Comm. Law, Exam 1 Study Guide
Comm. Law, Exam 1 Study Guide JRLC 5040
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Communication Law – Exam 1 Fall 2016 Middleton CASES TO KNOW 1. Obergefell v. Hodges : When Justice Kennedy (notorious for the swing vote) had joined the liberal bloc when striking down state laws prohibiting same -sex marriage. *Obergefell argued that the law of same sex marriage is against the 14th amendment *local register and the district court agreed, but the sixth circuit court of appeals did not *Obergefell appealed *Supreme court accepted it *Justices that accepted it were, *Ginsburg *Kagan *Sotomayor *Breyer *Kennedy *Came down to the equal protection clause 2. Richmond Newspapers v. Virginia: The first amendment requires trials to be open to the public. Justices voted 7 -1 for this. 3. Pentagon Papers Case : Each of the nine justices wrote their own opinion on this particular case. That resulted in a “per curiam” opinion as the six -justice majority that ended up favoring media over government had presented an unsigned, three -paragraph decision. In this case, the justices couldn’t figure out why a prior restraint was justified on the government’s part because there was no clear and present danger involved with releasing the documents. -so all of them agree, but for different reasons and submit an unsigned reasoning 4. The Hutchinson Case : This is a prime example of a civil suit. Richard Hutchinson had filed a complaint against Senator William Proxmire in Wisconsin. Hutchinson sued for libel, arguing that Proxmire's statements defamed his character and caused him to endure financial loss. Proxm ire had said that he would award a “golden fleece” award to the federal agencies that had sponsored Hutchinson’s research on why monkeys clench their jaws when exposed to stressful stimuli. Hutchinson had claimed defamation as Proxmire described his resear ch as worthless; sought $8 million dollars in damages. Ended up settling outside of court for $10,000.00 and an apology from Proxmire. 5. Sheppard Case: “Crime of the Century.” Sensational publicity was involved because there was so much awe and interest in the case. Press had followed the sensational publicity and had put in incriminating headlines that made Sheppard look guilty. A month later, he was arrested for murder. Had been sentenced to a lifetime in prison, and tried for the appeal, but it didn’t go through. 6. Brazenburg v. Hayes –Caldwell Case: Refused a subpoena so he could protect his sources. This was against the wishes of his employer, the New York Times, as they wanted him to go to court and not say anything. 7. Gitlow v. New York: This is an example of applying the bill of rights to states. Anarchists said Wall Street was responsible for World War One. As a result, they were charged with anarchy law. Court did not strike down a NY statute under which Ben Gitlow was convicted for publishing a l ittle-noticed manifesto urging the overthrow of the government. The bad tendency test was used in this case , which means that the Court believed there was a “tendency” to cause a substantial evil by Gitlow. 8. Near v. Minnesota : Also an example of applying b ill of rights to states. When the Supreme Court first struck down a state statute violating freedom of the press. Signified use of Bill of Rights so that state law accepts the 14th amendment. The Minnesota statute declared unconstitutional in Near permitte d prepublication restraints on “malicious, scandalous, and defamatory” publications. Prior restraint. 9. McIntyre vs. Ohio Elections Commission : The court invalidated the subject matter regulation, in part, because it unconstitutionally banned a category of political speech, the category designed to influence voters. Furthermore, the court said that Ohio’s ban on all unsigned fliers designed to influence voters was much broader than necessary to prevent what would be relatively few instances of fraud and libe l in campaign literature. Court applied strict scrutiny. 10. Texas v. Johnson: This is an example of a viewpoint case . Due to this, the strict scrutiny test was applied. It wasn’t a compelling interest because not only is it a form of political speech, but it didn’t break the peace by any means and did not intend to intimidate so it wasn’t fighting words nor true threat. The court overturned the conviction of Gregory Lee Johnson, who burned a flag at the 1984 Republican Convention in Dallas to protest policies of the Reagan administration. While Johnson was convicted under a Texas law prohibiting intentional desecration of the flag and was cited as a “serious offense,” the court ruled that unconstitutional because it was symbolic speech and did not have intent of intimidation...unconstitutionally punished political expression most importantly. 11. Snyder v. Phelps: Supreme Court held the first amendment was violated by a $5 million jury award for emotional distress allegedly caused by picketers carrying signs proclaiming “God Hates F**S” near a soldier’s funeral. However, the picketers were on public property, so far away they were inaudible, and weren’t breaking the law. 12. Schenck v. United States: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged , "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. The clear-and-present danger test was first used in this case. In other words, expression should be punished only when words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress had a right to prevent. 