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by: Angela Cameron

StudyguideforCOM250.pdf COM 250

Angela Cameron
GPA 3.86
Freedom of Expression
Sallie Hughes

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Freedom of Expression
Sallie Hughes
Study Guide
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This 12 page Study Guide was uploaded by Angela Cameron on Monday October 12, 2015. The Study Guide belongs to COM 250 at University of Miami taught by Sallie Hughes in Spring 2014. Since its upload, it has received 31 views. For similar materials see Freedom of Expression in Communication Studies at University of Miami.

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Date Created: 10/12/15
Cameron 1 Study guide for inclass exam on March 20 Format 0 10 identi cation questions about 24 sentences 0 1 short essay about 10 sentences Identi cation Terms People and Concepts 0 The de nition of Freedom of Expression as used in law from the textbook 0 The freedom to communicate by diverse means including but not limited to the use of the spoken or printed word 0 Scholars refer to it as the freedom to communicate a message 0 Expression Communication by any manner 0 Freedom Freedom from abridgement of expression by the government 0 The Marketplace of Ideas 0 Rationale for freedom of expression 0 Based on an analogy to the economic concept of a free market 0 Holds that the truth will emerge from the competition of ideas in free transparent public discourse o Aeropagitica 0 Written byJohn Milton 0 Written in opposition to the Licensing Order of 1643 o Said quotLet her truth and Falsehood grapple who ever knew Truth put to the wors in a free and open encounter 0 Supports the Marketplace of Ideas 0 The First Amendment to the US Constitution and the ve freedoms contained within it 0 Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or the press or the right of the people peacefully to assemble and petition the Government for a redress of grievances 0 Five Freedoms Speech Religion Press Assembly Petition 0 Article 19 of the Universal Declaration on Human Rights 0 Everyone has the right to freedom of opinion and expression 0 This right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiers o Writ of certiorari o Petitioned by the party that loses an appeal Cameron 2 o Directs the lower court to send a record of a case to the Supreme Court o If Supreme Court quotgrants Certiorariquot the justices read the record briefs do their own research on the issues involved conduct an oral argument between parties engage in deliberations and write more or one opinions on their decision 0 Majority concurring and dissenting Supreme Court decisions 0 Majority Expresses the holding and reasoning of the court Requires agreement of more than half the justices o 5 votes 0 Concurring One or more justices agrees with the majority s holding Based their decision on different reasoning o Dissenting justice disagrees with the decision 0 Precedents 0 Previous decisions that relate to the current case 0 Tyranny of the majority o The opinion andor expression of the minority is suppressed by the majority political party 0 Chilling effect 0 Speaker is permitted to communicate but is then punished later 0 Causes people to selfsensor their expression 0 Religious expression in the early American colonies 0 Early Settlers CoHchve Allowed communities to practice their religion without being controlled by a central government or national church The right of an individual to disagree with the community was not as well supported john Roche o quotColonial America was an open society dotted with closed enclaves and one could generally settle with his cobelievers in safety and comfort and exercise the right of oppressionquot o Enlightenment thinking and Cato s Letters 0 EnlightenmentThinking Placed an emphasis on the use of reasoning to nd humanity s questions Didn39t rely on the church tradition or superstition o Cato39s Letters Written by john Trenchard and Thomas Gordon For British Newspaper Oftcited source of ideas in the colonies Cameron 3 Contended that because the government is a servant of the people it is the people39s business to determine whether the government is serving their interest Argued that oppressive governments often oppose free speech The Bill of Rights 0 The rst 10 Amendments of the Constitution The Sedition Act of 1798 o Prohibited false scandalous or malicious statements against the US government including Congress and the President with the intent to bring them into contempt or disrepute 0 Provided Federalists with an opportunity to destroy the RepubHcans Social Movement 0 Individuals as a loose collective or an organization SMO who have a grievance and use their First Amendment rights to attempt to change values cultures and when necessary and possible laws Counter Culture or subculture o A group that shares norms and values that are different in some key way from wider society or a more powerful cultural group that controls greater resources such as access to mass media money religious leadership or political power CounterPublicity o Expressive acts that challenge the underlying values and norms of the dominant group 0 May or may not be unruly The Espionage Act of 1917 o Punished antigovernment speech that could impair the war effort 0 Aggressively enforced during WWI o More than 2000 prosecuted The quotbad tendencyquot rule or test 0 The Clear and Present Danger Test 0 Required only the facts show speech exhibited a quottendencyquot to promote illegal conduct The Brandenburg rule