Exam 1 Study Guide
Exam 1 Study Guide SMPA 2173
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Laura Castro Lindarte
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This 24 page Study Guide was uploaded by Laura Castro Lindarte on Sunday October 2, 2016. The Study Guide belongs to SMPA 2173 at George Washington University taught by William L. Youmans in Fall 2016. Since its upload, it has received 38 views. For similar materials see Media Law in Journalism and Mass Communications at George Washington University.
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Date Created: 10/02/16
Date of Exam: October 6, 2016 Exam 1 Study Guide: ● Exam format will be: ○ 25 multiple choice questions (scenarios, truth and false) ○ 10 case matching (cases on outlines) ○ 7 to 8 short answers ○ 1 essay with a scenario where you have to provide possible outcome by citing other cases ● Chapter 1: The Rule of Law: Law in a Changing Communication Environment ○ The idea of rule of law requires that laws are clear and easy to understand/implement in a way that is fair ○ Starid dicisus: courts look at what was ruled in past and do the same thing (PRECEDENT) ○ Due process: following legal procedure o provide fairness ○ Jurisdiction: the authority to hear specific legal matters (based on geography or topics) ○ Supreme Court has original jurisdiction and appellate jurisdiction ■ Defined by Constitution ■ Jurisdiction of other courts decided by Congress ■ Original jurisdiction = hear case first; appellate = review lower courts’ cases ○ Court system divided into state and federal: ○ Forum shopping: parties looking for districts that are FAVORABLE ○ Trial courts are important becau vidence begins/is gathered here ○ Trial → Jury; appeal → panel judges usually 3 judges panel but sometimes more) ■ En banc: all appeal judges are brought in ○ The court system is evidence o upremacy clause ○ Trial court parties: ■ Judge: runs cour ives information to jury, give punishment, set up time/day, controls what is happening a. Can be nominated or elected ■ Lawyer: write brief and oral presentation ■ Parties or defendant in criminal t oth parties get to advocate their sides ■ Jury: decides which party made more convincing case ■ Evidence: what both parties present ■ Witnesses: individuals parties bring to testify on what happened ■ Crossexamination: lawyer of one side questioning witnesses of other sides ○ Appellate Court: 13 circuit courts in federal level ■ Decision in one appeal does not bind other appeal court but yes on lower courts ■ Judge: can overturn decision of lower court ■ Lawyer: ring in brief of why overturn or not ■ Brief: written by lawyer ■ Trial records: all evidence and information from lower court trial ■ NO JURY, EVIDENCE, WITNESSES, CROSSEXAMINATION ○ U.S. Supreme Court: ■ Highest court, 9 justices ■ Can’t hear ALL cases so a rit of certiorari (request) is turned in a. 4 of 9 must agree to hear case ■ Parties turn in briefs presenting facts of trial with NO NEW FACTS ADDED ■ Per curiam opinion: UNSIGNED o pinion b HOLE court ■ Memorandum Order: decision with O OPINION ■ Concurring Opinion: eparate opinion by justice GREES BUT FOR DIFFERENT REASONS ■ Dissenting Opinion: eparate opinion by justice ISAGREES ■ Can send back to lower court throug emand ○ Judicial review: Supreme Court interpret the Constitution to see if law is okay ■ Began after arbury v. Madison in 1803 ■ Originalists ant to figure out what writers wanted exactly ■ Textualists: l ook only at what is written ■ Activists: look through ide onstitution needing to change to fit what is occurring NOW ○ Statutes: written law by ruling body that follows Constitution ○ Equity law: judgebased law ■ BASED ON FAIRNESS ■ When law in not clear ○ Common law: rules/customs made by RECEDENT ■ Seen at courts of similar levels ■ Subject to change ○ Administrative law: executive branch administrative agencies’ rules ■ FCC → oversees interstate communication technology ■ Can have quazicourt systems ○ Executive orders: order from government executive president, governor or mayor) ■ Recently has limited media access to military, excluded public from meetings of groups advising in energy and limited access to presidential records ○ Case Process: Civil suits (can take years to complete) ■ Plaintiff = one suing, defendant = one being sued a. Plaintiff must show that the harm is related to the law ■ Tort = civil harm ■ Begin with omplaint (document by lawyer showing facts, putting fault onto defendant and explaining harm to plaintiff ■ Service of process: defendant is informed ■ Preliminary motions: ight get dismissed or continue ■ Answer to complaint: espond to specific facts presented ■ Discovery: both sides begin uild cases a. Subpoena = court order to get information ■ Pretrial motions: changing location or jurors (many more motions exist) ■ Trial: both sides present cases to jury or judge ■ Final judgement or appeal a. AT ANY POINT THE TWO SIDES CAN NEGOTIATE ○ Summary judgement: o ne side can ask for this is law is obviously on their side ■ Judge looks at it with a bias against side that asked for the summary judgement and makes a decision ○ Voir dire: building of jury ■ Both sides can go pool the jurors to chose who they want and who they don’t ■ Peremptory challenge: ight of either side dismissing ithout reason ○ ○ Briefing Cases: first page notation of each case ■ FACTS: key info what happened) ■ ISSUE: one sentence question that is at stak yes or no question on fundamental topic) ■ RULE OF LAW: most important laws in case and precedent ■ ANALYSIS: what