13. Abrams v. United States: Abrams displayed fliers that opposed t he dispatch of American troops to Russia. The court thought those were opinions with no such imminent danger. 14. Dennis v. United States: clear and present danger test applied; Dennis belonged to the communist party; Dennis convicted based the “present catal yst” to incite danger and his highly organized members and court upheld conviction 15. Yates v. United States: Conspiracy to overthrow the government was far too removed for a clear and present danger. 16. Brandenburg v. Ohio: Telling klansmen at a televised mee ting it’s possible that there might have to be some revenge taken. Court struck down an Ohio criminal statute under which Brandenburg (a KKK leader) had been convicted for advocating unlawful methods of industrial or political reform. Court said statute pe rmitted convictions for “mere advocacy” of illegal action at some distant time. 17. Hess v. Indiana: Court reversed the conviction of a demonstrator who was arrested during an antiwar demonstration on a college campus for shouting “We’ll take the fucking streets later.” 18. Chaplinsky v. New Hampshire: Chaplinsky was convicted for calling a marshal a “goddamned racketeer and a fascist.” The court ruled that saying that to the average person would invoke a reaction that would disturb the peace, which would classi fy as fighting words and is unconstitutional. *fighting words* 19. Cohen v. California: Cohen wore a jacket that said “fuck the draft.” Though it was unpopular, the statement was constitutionally protected and not classified as fighting words. 20. R.A.V v. City of St. Paul: Cross burning case. Cross burning is political speech and therefore protected, unless clearly intended as a true threat. 21. McCullen vs. Coakley: Non content regulation that resulted in a 5 -4 vote for. The vote all went down to whi ch side of the line on the road permits to hand out publications? Had to deal with what side of the yellow line the abortion people were on. This was ruled as too broad of a law to stick. 22. Brown v. Entertainment Merchants Association : This is an example of a content regulation case and also of the strict scrutiny test. Scotus struck down California statute prohibiting state of very violent games to minors, a category of expression. The verdict said that there was no compelling need for regulation. There was inconclusive evidence that games make kids violent. Other sources of media are protected and could influence kids being violent, but there isn’t substantial evidence saying it was definitely the video games. 23. Lamb’s Chapel v. School District : This was an example of viewpoint discrimination. School had rented rooms out to groups discussing family values as foundation of childcare. The school refused to groups childbearing on religious values. There may be separation of church and state, but they can’t tell people not to practice it. 24. Westboro Protest: Picket funerals and protest anti gay at soldiers funerals whether they were gay or not. Gets away with it because they don’t physically intrude on funeral property–demonstrating public streets policy. 25. Chicago Case: Zimmerman poses an ordinance...he could because the school was private. 26. Kaepernick: Similar to the flag burning case. The 49ers quarterback refused to stand for the national anthem because of his beliefs in Black Lives Matter. He also wanted to get traded away to another team because he felt the team didn’t share his beliefs. But despite his distaste for the government’s actions and the fact that he wouldn’t stand for the anthem, he was completely protected constitutionally because it was political speech. 27. U.S v. Fulmer: Clear and present danger found. Combo of provocative tests left a clear and present danger. SAMPLE TEST QUESTIONS True/False, Multiple Choice, and Short Answer (5) 1. Fighting words–if you aren’t in their face, it isn’t fighting words. True or false? 2. Per curiam is a collective agreement and not single..true or false? • TRUE 3. Supreme Court ruled that you should never rule a prior restraint...true or false? • FALSE 4) All state statute prevails in conflict with: • Local Ordinances 5) Not considered in justifying freedom of expression • Equal pay for equal work. 6) First Amendment and High School –KNOW THE HAZELWOOD CASE. (Case where student said something inappropriate in a speech at school.) According to the supreme court, high school principals can pose reasonable regulations on school-sponsored speech, so long as it is correlated and plans to further the mission/education of the school. 