or test 0 Gives greater protection to the communicator o 3 Criteria for restricting speech must be met Directed to inciting unlawful action Must be calling for imminent lawbreaking rather than illegal conduct at some future time Must be likely to produce such conduct True Threats de ne them 0 lncites lawbreaking against a target 0 Categorical exception to restricting speech 0 Factors for De ning Speaker39s intent Cameron 4 Objective evidence that the speaker might undertake the speci ed action Likelihood that the threatened action would occur Pathological Periods o Toleration of dissent is at a minimum o It is believed that our country is threaten by ruthless enemies resulting in overreaction in the form of diminished constitutional rights The McCarthy Era 0 Fear of Communism swept the nation 0 Lead to a search for quotdisloyalquot people who were stigmatized for their beliefs and associations Classi ed information and Executive Order 13292 0 The Executive branch can classify information as quottopsecretquot quotsecretquot or quotcon dentialquot 0 Information is not available to the media or public 0 Only available to government officials on a quotneed to know basisquot 0 Protects national security Operational Secrecy 0 National Defense information can be kept secret o The Government has the power to sanction its employees for transmitting classi ed information to the press Daniel Ellsberg 0 Gave The Pentagon Papers to the New York Times the Washington Post and other newspapers 0 DEFENSE DEPARTMENT ANALYST The Pentagon Papers 0 Government study of US involvement in the Vietnam War 0 Showed we were losing the war 0 GOVERNMENT HAD NOT BEEN TRUTHFUL ABOUT THE WAR39S NEED CONDUCT OR SUCCESS 0 7000 pages of information Prior Restraint o The court suppressing the publication of material on the grounds that it could be harmful or libelous o Unconstitutional The Church Commission 0 US Senate Committee 0 Researched Government surveillance practices 0 19361975 0 Published its ndings in fourteen volumes of reports and supporting documentation 0 Found that every president from FDR to Nixon had engaged in improper political surveillance 0 Concluded that surveillance had been misused COINTELPRO and MINARET o COINTELPRO FBI surveillance program Cameron 5 Created to deter citizens from joining groups neutralize those who were already members and prevent or inhibit the expression of ideas 0 MINARET NSA Intercepted international communications of American citizens and groups that participated in antiwar and civil rights activism Created quotwatch listsquot to share with other government agencies Local level Red Squads The Foreign Intelligence Surveillance Act FISA 0 Passed in 1978 o Regulates electronic surveillance of foreign powers and their agents State Secrets Doctrine 0 Blocks the release of classi ed information Standing in ACLU v NSA 0 ACLU had no evidence that they had personally been subjected to warrantless surveillance 0 They could not produce such evidence because the government invoked the states secret doctrine PRISM 0 Mass electronic surveillance data mining program 0 Launched in 2007 by NSA o Collects stored Internet communications based on demands made to Internet companies such as Google to turn over any data that match courtapproved search terms Wikileaks 0 Organization which publishes secret information news leaks and classi ed media from anonymous sources 0 Founded by Julian Assange Categorical Exception to the First Amendment 0 True Threat o Defamation o Libel 0 Fighting Words Time Place and Manner Restrictions 0 Limits the government can impose o On the occasion location and type of individual expression 0 Upheld if Justi ed without reference to the content of the regulated speech Narrowly tailored to serve a signi cant government interest Leave open ample alternative channels for communication of the information Privacy as a Penumbral Right 0 Constitution asserts and protects a right to privacy Cameron 6 o Symbolic Expression 0 Nonverbal gestures and actions that are meant to communicate a message 0 Defamation 0 Communication of a false statement of fact that damages someone39s reputation 0 John Peter Zenger as related to defense of defamation o Jailed on charges of libel o ln amed the minds of the people with contempt for the king s government 0 Lawyer said that he had the right to make comments and the only way he could be convicted is if they were proven to be false 0 Truth was used as his defense 0 Public Figure 0 Anyone who has gained prominence in the community as a result of their name or exploits o 2 types Allpropose o Achieved general fame in the community or are heavily involved in social affairs 0 President Limited Purpose 0 Respect to comments pertaining to their involvement with the public controversy in question 0 The Actual Malice Test 0 2 ways it can be proven Communicator makes a statement that they know to be false Make the statement with reckless regard for the truth 0 Fair Use Test for Copyright 0 See if copyright laws have been violated 0 Four Criteria Purpose and character of the use Nature of the copyrighted work Amount of material used in relation to the work as a whole Effect of the use on the potential market or value of the work 0 Public Domain 0 When the copyright expires an intellectual property becomes free for anyone to use Ideaexpression dichotomy 0 Ideas cannot be copyrighted but the expressions of those ideas are CASES Cameron 7 Schenck v the United States Charles Schenck oversaw printed and mailed more than 15000 lea ets to men slated