was court’s reasoning ( tests come here) ■ CONCLUSION: what court decided ( including vote) ○ Writ of Mandamus: power for court to be able to order government official to do something ■ No longer a power of the supreme court after Marbury v. Madison ■ Given to Supreme Court by Judiciary Act of 1789 ● Chapter 2: The First Amendment: Speech and Press Freedoms in Theory and Reality ○ The first amendment is not a freedom of information act → limiting power of government but not allowing press to have access to all things ○ Negative liberty: freedom from government interference, positive liberty: granting by government to people ○ Ad hoc balancing: review each case separately Case by case) ■ When it comes to freedom of speech, ad hoc balancing is preferred over categorical approach ○ Categorical approach: think categorically of type of speech ■ Decision based on category of speech not facts of case ■ Follows precedent or establishes new precedent ○ Chaplinsky v. New Hampshire: jehovah witness called police officer a “damned fascist” because got arrested ■ Supreme Court said that it is useless speech that has no furthering ideas so exception to the 1st amendment ■ Created categories calle “fighting words” ○ Origins of 1st amendment: ■ England had suppressive laws in American colonies that LIMITED PRESS, SPEECH and other → c ontrol exchange of ideas ■ Prior constraint: stops publishing of someth by government) ○ Influence by: ■ Milton’s Areopagitica: if you control speech you doubt power of truth ■ Locke: people enjoy natural rights freedom of expression is CENTRAL TO RIGHTS ■ Rousseau: compromise in social contract → exchange of rights and lower government power to ensure stability ■ Blackstone: free press is essential to state ■ Zenger trial enger wrote seditious libel ourt said that it was against law but okay because true ○ 1st amendment values: ■ Instrumental vs Intrinsic reasons: a. Individual liberty b. Selfgovernment c. Limited government power d. Attainment of truth e. Safety valve (cool off) f. Free Speech as an end i. Intrinsic, rest are instrumental ○ Near v. Minnesota (1931): N ear wrote “saturday paper” saying that officials working with gangster → o fficials got injunction to prevent publishing a. State law that prevent publishing of things that are lude or nuisance ■ Lower court okay with it ■ Supreme Court said that the government can hold papers accountable for false information AFTER PUBLISHING, NOT BEFORE → narrow exception where this can be done (54 decision) ○ Pentagon Papers: N ew York Times v. U.S. ■ Nixon administration tries to prevent New York Times and Washington Post from publishing study of U.S. interaction in Vietnam a. Nixon said that it was a threat to national security classified information) b. Court said that security can’t be enough reason → NEEDS IMMEDIATE THREAT to be okay ○ Hot news and TheFlyonTheWall.com: ■ News where information getting out a. Court wanted to protect wire news agency and prevent unauthorized users from hurting authors ■ Fly on the Wall were publishing Wall Street information which led to Wall Street firms to ask to delay a. Court said that the firm recommendation was fact so were allowed to be published as news ○ Contentbased laws: w hat is being said ■ STRICT SCRUTINY: a. Is it necessary? b. Does it advance government interest? c. Can’t go further than needed ○ Contentneutral laws (TPM laws): where, when, how they can speak ■ INTERMEDIATE SCRUTINY ■ Symbolic Speech: a. U.S. v. O’Brien test (1968): i. Burned draft cover which is illegal ii. Not intended to suppress speech iii. Advances important/substantial interest iv. Is narrowly tailored ○ Court Scrutiny: Judicial Review ○ Political speech: elections and campaign finance ■ STRICT SCRUTINY because is related to what 1st amendment and the Constitution is about ■ Debate on whether giving money is political speech or not ■ Campaign finance: DEREGULATION a. Buckley v. Valeo (1976): upheld government law that limited and said that campaign spending is political speech i. Limiting campaign spending has harms b. BCRA (2002): a ct limiting campaign spending i. Ban on soft money and corporate and donation communication 30 days of election ii. McConnell rule upheld BCRA because party group could not advertise c. FEC v. Wisconsin Right of Life (2006): a dhoc ruling, ad was punished but ourt said that banning ad would decrease political speech of organizations d. Citizenship United v. FEC (2010): b uilds PRECEDENT, brought down ban on independent organization giving money and ads e. SpeechNow.org v. FEC (2010): s uper PACs increased as places where independent corporations could give money ■ State regulations: a. Randall v. Sorrell (2006): ourt brought down Vermont law limiting how much money candidates can spend in their campaign because it did not allow them to campaign efficiently b. Nixon v. Shrink Missouri Government PAC (2000): if narrowly tailored, regulations can continue ○ Anonymous Speech: mixed view (recognize tradition to protect it but in certain circumstances it is not protected) ■ McIntyre v. Ohio: McIntyre didn’t put name on pamphlet which broke Ohio law a. Supreme Court said not narrowlytailored to control bad speech so not okay ■ Doe v. Reed: state referendum on gay marriage so needed petition with signatures and organization wanted signatures to be released, a. lower court said that giving signatures help validate elections of referendum, intermediate scrutiny, no autonomous in ballot i. Different because McIntyre had clear government interest to check that there are no fake