7) Define overbreadth. Give an example of an overbroad law and say why it’s overbroad. • Punishes speech that could constitutionally be punished, but also punishes speech that could unconstitutionally be punished. Example of the crush videos or the video game ban for being “too violent” in California or McIntyre v. Ohio Elections Commission (banned a n entire category of speech.) It’s far too specific to which it harms a particular group of people. The law in which it punishes or bans too many things and restricts speech more than necessary. Lawfully prohibits some speech, but unconstitutionally prohib its others. Example: Obscenity for women. 8) Won’t ask about law of equity. Equity is correlated to injunctions, which he will ask about. -injunctions: “classic prior restraint,” can relate to New York Times v. United States 9) Ad hoc balancing versus De finitional Balancing...ad hoc means each case is new and fresh as opposed to operating by precedent. The case is decided individually. On the other hand with definitional balancing, by definition, there is an extra burden to prove actual malice for public figures. -definitional balancing: is predictable and more uniform, courts define the outer limit of free speech before balancing test is applied 10) Near v. Minnesota... first case in which the 14th amendment was used to guarantee natural born rights. 11) Per Curiam “by the court”: Doesn’t have a name to it. Opinion for the court and they are unusual...NY Times v. United States used this. It is binding. Times agree that it should publish, but couldn’t agree on the rationale. Couldn’t agree on any one op inion for the court. All agreed because government didn’t have a heavy burden. Plurality: Has someone’s name on it. Majority did agree to this. Person to choose the opinion of the court but no one joins the opinion. Might not join the plurality because of such small differences. 12) Justices Black and Douglas were absolutists in the Pentagon Papers case. 13) Yassin Case WILL BE ON THE TEST . At least five questions on the exam. He is considering true threat and terroristic threat the same as far as the tes t goes. Summary Judgment: No factual errors. A way of avoiding court. Someone was clearly in the right or wrong to where there isn’t any confusion and can be settled outside court. TERMS QUIZLET/FLASHCARDS HERE : https://quizlet.com/_2i4dfy (Let me know if I messed one up) KEY TERMS • Libel: False statement that would hurt someone’s reputation. • Vague Law: When a citizen with the average intelligence cannot comprehend a law because it is written so vaguely. This could ultimately lead to self -censorship since people wouldn’t know if they were breaking a law or not, so they limit their speech. • Injunction: When a judge tells someone to do something/not do something. A form of prior restraint • Prior Restraint: (I.E: PENTAGON PAPERS CASE) This is the action taken in order to prevent a law from being broken. Judges prefer punishment after the fact than prior restraint because it doesn’t encroach on our first amendment rights. Prior restraint is acceptable if and only if there is an imminent, serious threat at stake and would cause irreparable damage. • Strict Constructionist: Affiliated with conservative l eaders, they choose not to read too much into the law. They take things quite literally. • Activist: Affiliated with liberal leaders, these people consider constitutional rights over the state ones. • Writ of Cert: If a case gets taken or not by the Supreme Co urt. • Rule of Four: Written by the most senior of justices on the majority side. • Opinion of the Court • Per Curiam: No one person writes the rule of four statement • Concurring Opinion: Someone who agrees with what the majority writes. • Dissenting Opinion: So meone who disagrees with what the majority writes. • Plurality Opinion: Less than five people signing it. No majority …but signed by someone. • Affirm: Agrees with appellate court • Reverse: Rejects appellate court statement • Remand: Higher court rejects lower co urt decision by sending the case back to the lower court. • Theory: System of assumptions and generalizations that explain and predict behavior. • Dicta: Language that doesn’t deal with the holding or issue in that case, but lets us know what the court might do in the future. • Counter Speech: Says what it means; showcases conflicting interests. • No de Novo Review: Appellate court can review all facts in case. • Overbroad Laws: Abridges speech too much; restricts more speech than necessary. • Balancing Test: Don ’t know what the law is if every case is balanced individually. So you weigh conflicting values on things like libel, false advertising, etc. • Absolutism: There is no test for this because congress shall make no law. Justices Black and Douglas support this . • Bad Tendency Test: Speech with tendency to cause harm; corrupt public morals; to vague. • Clear and Present Danger: Imminent danger=not protected. NOTES Chapter 1 • Sources of law • Constitutional law : supreme source of law; Bill of Rights; 1st Amendment; ultimate legal authority; hard to amend, so changed infrequently • Statutory law: collection of statutes and ordinances written by legal bodies; conflict with constitution; libel and privacy statutes; preemption • Administrative law : agencies develop rules; FCC, FEC, FTC, FDA, SEC; independent bodies of experts who set policy by analyzing facts • Executive Action: president or other government officials can make law (i.e. executive orders); president