Unit 2, Midterm Study Guide
Unit 2, Midterm Study Guide JMC 4813
Popular in Mass Communication Law
Popular in Journalism and Mass Communications
This 10 page Study Guide was uploaded by Emily Coatney on Tuesday October 13, 2015. The Study Guide belongs to JMC 4813 at University of Oklahoma taught by Dr. Robert Kerr in Summer 2015. Since its upload, it has received 171 views. For similar materials see Mass Communication Law in Journalism and Mass Communications at University of Oklahoma.
Reviews for Unit 2, Midterm Study Guide
Report this Material
What is Karma?
Karma is the currency of StudySoup.
You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!
Date Created: 10/13/15
UNIT 2 Letter of the Law Study Guide Freedom of Speech First Amendment Origins Americans had been facing severe English censorship or control of expression During the years from 153 81694 all printing had required government licensing Star Chamber a court of law set in place to maintain enforcement of social political law imposed very harsh penalties regarding expression The 1712 Stamp Act was a law which established speci c taxing on newspapers pamphlets advertising etc Most expression that carried any criticism of the government or its institutions was severely punished and often treated as sedition Free speech in practice The verbiage of the First Amendment caused people to take it to mean that the government can make no law abridging freedom of speech Some Supreme Court justices and legal scholars have held a literal interpretation of the First Amendment however the majority of justices have not The phrase no law has not been interpreted literally by court systems today The Supreme Court and Congress determined that when the First Amendment reads no law it means some laws in practice Some expression is protected while some may be punished and how this continues to be determined plays a huge role in structuring society and deciding how con icts between interests are resolved The ve main theories on whyfree speech should be protected 1 Political self governance This gives people the ability to participate fully in self governance and have full access to explore and express all ideas 2 Check on political power The newsmedia are mediums of expression which bring voices to counter balance the overarching government power 3 Political change with stability This ensures a political safety valve meaning that people from different political belief systems can peacefully express their disagreements grievances 4 Individual fulfillment The amendment better ensures the freedom for people to make their own choices regarding expression and ideas 5 Marketplace of ideas philosophical Free speech is important because truth can better emerge when all ideas are voiced freely This theory has been cited most numerously by the Supreme Court regarding the reasoning for its First Amendment rulings Thefive social interests behind why some speech is not protected Social interests that have been found in some situations to con ict with free speech 1 National security government can censor expression shown to endanger national interests 2 Individual reputation victims of libel may sue for compensation 3 Orderly streets restrictions may be placed on expression that interferes with traf c safety etc 4 Honest commercial markets government may regulate advertising 5 Intellectual property use of copyright and trademarked expression can be limited Article Study Challenges Supreme Court s Image as Defender of Free Speech Two major First Amendment cases were outlined Federal Communications Commission V Fox Television Stations No 101293 Asks whether the First Amendment allows the government to regulate vulgarity in broadcast programming United States v Alvarez No 11210 Asks whether the government can make it a crime to lie about receiving military decorations Citizens United vs Federal Election Commission FEC 2010 This case dealt with the regulation of campaign spending by organizations The court decided that corporations and unions have a First Amendment right to use monetary and other spending freely in order to support candidates in elections Judge Abrams voted in favor of that decision Article focus The chief justice has the power to assign the majority opinion when he is in the majority This article focused on Supreme Court Chief Justice John G Roberts Jr and his concern for free speech within the courtroom The article discusses how even though Roberts has been called a quotproFirst Amendmentquot decisionmaker that statistics reveal he has been in favor of free speech less than any of the three previous chief justices in the Supreme Court One side of this argument argued against Roberts as a proponent of free speech saying that the media has chosen to focus on specific cases where Roberts applied free speech in a ruling but that numerous other cases are not brought to media attention which show he had chosen to disregard the First Amendment Dean of the law school at the University of California Professor Chemerinsky brought up an important consideration regarding the specific types of cases where free speech was not applied in the decision referencing continuous cases which involved attacks against the government or