signatures ○ Government speech: speech by government or government officials ■ Not okay if you say it while on the job ■ Pleasant Grove City v. Summum: court said that government gets to chose what monuments they put in public space ■ Garcetti v. Ceballos: only protected if the speech occurs as civilian not during their civic duties ○ 1st amendment will OT PROTECT FROM PRIVATE ○ Public and private forum: ■ Transitional public forum IGHEST level of right, areas that have historically been there for use of peop overnment can set up rules to regulate/administrativ good if contentneutral) ■ Designated public forum: an be used for public use with a limit (sometimes public, other times it is not) → government property ■ Private property as public forum igh degree of public interactions so quazipublic, courts says that owners can have to allow it a. Pruneyard Shopping case: t eens actions don’t harm owner of shopping center so okay ■ Virtual forum: nonphysical example of government funding for expression okay as long as neutral oneybased forum ■ Laws of general application inimum review ○ Compelled Speech: f orcing someone to stand with something ■ “Life free or di ourt said that okay not to show slogan on license plate ■ Boston’s St. Patrick’s Day Parade: LGBT wanted to be part but organizers said no, court said that LGBT community could find other ways to show message because compelling organization to have to show representation of message they won’t support ● Chapter 3: Speech Distinctions ○ National Security: ■ During time of conflict government may pass laws to limit speech (courts differ more) a. No tests for time instability or stability no declaration of war or clear beginning and end b. Unclear especially in was of terrorism because invisible enemy (not state) ■ Holder v. Humanitarian law project: a. Material support: giving resources and money b. Teaching terrorist group how to appeal to humanitarian law to show ideas c. Nonviolent training but upreme Court said that providing support (of any type) will help them since saves them money ■ U.S. Patriot Act: 2001 a. Post911: give more power to law enforcement to look after terrorists, amendment 15 existing codes of criminal, wiretap and immigration b. Sec 206: increase surveillance of electronic communication i. Might affect free speech because will be paranoid of what you say c. Sec 215: relaxes oversight of search warrants i. Give government more latitude to get information d. Companies didn’t have to expose what was happening ○ Court says that national security and maintaining public order is biggest government interest ○ Clear and present danger: WI Cold War ■ Schenck: antiwar activist pass out pamphlets to go against wa ormally wouldn’t be problem but during war then it goes against national interest (WWI) ■ Debs: convicted for saying “you are fit for something better…,” he said that it was political speech a. Having political status actually made his remarks more dangerous b. Antiwar effort ■ Abrams ■ Gitlow: socialists writing might led to revolt ■ Witney: membership in communist party, embership alone is not enough need more proof ■ Smith Act: okay to say government overthrown is not real proof ■ Clear and present is too broad and can be used for political activity and social change ○ Brandenburg (or incitement) test: ■ Brandenburg wanted to take revenge against government but i s speech the same thing as political conspiracy? ■ Advocacy of illegal activity can be punished if: a. Directed toward INCITING (let’s do something) b. Immediate ( lets do something NOW) c. ILLEGAL action d. Likely to produce that action ○ Offensive speech: peech that shoves senses ■ Cohen v. California: guy’s jacket was offensiv ourt said that Fword needed to convey emotion a. Cursing could be needed for political speech to be effective ○ Fighting words: language directed at individual ■ Chaplinsky v. News Hampshire: j ehovah witness insult cop, ourt upheld by saying that words did not add any value to society ■ Terminiello v. Chicago: riest makes speech and makes crowd want to be aggressive, that is what words should do (cause emotion) ○ Hate Speech: speech that is based on category of people (religion, race etc) ■ Usually unconstitutional because of strict scrutiny ■ R.A.V v. St. Paul: teens set cross on fire on African American’s front yard a. Supreme Court said that law was too narrow and could be used to punish more ○ Harmful Images: ■ U.S. v. Stevens: Stevens make videos of dog fighting which broke fed law prohibiting video of animal harm a. Court said that is okay because not doing action but showing (didn’t want new category) ○ Intimidation and true threats: ■ Virginia v. Black rossburning in multiple homes a. Court said okay because it is true threat (speech to cause fear of listener) i. Different from teen case because different law, also a history of violence in South ■ Elonis v. U.S: shows murky lines in true threat, Elonis began to post explicit lyrics against wide who left him and scared wife a. Complicated because of subjective vs objective intent (reasonable person) b. Lower court said that reasonable person would see threat c. Court said that needed to be subjective intent (actual state of mind to do crime) i. Objective = outsider, subjective = what he intended ○ Burning Speech: ■ Texas v. Johnson: Johnson burned flag which was illegal under Texas law a. Supreme Court found that there was no appealing government interest and that law was contentbased (served no larger purpose) i. Usually symbolic speech is held to intermediate scrutiny but