can nominate judges to federal courts (including Supreme Court) • Common law: unwritten; judge-made law; judge decides a case based on applying law established by other judges in earlier, similar cases. Privacy is found here from state regulation, not through the constitution. Usually applied to civil cases, NOT statut ory law • Law of equity: allows courts to take action that is fair or just • State vs. Federal Court Structures • Typical State Court Structure: • Trial Courts (where almost all cases begin; also called courts of original jurisdiction; examin facts/evidence) → Intermediate Appellate Courts (everyone who loses in that court has right to one appeal, which is made to this court; review the case and hear oral arguments) → Final Appellate Court • Federal Court Structure • U.S. District Court → U.S. Court of Appeals → U.S. Supreme Court (9 justices, appointed for life; affirm, reverse, remand; decisions: writ of cert, rule of 4, opinion of court, per curiam, concurring opinion, dissenting opinion, and plurality opinion) • Civil Suit: plaintiff v. defendant (person sues person); complain filed, and then defendant served with summons, p ossible motion for summary judg ment, discovery is info-gathering process • Criminal Case: begins with law enforcement investigation, arrest, preliminary hearing (determine if probable cause), indictm ent • Public versus Private Figure: For a public figure, actual malice must be proven. Civil suits for private figures are a little easy to prove. Chapter 2 • Of all speech, political speech is the most protected by the first amendment. • Truth: Milton and Mill believe this -Milton “Marketplace of Ideas” • Government: Meikeljohn “absolutist” believes this • Value: The Attainment of Truth: Milton and Mill are both advocates of this specifically. This concerns that truth will be found because of the marketplace o f ideas, that censorship is repugnant, that censorship blocks truth, and that truth wins in the long run. Meanwhile, Mill thinks that truth is desirable and may come from free speech. However, truth doesn’t always win and we need freedom of speech to get the truth. • Value: Governance: Meikeljohn is an advocate of this specifically. Is a fan of the absolutist lifestyle. So congress shall make no law and the first amendment protects the first amendment absolutely. The first amendment serves voters in a democracy so speech could be about philosophy, education, arts, etc. Wouldn’t have to protest hate speech, false speech, but then again, that wouldn’t make Meikeljohn an absolutist. • Justices Black and Douglas are both for absolutism. • Value; Change with Stabili ty: This concerns a “safety value” that Emerson advocated. Speech is treated as a gradual game change and keeps the “crazies” in view. • Fulfillment: (I.E: Mr. Rogers –I like you for you) This is a fundamental personal value and is natural law. • Value; Checking Power: Advocated by Biasi, this has the media provide institutional check on government. This is especially in pathological periods such as the pentagon papers. • Regulating Expression: Judges ultimately make the final decision. Utilizes the incorporation of the bill of rights in state cases by basing it off the 14th amendment. Gives born and naturalized citizens access to their rights provided by the first amendment. The federal government wants to make sure no one is being alienated of their rights, so the 14th amendment ensures the rights by a back up “Bill of Rights” clause that no one can get out of. • The 14th Amendment: Can’t abridge privilege of immunities. However, gives equal protection and due process rights. This is applied to state actors ONLY . Private schools don’t issue state action. • Net Neutrality: 2015 FCC (broadcast regul ators administration) imposed net neutrality on wire line/wireless broadband providers. Broadband no longer provides info services and broadband providers must treat all content providers the same. FCC not regulating the prices, but the issue was the FCC renamed/reclassified the broadband providers as “telecommunications” • The First Amendment Due Process: It is free speech essential ly. Also, there must be burden of proof on the government (I.E: if they want prior restraint) and the government must not act arbitrarily. While the government must provide notice and hearing, there also needs to be quick judicial review. • Content Regulation : These regulations are most serious. They are aimed at speech and require strict scrutiny. It’s unconstitutional, however, unless it meets these standards. • Subject Matter Regulation: Two types of this are political speech and educational speech. This overall is a type of content regulation. • Viewpoint Regulations: This is a more serious version of content regulation. It regulates specific views. Ex: Texas v. Johnson • Content versus Non content Regulation: Content deals with subject matter regulations and viewpoint regulations. Meanwhile, non-content regulation is aimed at traffic, noise, beauty, etc. So the government has to show substantial interest firstly, and then if that goes through, the government ban is narrowly drawn. • Examples of non-content regulation: Ordinance prohibiting