for conscription during World War I Urged men not to submit to the draft on the grounds that military conscription constituted involuntary servitude which is prohibited by the Thirteenth Amendment quotDo not submit to intimidationquot quotAssert your rightsquot Convicted on violating the Espionage Act of 1917 Court ruled that Schenck39s criminal conviction was constitutional based on bad tendency rule Griswald v Connecticut A Connecticut law that prohibited the use of contraceptives Estelle Griswold Dr C Lee Buxton opened a birth control clinic to test the contraception law Shortly after the clinic was opened Griswold and Buxton were arrested tried found guilty and ned 100 each Argued it violated 14th Amendment right Court ruled the law violated right to material privacy later expanded Use of contraceptives and establishment of a marital right to privacy later extended to nonmarried couples Basis for extending penumbral right to privacy to other parts of the constitution Lawrence v Texas Man was having sex in his home Police broke down door Caught with another man in bed Arrest for violating sodomy law Court held that intimate consensual sexual conduct was protected by the Fourteenth Amendment Resulted in DeCriminalized Sex Between Men in Private Spaces Brandenburg v Ohio KKK leader in rural Ohio contacted a reporter at a Cincinnati television station and invited him to come and cover a KKK rally Portions of the rally were lmed showing several men in robes and hoods some carrying rearms rst burning a cross and then making speeches Announced plans for a march on Washington to take place on the Fourth ofJuly Charged with advocating violence under Ohio39s criminal syndicalism statute for his participation in the rally and for the speech he made The Court held that government cannot punish in ammatory speech unless that speech is directed to inciting and is likely to incite imminent lawless action Resulted in the Brandenburg Test Ex Parte Milligan Cameron 8 Milligan and four others were accused of planning to steal Union weapons and invade Union prisonerofwar camps Once the rst prisoner of war camp was liberated they planned to use the liberated soldiers to help ght against the Government of Indiana and free other camps of Confederate soldiers They also planned to take over the state governments of Indiana Ohio and Michigan Plan leaked Charged found guilty and sentenced to be hanged by a military court in 1864 Court ruled that military tribunals could not try civilians in areas where civil courts were open even when the military had been authorized to detain individuals without trial Observed that during the suspension of the writ of habeas corpus citizens may be only held without charges not tried and certainly not executed by military tribunals Hamdi v Rumsfeld Hamdi at the age of 20 went to Afghanistan He was doing relief work for less than two months before being captured by the Afghan Northern Alliance They turned him over to US military authorities during the US invasion He was classi ed as an enemy combatant by the US armed forces and detained in connection with ongoing hostilities Father led a habeas corpus petition in the United States District Cou The Bush administration claimed that because Hamdi was caught in arms against the US he could be properly detained as an enemy combatant without any oversight of presidential decision making and without access to an attorney or the court system Court recognized the power of the government to detain enemy combatants including US citizens but ruled that detainees who are US citizens must have the rights of due process and the ability to challenge their enemy combatant status before an impartial authority Hamdan v Rumsfeld Hamdan was charged with conspiracy to commit terrorism Bush administration made arrangements to try him before a military commission Legal team led a petition for a writ of habeas corpus Challenged the constitutionality of the military commission and saying that it lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice Established that detainees had the right of habeas corpus to challenge their detention Held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack quotthe Cameron 9 power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949 New York Times v the United States Daniel Ellsberg give them Pentagon Papers Try to publish them Government tries to use prior censorship Court rule censorship was unconstitutional The ruling made it possible for the New York Times and Washington Post newspapers to publish the thenclassi ed Pentagon Papers without risk of government censorship or punishment Clark v Community for Creative NonViolence Trying to protest homelessness by setting up a homeless camp on the National Mall on the coldest day of the year and sleeping there overnight The Park Service however denied the request that participants be able to sleep in the tents Permits didn39t say they could sleep Got permits that said they could be there but they couldn39t sleep The Court stressed that expression is subject to reasonable time place and manner restrictions also that the means of the protest went against the government39s interest in maintaining the condition of the national parks The Court felt that the protest was not being threatened altogether and that it could take place in a park where sleeping was permitted In essence because the demonstrators could nd alternative ways of voicing their message their First Amendment right was safe New York Times v Sullivan New York Times carried a fullpage