Texas v. Johnson was held to strict scrutiny ii. Unlike draft case when burning draft cards could actually hurt the drafting process, brunning the flag has no government interest ■ Justice Brennan said that peech being offensive is not enough for it to be regulated ○ Speech in schools: ONLY PUBLIC SCHOOLS, NOT PRIVATE ONES ■ Court has given school parental authority over kids but still a governmental body so not completely free to restrict students ■ School are limited public forum, eneral rule is that limits must be justifiable by impacting the school’s goals ■ Protests in school: a. Tinker v. Des Moines Independent Community School District: students wore black armbands and got suspended for refusing to take them off i. Supreme Court said that wearing armband was “pure speech” so protected by 1st amendment (schools need to show that expression interferes with educating mission) b. Morse v. Frederick: Frederick displayed a banner that said “bong hits for Jesus” to get on TV and got suspended for refusing to take it down i. Supreme Court said that school was meeting mission and that banner went against antidrug policy (not political speech or protest) ii. OK TO STOP SPEECH THAT GOES AGAINST EXISTING SCHOOL POLICIES ○ Offensive or inappropriate content: ■ Island Trees Union Free School District: l imit library abili ontrol what books are seen in library ■ Bethel School District v. Fraser: required student assembly and speakers running for office made dirty jokes, upreme Court said okay to punish speakers because schools are suppose to teach how to be respectable citizens and speech went against school policy ■ Hazelwood v. Kuhlmeier: p rincipal censored 2 pas in schoolsponsored newspaper because going against privacy of those interviewed, S upreme Court rules that what s written in schoolsponsored paper will be credited to school so okay to control message a. High school newspaper ○ Compelled Orthodoxy: s chools can’t force students to express beliefs that they don’t believe in, seen in pledge cases ○ Religion in schools: ourts ban religious content but say chool should provide neutral setting for religions ○ Campus speech: U niversities have obligation to maintain broad discussion ■ Public University funding of groups should be neutral ■ Case with signing of statement of believe okay because by forcing people to sign a statement of believe the club was limiting who could join it ○ Speech codes: usually get struck down ● Chapter 4: Libel & Emotional Distress: The Plaintiff’s Case ○ Libel is one example of defamation ■ Designed to protect individual reputation messes with 1st amendment because free speech allows for criticism so blurry line between criticism and hurting someone’s reputation) a. Long common law tradition ■ Libel: written words, slander: spoken words ■ Seditious libel urting overnment’s reputation (can be illegal to censor) a. Sedition Act of 1798: nyone talking, publishing or writing about government could get arrested b. Have chilling effect on speech (stop people from speaking) ■ MUST HAVE DAMAGE TO REPUTATION ■ SLAPPs: strategic lawsuit that is created to quiet (chill) speech a. Parties with most resources can use libel to silence people, antiSLAPPs statutes have allowed defendants to have defense paid for (increases the cost of unfair lawsuits) ■ Internet has led to more libel because anonymous is easier, allows defamation to spread faster and easier publication and correction a. Decreases libel cases because how hard it is to win them, usually get settled out of court ○ Libel defined: The Plaintiff’s Case ■ Statement of fact (NOT OPINION) ■ Publication was it published?) a. Third party rule: t least one other person not plaintiff or defendant serves as publication i. When dealing with the mass media publication is assumed b. Replication: re those that republish held responsible? i. Usually republisher is as responsible as is the originator c. Vendors and distributors: hose that are selling, different because distributor doesn’t edit studd unlike publishers i. ISPs are distributors NOT PUBLISHERS (communications Decency Act (CDA) intermediate vendors are not held accountable) ii. Reno v. ACLU brought down many of CDA except this ■ If unknown publisher, laintiff must show that TRIED TO IDENTIFY AS MUCH AS POSSIBLE, STEPS TAKEN TO IDENTIFY AND CASE WOULD WITHSTAND A MOTION TO DISMISS (strong case even without identity) ■ Identification: i s what is being said about plaintiff? Make it difficult to sue when not direct a. Identification of a group member without name ( 25 or fewer, sometimes less than 100) b. Identification in fiction = NOT CLEAR ANSWER c. Directly named meets standard, also picture, description (easily seen by outsiders) ■ Defamation: A CTUAL injury to reputation a. Libel per se: obvious and direct b. Libel per quod: not direct (requires proof) c. Reasonable person standard ■ Business reputation: ssentially same requirement to sue ■ Trade libel: l ibel of products ○ Falsity: substantially true (mostly true), substantially false (mostly false) ■ Minor false details not enough to win case ■ Look at substance, the gist, the sting of the libelous charge can be justified a. Implication and innuendo: i mply wrongdoing (indirect and can amount to false statement) ○ Fault: ■ Negligence: f or private figure, minimum level of fault that needs to be shown → ordinary duty of care to meet truth ■ New York Times v. Sullivan (1964): a. NYT published ad of Civil Rights and accused southern police of using illegal things to stop protests, Sullivan (cop) sued b. Supreme Court