parades at 3 a.m. in residential areas. Regulation is not aimed at content, government has substantial interest in preserving quiet neighborhood, and the regulation is sufficiently narrow. Ex: Ward v. Rock Against Racism • Forms of Unprotected Speech : Clear and present danger, true threat, and fighting words. • Tests That Have Been Used To Assess A Case: The Balancing Test, Absolutism, Bad Tendency Test (Gitlow v. New York), and The Clear and Present Danger Test (Schnek v. U.S). • The Strict Scrutiny Test: Has to follow two parts in order to pass. If the court doesn’t see a compelling interest (the first part of the test), they don’t even bother to see if it is narrowly drawn. Meanwhile, a non content regulation doesn’t even deal with if it’s narrowly drawn or not. • There is a hierarchy of protected speech: Fighting words 1. Must show a compelling interest in the regulation. Examples of this are national security or preserving life (soldiers, citizens, etc.) The compelling interest mu st provide enough info to voters, fraud, libel. 2. Must be most narrowly drawn. An example of this would be a subject matter regulation of law banned anonymous campaign literature. Chapter 3 • Prior restraint and post -publication punishment o Near v. Minnesota: court was struck down a state statute that permitted an injunction (order from a court telling a person or company to perform or refrain from some act, such as publishing.) to halt malicious, scandalous, or defamatory publications § Under the statute, publishers could avoid an injunction if they could prove that a publication was true and made with good motives o Injunctions § Courts willingly use to halt obscenity, false advertising, speech that is outside constitutionality § Otherwise, delaying di ssemination of such expression is less damaging to freedom of expression than delaying political speech, because less value accorded to commercial and sexual expression § NY Times v. United States aka Pentagon Papers case • Based on the secret study of the Vie tnam war commissioned by defense secretary Robert McNamara (before he left office) • Papers documented how republican and democratic administrations had misled the American people about the nations objectives in southeast Asia o Minor author Daniel Ellsberg, w ithout authorization, provide the Times and later the Washington Post with classified documents • After publication began, Nixon asked justice department to seek an injunction because publication would cause irreparable danger to national interest, arguing that it would prolong the war • Court rule 6-3 that the first amendment did NOT permit an injunction • A per curiam freed the papers to publish because the government had not met its "heavy burden of proof" • Real opinion found in the 9 dissenting opinions o Justice Black and Douglas asserted absolutism arguing they could not imagine a situation in which the government could meet its "heavy burden" to justify prior restraint o Justice Stewart, White, and Marshall said a prior restrain might be justified if congression al legislation had authorized one in such a case o Justice Burger, Harlan, and Blackmum thought the case should not be decided so swiftly, and disappointed about no return of the stolen papers o Prepublication agreements § Federal employees throughout executive branch sign a standard non-disclosure form prohibiting disclosure of classified information § CIA signs a contract subjecting them to lifetime obligation not to publish information • Snepp publication o No classified material o Snepp's argument was that CIA imposed an unconstitutional prior restraint by subjecting all his expression to prepublication review, was rejected by courts o Even without confidential information, the information might damage national interests and inadvertently reveal classified information o Snepp's punishment was the imposition of a "constructive trust," on all earnings from book, movies, interviews, etc. o Military scrutiny review § Prior restraint is imposed by the military on press coverage of combat operations § Carefully controlling press acces s to military bases and operations § Security review: military commanders' in the field option of subjecting news stories to review by military officials, intended to ensure that journalists comply with the ground rules o Licensing § anyone may start a newspaper without a license, publishers do not interfere with the voices of other publishers § Licenses are required for broadcasters in order to prevent interference on the use of the electromagnetic spectrum o Public forums § Public facilities, such as streets, must be available to all, regardless of whether government officials agree with the views expressed o Motion pictures § Supreme court believes that each medium of communication presents "peculiar problems," and has rules that local governments may license motion pict ures as a means of dealing with ^ • Motion picture standards must not be unconstitutionally vague o Therefore, local governments no longer license films even though they have the authority to do so § Court imposes a strict procedural requirement to minimize unnecessary curbs on protected expression o Broadcasting § Licensing of a broadcaster has been ruled to not be a prior restraint § Electromagnetic spectrum is the main concern for licensing of broadcasters • w/ the limited serving of licenses, broadcasters are required to serve the public interest o Required to provide airtime to federal candidates § FCC grants license o Cable § Coaxial cable/ fiber -optic cable is stung on a utility pole or underground § Because local cable signals are not sent "over the air" through the broadcast spectrum, cable operators are not required to obtain broadcast licenses § Local governments grant licenses called franchise to cable operators, authorizing construction and operation of a cable system • Los Angeles v. Preferred Communications Inc. o PCI requested LA city for a franchise to expand their reach to the south central district and were denied o PCI brought suit claiming that its first amendment right to construct and operate a cable system was violated § Course was remanded, refused to be seen twice by supreme court § FCC found that local governments were acting unreasonably by delaying action on franchising of phone companies, requiring applicants to pay for pools, rec centers, landscaping. • FCC adopted rules requiring franchise authorities to act o n applicants within 90 day and the costs in -kind contributions counted to 5% cap on fee o Internet § Supreme court confirmed that the first amendment fully protects the internet • Discriminatory taxation o First amendment does not exempt publishers and broadcaster from regulating business but first amendment may be used to strike down regulations that are based on content or disproportionate burden on the media • Punishment after publication o More common than prior restraint o Lawful newsgathering § Unlawful = stealing, t respassing, illegal shit (duh) • Content neutral regulations o Government rarely ban and entire form of expression § Total bans are generally unconstitutional o Time, place, and manner test: regulation of where and when expression is made as opposed to what is said. § Courts must ask whether the regulation is content neutral aka whether the government has adopted the regulation to control something other than the m essage conveyed by expressive activities o Content neutral regulation must not be based on government hostility to particular messages o Courts assess whether the regulation is narrowly tailored to serve a significant governmental interest (preserving a park o r keeping streets clean) • Content neutrality o Burning of draft card United States v. O'brien § Draft card law was content neutral because it was adopted not to punish dissent but to allow the government to raise armies quickly and efficiently by requiring elig ible men to carry classification certificates HOMEWORK Chapter 1 Chapter 2, Part 1 1. Is there a "theory" of freedom of expression? Pp. 27 -33? Why should we care? No there is no “theory of freedom of expression. We should care because it shows that freedom of expression can’t be predicted or rationalized within an all -encompassing theory. 2. List five values served by freedom of expression. Attainment of Truth, Governance, Check on Government Power, Change with Stability, Fulfillment. 3. Does one need to believe that "truth" will ultimately prevail to justify support for the marketplace of ideas? No, the search for truth relies upon the individual. 4. Why is Meiklejohn called an "absolutist?" He said speech that contributes to “the business of government” should be absolutely protected from government intervention. 5. Is Blasi's "check on government power" different from the "government" value of freedom of expression? How? No they are similar, the “check on government power” is just to make sure the government does not become too powerful. Content regulations, pp. 33-42 6. Did freed slaves and other state citizens enjoy freedom of expression immediately after adoption of the fourteenth amendment? Briefly explain why not. No because state laws would trump over federal law which led to Jim Crow Laws i.e. separate but equal. 7. Explain to your bright 15 -year-old brother with an example illustrating what it means when the Supreme Court rules that the first amendment applies to the states through the fourteenth amendment. Near v Minnesota, almost all of the clauses of the Bill of Rights have been applied to the states in a process frequently called incorporation. The Supreme Court incorporated the various clauses of the Bill of Rights into the Fourteenth Amendment, ruling that the state laws violate the Constitution by denying citizens either their privileges and immunities, equal protection of the law, or due process. 8. What is the significance of the “incorporation” of the Bill of Rights into the foeenth amendment? This allowed equal protection and the federal government to strike down state laws that would violate constitutional rights. 