times v United States New York Times v United States 1971 case where the US tried to issue a court order preventing publication of news stories based on the pentagon papers which detailed the DOD s involvement in Vietnam and were leaked to the NYT Nixon Admin said publication of the papers threatened national security and safety of US troops SCOTUS said the injunction was unconstitutional because the gov had not met its burden of showing that the ban was essential to prevent a real and immediate risk of harm to a compelling government interest Important because court said only a free and unrestrained press can effectively expose deception in government and defined when prior restraint is constitutional obstruction of military recruitment publication of troop locations during war obscene publications incitements to violence forcible overthrow of government fighting words likely to promote violence VII Categorical Balancing vs Ad Hoc Balancing 4 Sunday February 15 2015 Categorical balancinga judge s or court s practice of deciding cases by weighing different broad categories of interests such as privacy to create rules that may be applied in later cases with similar facts Look beyond speech itself at the particular circumstances and extend of harm to determine whether the expression is punishable Ad hoc balancing making decisions according to the specific facts of the case under review rather than more general principles Example weighing the constitutional interests of the case against the competing interests on the other side VIII Clear amp Present Danger Test Government has a right to prevent speech that presents a clear and present danger Established in Schenck v United States 1919 Charles Schenck mailed antidraft pamphlets to men in Philly encouraging them to reject the prowar effort and oppose participation in WWI Schenck was convicted of violating the espionage act SCOTUS affirmed his conviction saying the mailing had a bad tendency and posted a clear and present danger to national security Holmes expanded on the test throughout Git0w v New York and Abrams v US Whitney v California Debs v US warning that that court needed to be more discriminatory in applying the text Vllll Textualism vs originalism Textualism relying exclusively on the careful reading of legal texts to determine the meaning of the law Originalism interpreting the constitution according to the perceived intent of its framers X School Cases Tinker v Des Moines School District Black arm bands John and Mary Beth Tinker wore black armbands to school to protest the war in Vietnam School officials told them to remove the armbands and when they refused they were suspended SCOTUS sided with the students Students and teachers don39t quotshed their constitutional rights to freedom of speech or expression at the schoolhouse gate However free speech must be balanced against a school s need to keep order Morse v Frederick Bong hits for Jesus Frederick was suspended for holding banner reading that at an olympic torch relay that was an offcampus event not sponsored by the school SCOTUS said school s suspension did to violate Frederick s free speech since his banner promoted illegal drug use Bethel School District v Fraser Matthew Fraser made a speech nominating a fellow student for elective office In his speech Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend As part of its disciplinary code Bethel High School enforced a rule prohibiting conduct which quotsubstantially interferes with the educational process including the use of obscene profane language or gesturesquot Fraser was suspended from school for two days SCOTUS held for school Sunday February 15 2015 Schools can prohibit vulgar and lewd speech since such it s inconsistent with the quotfundamental values of public school educationquot Hazelwood v Kulhmeier 1988 The Spectrum the schoolsponsored newspaper of Hazelwood high school was written and edited by students The school principal received the pages proofs found two of the articles about divorce to be inappropriate and ordered that the pages on which the articles appeared be withheld from publication SCOTUS held for Hazelwood school district Schools must be able to set high standards for student speech disseminated under their auspices and retained the right to refuse to sponsor speech that was quotinconsistent with 39the shared values of a civilized social order39quot Island Trees School District v Pico 1982 school board acting contrary to recommendations of parents and school staff ordered certain books be removed from its district39s junior high and high school libraries In support of its actions the Board said such books were quotantiAmerican antiChristian antiSemitic and just plain filthyquot Pico brought suit in federal district court challenging the Board39s decision to remove the books SCOTUS held for Pico Although school boards have a vested interest in promoting respect for social moral and political community values their discretionary power is secondary to the transcendent imperatives of the First Amendment As centers for inquiry and the dissemination of information and ideas school libraries enjoy a special affinity with the rights of free speech and press XI What does First Amendment protect and not protect Unprotected categories of speech sedition fighting words obscenity defamation Protected categories of speech anything that isn t the above and contributes to free exchange and flow of ideas XII Instrumental vs Intrinsic reasons Intrinsic free speech is a natural right of human beings freedom of speech is worthy of constitutional protection because it is fundamental to individual liberty Instrumental freedom of speech and freedom of the press receive protection only when they advance such social benefits as the search for truth and selfgovernance or serves as a safety valve for social discontent thus as a watchdog for government abuse XIII Strict Scrutiny Intermediate Rational Basis Strict Scrutiny a test for determining the constitutionality of laws restricting speech under which the government must show it employs the 1 least restrictive means available to 2 directly advance a compelling interest most rigorous test by SCOTUS to determine whether a law is constitutional Sunday February 15 2015 Intermediate Scrutiny a standard applied by the courts to the review of laws that implicate core constitutional values also called heightened review applied through the O Brien test see above Rational review basis a standard of judicial review that assumes that constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review Laws reviewed under this must be reasonable and serve a legitimate government purpose to be constitutional XIV Types of Public Forums Public forum government property held for use by the public usually for purposes of exercising rights of speech and assembly Three types Traditional public forums parks streets sidewalks etc Designated public forum government spaces or buildings available for public use upon designation ie public school classrooms Nonpublic forums government property that is not available for public speech and assembly purposes ie military bases federal penitentiaries airport terminals etc XV Communication Decency Act Part of the 1996 Telecommunications Act that tried to regulate Internet content Successfully challenged in Reno v ACLU 1997 Portion of the CDA which prohibited the transmission of sexual content on the internet in order to protect minors Challengers argued it was too broad SCOTUS agreed CDA s regulations amounted to a contentbased blanket restriction of free speech since the Act failed to clearly define quotindecentquot communications limit its restrictions to particular times or individuals by showing that it would not impact adults provide supportive statements from an authority on the unique nature of internet communications or conclusively demonstrate that the transmission of quotoffensivequot material is devoid of any social value XVI TPM Restrictions Content neutral restrictions based on time manner or place Examples Time Limiting amplified sound to certain hours Place Prohibiting demonstrations at the entrance of campus buildings Manner Limiting the size of flyers or signs at posting locations
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