said that public official needed to show “actual malice” (information they know is wrong or had no care of truth) ■ Actual Malice: nowledge of falsity and reckless disregard for true a. Bad journalism by Saturday Press is example ( court will look at specific journalistic values) but will loo rgency of story, reliability of source and believability of what is said. ○ Public figures have to show more fault (actual malice) because have more access to courts private figures only needs negligence) ■ Bootstrapping: when the media covers them because of case/lawsuit ○ Gertz v. Robert Welch, Inc. (1974): ourt said that some people are ellknown that have to show actual malice ■ Allpurpose public figure is known by A LOT OF PEOPLE and for several reasons (several topics) ■ Limitedpurpose: only throw selves fo ne purpose/topic a. Any public advocate as long as not super celebrity, nly need actual malice if libel dealing with topic they are known for b. How to know… 1. In spotlight voluntar volunteer for activity that naturally had attention) 2. Play a role in the resolution of controversy 3. Tries to influence public opinion ○ Involuntary public figur et put into spotlight without wanting to ○ NO FIX RULE FOR LOSING PUBLICFIGURE STATUS (no set time) ○ Private figure is NOT PUBLIC and only has to show negligence ○ Type of damages: ■ Actual: easurable and estimable for emotion (not precise) ■ Special: actual money amount ■ Presumed: no need to prove harm ■ Punitive: (exemplary), prove point (highest amount) a. Some state look at this using actual malice ○ Emotional Distress: more than being upset, it is a here there is such serious mental anguish beyond normal ■ Intentional Infliction of Emotional Distress ■ Negligent Infliction of Emotional Distress ○ At first courts didn’t recognize emotional distress but changed ■ Beginning only if emotional with physical injury, later needed physical symptom of mental anguish, now no physical injury is OUTRAGEOUS ○ Plaintiff’s case: emotional case ■ Defendant’s intentional or reckless conduct ■ Was extreme and outrageous ■ Causing plaintiff’s severe emotional distress ■ And defendant acted with actual malice (if plaintiff is public person) ■ Defense: No defense available ○ Outrageous conduct: eyond the bounds of decency tolerated in society ■ Average person must be okay so outrageous, high standard ○ Defendant’s action doesn’t need to be deliberate ■ A person must be able to assume action would cause emotional distress ■ Case of California cops sending pictures of decapitated girl to family which went viral so sued, not intentional but reckless ○ Public figure need to prove ACTUAL MALICE ■ Hustler v. Falwel ustler published parody ad of Falwell having sexual activity to mom, sued for libel (not okay because too outrageous to be taken serious), emotional distress and approbation a. District said that okay and gave money, appeals agreed b. Court said no proof of actual malice, also parody v. satire as different but are both protected (parody makes fun of person, satire doesn’t need to) c. EXPAND SULLIVAN TO EMOTIONAL DISTRESS ○ Difficult to win IIED claims: ■ Snyder v. Phelps (2010): hurch members protested in funeral of soldiers a. Appellate courts found that church members’ speech protected even if message is wrong, not targeting family directly ○ Negligent Infliction of Emotional Distress ■ Plaintiff’s case: a. Duty b. Breach c. Proximate cause i. Causeinfact ii. Foreseeability ● Chapter 5: Libel: Defense and Privileges ○ BIGGEST DEFENSE AGAINST LIBEL IS TRUTH ○ Fair report privileg efense of journalists if reporting f fficial documents ■ Acknowledge that information is already out there so not in fault ■ Absolute: words are from business of government 3 branches of government in all levels) ■ Conditional/Qualified: onditions that need to be met a. Case by case b. Can lose conditional privilege if illwilled or breaks conditions, not substantially true, author adds or draws conclusions c. Detroit news published names of convicted felons in school, ok because got them from records ○ Fair comment and criticism: rotects critics because if people put out work they are allowed to be criticize engaged creatively) ■ Lose defense if not about public manner or not supported by facts ● Needs to be honest opinion, common law tradition ■ Author sued New York Times for bad book review and c ourt said that reviews use harsh/strong words because it is part of genre NOT ABSOLUTE) ○ Figuring out opinion v. fact is hard ■ Opinion as defense claim has common law and Constitutional protection (might chill speech) ■ Ollman v. Evans (1984): Ollman was profesor that got job in Maryland and Novak and Evans wrote that he was a marxist and using class to create revolution, Ollman lost Maryland job a. Big issue was the claim that we was using the classroom to make revolution b. Court created Ollman test to see if opinion or not: 1. Look at how language is usually used ( common/ordinary meaning) 2. Can it be verified or proved false? verifiability) 3. Look at entire column/article statement is i journalistic context) 4. Look at BROADER CONTEXT ( social context) ■ Supreme Court said that it was not protected under the 1st amendment because these words did not convey ideas so were useless ■ Created categories calle FIGHTING WORDS: words that “inflict injury or tend to incite immediate breach of the peace” ○ Near v. Minnesota (1931): ■ Near wrote “saturday paper” saying that officials working with gangster → officials got injunction to prevent publishing ■ Used state law that prevent publishing