9. Your opinion: Is the FCC correct to impose “net neutrality” on Internet broadband providers, treating broadban d service providers as “telecommunications” services — common carriers, utilities —who must accept content from all content providers equally. The previous classification of broadband providers —“information services”— prohibited imposition of net neutrality b ecause information services have First Amendment rights to speak and publish. Pages 36 -37. Yes. 10. What are the two elements of "strict scrutiny?" (1) Justified by a compelling government interest and (2) narrowly drawn so as to impose the minimum abridgment of free expression. 11. Why did the Ohio law prohibiting anonymous campaign speech in the McIntyre case flunk the Court's strict scrutiny test? Because it unconstitutionally banned a category of political speech, the category designed to influe nce voters. 12. Why is burning the American flag free speech? Because the law was aimed at the content of political messages. 13. Explain to your bright 15 -year-old sister the reasons for declaring (a) vague laws and (b) overbroad laws unconstitutional? Explain the difference, with an example from communication law, between vagueness and overbroad. A vague law is unconstitutional because it inhibits speech by making speaker unnecessarily cautious, University of Michigan policy banning speech or action tha t “stigmatizes or victimizes.” An overbroad law may be clear about what it prohibits, but it prohibits too much; the Supreme Court ruled that the Communications Decency Act was overbroad because it not only banned Internet sales to minors of indecent pictures and texts but also prohibited parents from searching the web for indecency with their children. 14. Councilwoman Pat Triot reminds the City Council that she supports freedom of expression, especially “legitimate” criticism of American policy, includin g the long war in Afghanistan. But she draws the line at criticism that “crosses over” into speech that “undermines the mission of American troops fighting for freedom and puts our soldiers at increased risk of death.” She particularly dislikes a local we ekly newspaper and website, the Rag, that vehemently criticize the president and the war. Triot proposes an ordinance banning sidewalk distribution in the city of any newspaper or pamphlet that “aids the enemy by undermining the president or urging defeat of American troops serving the cause of freedom.” The same ordinance applies to anti-war websites produced in the community. The next week, applying the ordinance, city officials remove the Rag’s distribution boxes from the streets and shut down the Rag’s antiwar website. The Rag sues, arguing the ordinance is unconstitutional. a. Is the ordinance a content regulation? Yes or no? Explain. Yes, because she tried controlling the content that would be written. b. Applying strict scrutiny, tell wh y (or not) the government has a compelling interest to halt the Rag? The government doesn’t because the publication doesn’t incite violence and is not threatening the government. c. Argue either that the ordinance is constitutionally narrowly drawn or is unconstitutionally overbroad and/or vague. The ordinance is unconstitutionally overbroad in that it prohibits undermining the president and urges the defeat of American troops, but it’s vague because it doesn’t narrowly define specifically undermining the p resident. Legal Tests, pp. 42-46 15. What's constitutionally deficient about the "bad tendency" test? It provides virtually no First Amendment protection for speech. 16. What is the current formulation of the clear and present danger test? When might the Supreme Court find a clear and present danger? “Words are used in such 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.” When an individual makes a threat to a person or a business. 17. Would Dennis v. United States —decided during the McCarthy era and holding that membership in the Communist Party presented a clear and present danger —be decided the same way had Brandenburg been decided before Dennis? No, because neither of them incited the action and nothing occurred from it. Since the Brandenburg decisions were overturned, then the Dennis decision would as well. 18. Does the law employ a clear and present danger test in libel cases? Why or why not? No because the clear and present danger test is aimed more towards speech that presents immediate danger of unlawful action, balancing test would be better. 19. What are objections to a balancing test? Judges do not like to weigh conflicting interest against each other, which is why they engage in ad hoc balancing now. Chapter 2, Part 2 Protected (and unprotected) Expression, Content and Speakers, pp. 47 -55. 1. Why are advertising and non -obscene sexual expression less protected by the first amendment than political speech? They are supposedly less valuable than political speech. 2. Is “hate speech” a legal category that can be prohibited or punished in the U.S? No, it cannot be prohibited in the U.S. 3. Are there sub categories of hate speec h that can be punished? Fighting words. 4. How does the Supreme Court define “fighting words?” Those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. 