advertisement titled quotHeed Their Rising Voicesquot Solicited funds to defend Martin Luther King Jr against an Alabama perjury indictment The advertisement described actions against civil rights protesters some of them inaccurately from the police in Alabama The Court ruled for The Times Established the actual malice standard which has to be met before press reports about public of cials can be considered to be defamation and libel Cohen v California Man wore jacket that said quotFuck the Draftquot into California Courthouse Cameron 10 Arrested for violating California Penal Code which prohibited quotmaliciously and willfully disturb the peace or quiet of any neighborhood or person offensive conductquot Conviction overturned because the law had to do with conduct notspeech Virginia v Black Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning Statute is unconstitutional But cross burning done with intent to intimidate can be limited because such expression has a long and pernicious history as a signal of impending violence Harper amp Row v Nation Enterprises President Gerald Ford had written a memoir A Time to Heal including an account of his decision to pardon Richard Nixon Licensed publication rights to TIME THE NATION used the section about pardoning Nixon Use Copyright Test Found to have committed copyright infringement Sony Corporation v Universal City Studios Sony developed the Betamax video tape recording format Sue Sony and its distributors alleging that because Sony was manufacturing a device that could be used for copyright infringement they were thus liable for any infringement committed by its purchasers Sony said that noncommercial home use recording was considered fair use Ruled that the making of individual copies of complete television shows for purposes of time shifting does not constitute copyright infringement but is fair use FCC v Paci ca Foundation 1973 a father complained to the FCC that his son had heard the George Carlin routine quotFilthy Wordsquot broadcast one afternoon Paci ca received censure from the FCC in the form of a letter of reprimand for allegedly violating FCC regulations which prohibited broadcasting indecent material The US Supreme Court upheld the FCC Ruled that the routine was quotindecent but not obscenequot The Court accepted as compelling the government39s interests in Shielding children from potentially offensive material and Ensuring that unwanted speech does not enter one39s home Stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience and gave the FCC broad leeway to determine what constituted indecency in different contexts Aereo v CBS Cameron 11 Aereo is taking free over the air broadcasting and transmitting it to households and charging people a monthly fee CBS is suing for copyright infringement Short Essays 0 Compare and contrast the behavior of Daniel Ellsberg and Edward Snowdon If you use outside sources be sure to cite them 0 Both Daniel Ellsburg and Edward Snowdon leaked tons of classi ed documents to the press Ellsburg leaked the Pentagon Papers to the New York Times Washington Posts and other newspapers Edward Snowdon leaked tons of classi ed information on government spy programs to Wikileaks founder Julian Assange Both men were charged with violating the Espionage Act of 1917 Ellsberg39s case was dismissed after gross misconduct by the prosecution was discovered Snowdon has yet to go to trial After he leaked the documents he ed and is currently living in Russia He now has political asylum that will be renewed inde nitely each year Ellsburg is still a champion for political activism He gives lecture tours and speaks out about current events Snowdon is hiding in Russia He has remained off the radar since his interview about his decision to leak the classi ed documents 0 What two goals does copyright law in the United States try to balance How 0 Promote creation 0 Protect the artist 0 What are the arguments presidents use to justify expanded powers during wartime What do the courts say Cite at least two arguments and two cases 0 National Security 0 Thinking of the development of freedom of expression in the United States what elements of government and society had to be in place before freedom of expression was strong enough to survive attacks from politicians or intolerant majorities 0 We needed a strong central government In order to enact something like the Constitution or the Bill of Rights the core of the nation needed to be laid o What are the arguments for and against freedom of expression List at least four on each side Which convinces you and why 0 For Help ensure that competent and honest people administer the state They promote good governance by enabling citizens to raise their concerns with the authorities They ensure that new policies and legislation are carefully considered Cameron 12 They promote the implementation of other constitutional and human rights 0 Against Unlimited expression can harm the rights of others because it can con ict with other rights Free expression con icts with other values Free expression interferes with the orderly development of society divine right of rulers Cultural preservation of the nation Up to Three Points Extra Credit Possible for attending one of Alma Guillermoprieto s events and answering these questions in short essay form What are the challenges to freedom of Expression in Mexico Where can the solutions come from Is there a role for the United States to play 300 words maximum Turn in on your blog by April 1


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