of things that are lude or nuisance ■ Lower court okay with it ■ Supreme Court said that the government can hold papers accountable for false information AFTER PUBLISHING, NOT BEFORE → narrow exception where this can be done (54 decision) ○ Pentagon Papers case: N ew York Times v. U.S. (1971) ■ Nixon administration tries to prevent New York Times and Washington Post from publishing study of U.S. interaction in Vietnam, Nixon said that it was a threat to national security (classified information) ■ Court said that security can’t be enough reason → NEEDS IMMEDIATE THREAT to be okay ○ TheFlyonTheWall.com case: ■ Fly on the Wall were publishing Wall Street information which led to Wall Street firms to ask to delay, district accepted injunction of stopping website from releasing stock tips of firms before they were made public ■ Appellate court struck down the lower court’s decision and allowed the website to publish the tips because the firm recommendation was fact so were allowed to be published as news ○ U.S. v. O’Brien (1968): ■ O’Brien convicted from burning his draft cover in the steps of South Boston Courthouse, broke law that said that prohibited the destruction of draft documents because it would go against the government’s ability to make the process run smooth, O’Brien argued that law was unconstitutional ■ Court said that okay because the law was narrowly focused to ensure that the governmental interest of having the draft run smoothly was not stopped, O’Brien could have found other ways to show discontent for draft ■ LAW WAS CONTENTNEUTRAL ■ Created the O’Brien test: 1. Law is not related to suppression of speech 2. Law advances an important governmental interest 3. Law is narrowly tailored ○ Buckley v. Valeo (1976): ■ Following the Watergate scandal, the government passed regulations on the amount of money an individual could give to a single campaign and said that contributions had to be reported when they passed a certain threshold ■ Court upheld the regulations on the amount of money that individuals could give to a single campaign to enhance the “integrity of our system” but it held that limiting the amount of money a candidate could give to their own campaign was unconstitutional ■ Campaign spending is political speech ○ FEC v. Wisconsin Right to Life (2006): ■ Under the BCRA, ads could not be aired 60 days prior to the election, Wisconsin Right to Life ran ad urging people to talk to two senators to ensure that they would go against filibuster of a certain law, argued that this was not related to the election ■ Court said that Wisconsin Right of Life could continue to air their “asapplied” ads and that the specifics ads had to be viewed when determining if BCRA was okay ○ SpeechNow.org v. FEC (2010): ■ SpeechNow filed report asking court to look at the constitutionality of the FEC’s regulations on individual donations, requirements to release information about donors ■ Court of appeals said that there was no real governmental interest to limit the individual contributions given to independent firm like SpeechNow, but said that okay to have donor names released because it did not limit speech ■ Super PACs increased as places where independent corporations could give money ○ Randall v. Sorrell (2006): ■ Vermont passed law that limited the amount of money individuals could use in their own campaign. ■ Court brought down Vermont law because it did not allow them to campaign efficiently. ○ Nixon v. Shrink Missouri Government PAC (2000): ■ Missouri had limits on how much money people could contribute to a campaign, Shrink Missouri Government PAC argued that the limitations went against the 1st and 14th amendment and that they were not enough to be able to campaign effectively ■ Court found that Buckley was comparable to state regulations but that it did not set the exact amount of limitations that should be applied, did not violate the 1st amendment because narrowly tailored to meet government purpose of controlling corruption ○ McIntyre v. Ohio (1995): ■ McIntyre didn’t put name on pamphlet that she was giving out expressing opposition to the school tax, broke Ohio law that said that campaign literature needs to include name, and address ■ Court said that law that prohibited anonymous speech was only okay if it was narrowlytailored to a specific government interest, law was not so it was not okay ○ Doe v. Reed (2010): ■ Plaintiff wanted to prevent the names of those that signed a state referendum about gay marriage to be released, Court of Appeals found that it was okay to have the names released because it was needed when it was a referendum. ■ Court agreed with lower court reasoning saying that the law had a clear governmental interest to make sure that the referendum signatures are sure, nedded intermediate scrutiny, ■ NO AUTONOMOUS IN BALLOT ○ Pleasant Grove City v. Summum (2009): ■ Summum requested Pleasant Grove City mayor to put a monument in the city park, the mayor said no because it had nothing to do with the history of the Pleasant Grove City, Court of appeals said that the park was a public forum so Summum should be allowed to have their monument ■ Court said that monuments were part of governmental speech which meant that the government was allowed to chose what monuments they put in a public space and which ones they don’t ○ Garcetti v. Ceballos (2006): ■ Ceballos told his superiors that a care needed to be dismissed because of a mistake made in the sheriff’s affidavit, Ceballos was reassigned, transferred and denied a promotion, he sued saying that this was