5. In Virginia v. Black, the Court ruled that cross-burning may constitute a true threat. In what circumstances? If the purpose of the burning is to intimidate such as burning a cross in a black person’s yard. 6. When the Supreme Court struck down the St. Paul ordinance in R.A.V. (pp. 50-51), did the Court say the first amendment protects a citizen’s right to burn a cross on a black family’s front lawn? Scalia said cross burning might have been punished under laws that do not curb speech but prohibit illegal actions such as arson, terroristic threats, or criminal damage to property. 7. Do you think the Supreme Court should have ruled that Anthony Elonis’s internet posts constituted a true threat because his estranged wife perceived a threat? Or should the prosecutor have to prove Elonis intended to threaten his estranged wife? No because there is no constituted statement for what a reasonable person is. 8. What’s the difference between a true threat and fighting words? Fighting words are threat to an individual’s life and true threat is a perceived threat to an i ndividual’s life. 9. Safya Roe Yassin, 39, was charged in February by Missouri prosecutors with conspiracy and transmitting a threat in violation of a federal statute punishing communications containing “any threat to injure.” Yassin allegedly tweeted and retweeted several threatening posts, including a retweet linking to lists of the towns of residence and phone numbers for 150 U.S.Air Force personnel with the quote: “Rejoice, O supporters of the Caliphate State, with the dissemination of the information to be delivered to lone wolves...God said: ‘And slay them wherever you may come upon them.’” Yassin claimed she was a “neutral reporter” with no intent to harm or threaten. a. Considering decided cases, do you think Yassin’s tweets could be considered a tr ue threat? Yes, if the lives of the U.S. Air Force personnel were harmed. b. Can the retweet of someone else’s words be a true threat? Yes, if people become physical and threaten the life of another. c. Can the U.S. government demand that Google and Twitter pull down “extremist” speech? No because extremist speech is still free speech and is protected. 10. Why did the Supreme Court rule in U.S. v. Stevens that depictions of animal cruelty are protected expression? Page 54. The court deemed the reaso n being was the law was overbroad. -if there was a ban of depictions regarding animal cruelty, without a narrow definition, then bans prohibiting hunting magazines would be permitted Who is protected. pp. 55-69. 11. Be familiar with the various rights protected by the first amendment. Publishers have stronger first amendment rights than broadcasters and advertisers. Why? Because broadcasters and advertisers need to be licensed unlike publishers. 12. Public Forums, pages 59-69. Pay particular attention to the high school and college free speech cases. The most important high school case is Kuhlmeier. The Kuhlmeier brief is in chapter two materials. 13. How does a court define a public forum? Public property dedicated to public discourse, such as a speaker’s corner, or public property traditionally open to public debate, such as streets and sidewalks. The law also recognizes a nonpublic forum in public property, such as an army base, dedicated to purposes other than free speech. 14. Why would a college student prefer to work for a public forum newspaper or web site instead of an on-campus paper or website that is not designated a public forum? The university can tell you what you can and can’t write and so public forum newspapers and websites have more freedom. 15. Is The Red and Black a public forum? Is UGAzine a public forum? WUOG? Was the newspaper at your high school a dedicated public forum? Yes, the Red and Black is a public forum because it is not affili ated with UGA. UGAzine and WUOG are not public forums because they are on UGA property and hence affiliated with the university. No my high school paper was not a public forum. 16. Can you reconcile the Bland case (p. 62) —holding that a government emplo yee has a First Amendment right to hit the FaceBook “Like” button for a candidate opposing the employee’s boss—with Garcetti—holding a government employee may be punished as “disruptive” if he criticizes a fellow employee in a note to the boss. There shoul d be no punishment in either of the situations as long as it is not against policy. 17. When can high school officials punish student speech generated off campus? They can only punish when the students display a true threat. 18. The City of Atkins is p lanning its annual Christmas parade. The theme: “I’m Dreaming of a White Christmas.” The local chapter of the Ku Klux Klan is also dreaming of a white Christmas. The Klan chapter votes to spend $3,000 on a float and submits a reservation form and a $25 entry fee to the city to enter the float in the parade. But the city commission does not want the Klan in the Christmas parade. Some commissioners fear that black and white citizens would be offended and might become violent. Parades, especially violent one s, require extra police earning overtime pay. What does the first amendment permit the city to do? Ban the Klan? Let the Klan enter a float? Hire extra police? Cancel the parade? Several of the above? It is a public forum so the city can’t do anything abo ut it. They could hire extra police or cancel the parade, but that’s about it. Chapter 3
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