unconstitutional ■ Court said that an official’s speech is only protected if it deals with their private lives not when it is being said as part of their civil duties, okay for Ceballos to be punished for what he said since it dealt with his job ○ “Live Free or Die” (1977) ooley v. Maynard ■ Maynard was fined $50 and served 6 months in jail for covering up the “live free or die” message on the license plate in his car, New Hampshire law that made it illegal to cover up the message ■ Court said that Maynard had the right to not have to show the message on his license plate if he did not find it morally correct, no clear governmental interest to have slogan ○ Boston’s St. Patrick’s Day parade (1995): Hurley v. IrishAmerican Gay, Lesbian and Bisexua Group of Boston, Inc. ■ Organizers of the St. Patrick’s Day Parade in Boston decided that they were not going to let an LGBTQ alliance participate so the alliance sued saying that is violated the 1st amendment ■ Court said that LGBT community could find other ways to show message, it was not okay to force an organization to have to representante a message that they don’t support ○ Holder v. Humanitarian Law Project (2010): ■ Nonprofit organization that offered training to the group PKK on how to negotiate peace or seek help from the United Nations, charged because it went against the ban against providing “material support” aka providing training, expert advice or assistance to terrorists groups ■ Court said that the ban did not violate the 1st amendment because as applied to this case was not too vague or broad since there was a big national security and foreign affairs issues at stake, might be unconstitutional in other cases ○ Schenck v. United States (1919): ■ Schenck mailed 15,000 antidraft pamphlets telling people to reject the prowar philosophy and oppose participation in WWI, charged for breaking the Espionage Act of 1917 ■ Court said that mailing these pamphlets was a “clear and present statement” to national security, words that were normal okay might not be during time of war ○ Debs v. United States (1919): ■ Socialist leader Debs made speech against the draft and war effort saying that “you are more fit for something better than slavery and cannon fodder,” convicted for violating the Espionage Act ■ Court said that the case was similar to Schenck so decided since he was a political figure his remarks were more dangerous, his conviction was upheld ○ Abrams v. United States (1919): ■ Abrams and four friends threw leaflets from a building in New York speaking out against US involvement in the Russian Revolution and urged workers to revolt ■ Court said that the conviction was okay under the “clear and present danger” test, Holmes wrote dissent saying that Abrams’s actions were not enough to have a clear danger showing that his mind changed ○ Gitlow v. New York (1925): ■ Gitlow oversaw the publication of pamphlets that urged class action to bring socialism to the US, convicted for anarchy and trying to overthrow the government ■ Court upheld the conviction saying that they threatened the foundations of the government and suggested for a government overthrow, Holmes again dissented saying that “every idea is an incitement” and that they should be protected by the 1st amendment to ensure the flow of ideas ■ Established incorporation doctrine to apply the 14th amendment to expand the 1st amendment to the states ○ Whitney v. California (1927): ■ Whitney was convicted from being a member of the Communist Labor Party ■ Court said that it was okay because just being a member of a party that was assumed to be violent was enough to be dangerous ○ Brandenburg v. Ohio (1969): ■ KKK leader Brandenburg made a speech that was broadcast by TV saying that they needed to take revenge against several governmental leaders, convicted under state law that made it illegal to make suggestions of overthrowing the government ■ Court said that the comments were offensive but that was not enough for them not to protected, ideas that went against the government are protected as long as they are not related to real violence ■ Created Brandenburg Test: 1. Directed toward INCITING (let’s do something) 2. Immediate ( lets do something NOW) 3. ILLEGAL action 4. Likely to produce that action ○ Cohen v. California (1971): ■ 19yearold Cohen expressed his opposition to the Vietnam War by wearing a jacket that said “f the draft, stop the war,” convicted for disturbing peace ■ Court said that the statement was not directed toward anyone or that it would cause any violence, cursing okay because without it the message would have not been as effective ○ Terminiello v. Chicago (1949): ■ Father Terminiello delivered speech where he criticized various political and racial groups leading to a crowd getting emotional, convicted for disrupting peace ■ Court said that his speech was protected, speech could only be brought down if it led to clear and instant violence, words are suppose to cause emotion and it is okay as long as actions don’t follow emotion ○ R.A.V. v. St. Paul (1992): ■ Group of teenagers made a wooden cross and set it ablaze in the front yard of a black family, convicted under Minnesota law that made it illegal to display of symbols or objects ■ Court reversed the conviction because law was too narrow since it only punished a specific type of speech, went too far for being fighting words because not face to face contact ○ United States v. Stevens (2010): ■ Stevens sold videos of dogfights even though he did not participate in them, he was convicted for distributing videos that show animal cruelty ■ Court said that law was too broad because it was too broad and punished speech that was not historically an exception of the 1st amendment ■ DID NOT WANT TO MAKE NEW CATEGORY ○ Virginia v. Black (2003): ■ Black and two other people were found guilty for burning three crosses (one at KKK rally and two in the yards of African Americans) which was against VA law, VA supreme court said that law was unconstitutional because it chilled speech ■ Court said that states were allowed to convict people who set crosses ablaze to intimidate people, okay to punish fighting words like cross burning that are related to history of violence which made them a true threat ■ Different from teen case because different law, also a history of violence in South ○ Elonis v. United States (2015): ■ Elonis made explicit facebook posts about his exwife which scared her so she file for a protective order and feared for her kids’ lives, Elonis argued that it was not clear whether threats have to be subjective or objective to be true threats ■ Court said that a conviction for a threat online like a conviction for a threat in criminal law needed to show that the person had the mindset of truly wanting to go through with the threats ■ Needs to look at the subjective mind of the person saying the threats (did he really mean them?) ○ Texas v. Johnson (1989): ■ Johnson burned American flag while protesting at the Republican National Convention, he was sentenced to one year in prison and fined $2,000 because broke Texas law against flag burning ■ Court said that burning the flag was symbolic speech so it required strict scrutiny, they found that there was no clear governmental interest for the law banning flag burning (only to stop offensive action) ■ GOVERNMENT CAN’T STOP ACTION JUST BECAUSE SOCIETY WILL FIND IT OFFENSIVE ○ Tinker v. Des Moines Independent Community School District (1969): ■ Students wore black armbands to protest Vietnam War and refused to take them off when administrators asked them to, they were suspended for this, argued that the school had gone against their 1st amendment rights ■ Court said that wearing armband was “pure speech” so protected by 1st amendment, schools can’t limit speech just because it might be discomforting to them ■ Created the Tinker Test which stated that only when the activity disrupts daily school activities can the school prohibit it ○ Morse v. Frederick (2007): ■ Frederick played banner that read “Bong Hits 4 Jesus” in field trip to get himself on TV, the principal asked him to bring it down and, when he refused, she tore it down and suspended him for 10 days ■ Court said that it was okay for the school to stop message that promoted illegal drug use, okay to limit speech that directly went against an existing school policy ○ Island Trees Union Free School District (1982): ■ School board removed books from the library because they were “antiAmerican, antiChristian, Anti[Semitic] and just plain filthy,” student Pico sued the Board’s decision ■ Court said that the removal of the books was unconstitutional, schools are allowed to control books based on age group and quality of education, but not because of hypersensitive individuals, distinguished between required readings and the optional readings in the library where controversial books should be available because they expose students to things they should know for their future ○ Bethel School District v. Fraser (1986): ■ Fraser made speech in a schoolsponsored assembly nominating a classmate for student government, he made a couple of sexual metaphors, principal said that speech violated the school policy against profanity and suspended him for three days ■ Court said that in a schoolsponsored event the school is allowed to regulate what is being said especially when there are younger kids in the audience, in schoolsponsored events the messages that are portrayed are thought to be the school’s thoughts so it can control them ○ Hazelwood v. Kuhlmeier (1988): ■ Principal censored 2 pages in schoolsponsored newspaper that spoke of teen pregnancy and divorce because it invaded the privacy of those interviewed and it was inappropriate for younger students ■ Court said that school is allowed to control what is said in a schoolsponsored newspaper because school is endorsing what is being said in paper so have to promote positive educational environment ■ DOES NOT APPLY TO UNIVERSITY PRESS ○ Reno v. ACLU (1997): ■ The Communications Decency Act prohibited the showing of obscene and sexual content in places where kids could see it, three people challenged this provision ■ Court said that CDA was unconstitutional because it prohibited too many things because of content, was too specific in time, people it was protecting and did not say what was “obscene” ○ Gertz v. Robert Welch, Inc. (1974): ■ Gertz was lawyer that was hired by family to sue police officer that had killed their son, magazine called him a communist for suing a cop, Gertz sued for libel ■ Court said that it was not okay for the lower court to have said that he needed to show actual malice because he was not a public figure ■ Said that some people can be seen as allpurpose figures because they were in the public eye for various reasons ○ New York Times v. Sullivan (1964): ■ Police officer Sullivan sued for libel because of an ad that published in the New York Times that said that MLK’s arrest had been set up by the police to stop his actions in the Civil Rights Movement, Sullivan was not named in the?
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