governmentfunded institutions The dean felt it was important to see a pattern in Roberts choice of whether to consider free speech or not because if he refused to risk putting a governmentrun institution in harms way for misuse or denial of the First Amendment he should not be considered a proFirst Amendment chief justice However the opposing view which held that Roberts did indeed choose to respect the First Amendment in the majority of his cases stated that statistics could not be the measurement tool we use in deciding whether or not Roberts was profree speech or not Hierarchy of Free Speech Protection Key to understanding freespeech law in US what gets punished and what gets protected is often dependent on how it is ranked in this hierarchy 1 Political social expression Receives the highest level of First Amendment protection 2 Advertising and non obscene sexual expression Receives an intermediate level of protection 3 False advertising fraud obscenity and ghting words Receives protection Unprotected Expression The very lowest ranking in the hierarchy False advertising and fraud have no First Amendment protection and are likely punished by the government Obscenity the most graphic form of pornography may be banned in all media distributed in the US Fighting words are such that directly provoke a breach of peace Fighting words cannot merely offend someones Supreme Court often dismisses these regulations for their overbreadth or vagueness the law must be very specific so that such expressions have a clear violation to consider Supreme Court has declared crossburning may be punished if intended to intimidate as long as the law clearly requires prosecutors prove that the act was intended as a threat and not as a form of symbolic expression Intermediate Protection Some categories of speech are less protected because courts and society often consider these to be relatively less important than political expression Advertising is considered hardier and more veri able thus it can withstand more regulation unlike political expression which is considered more vulnerable and less veri able Nonobscene sexual expression such as nude dancing receives some protection but can be restricted through zoning and examined for obscenity unlike political expression Highest level of Protection The very top ranking in the hierarchy Political and social expression is widely considered to be the most important purpose of the First Amendment These are the most valued and most protected type of expression because they were what caused the First Amendment to be written Political social expression can take many forms Newspapers magazines poetry posters speeches lectures lms broadcasts symbolic expression marches political campaign contributions etc Courts have ruled that any statutes or university codes prohibiting hate speech are unconstitutional unless it expresses a threat of violence or provokes an immediate act of violence How far does protection extend Brandenburg v Ohio 1969 Established the current very broad protection for political speech the incitement standard The Supreme Court ruled that even speech that advocates illegalities cannot be punished unless it is both 1 Directed at inciting imminent lawless action 2 Likely to produce such action The Brandenburg standard essentially replaced the clear and present danger standard established from the Schenck V US and Dennis V US cases The previous standard was established during a controversial period in US history The First Amendment often clashed with government interests of ensuring order and morale during wartime The Brandenburg case was key to seeing the shift of law which helped keep the government in check when it was trying to control expression Protecting Content When a category of speech is protected courts make it very difficult for the government to regulate the content of such expression Courts apply strict scrutiny when laws attempt to regulate the content of what falls in the category of protected expression All regulations must be justi ed by 1 compelling government interest 2 be narrowly tailored to impose a minimum restriction on expression When strict scrutiny is applied courts will determine regulation unconstitutional for 1 Lack of compelling government interest 2 Vagueness when a law is not written clearly enough for persons of common intelligence to agree on what it means 3 Overbreadth when a law restricts substantially more expression than necessary to achieve goal One of the most famous rulings protecting content involved a Texas statute banning ag burning Texas v johnson 1989 US Supreme Court ruled the statue was based on the content of the speech being offensive Court determined that the government cannot monitor the approval or disapproval for expression of any speci c viewpoint or idea simply on the basis that society nds the idea offensive Court stated a speci c precedent for ag burning would be very broad and vague with no dissemble or defensible boundaries you cannot simply punish all people who decide to burn a ag which belongs to themowned property Contentneutral regulations Regulations neutral on the content of the expression meaning the content is not being regulated but an illegality related to how the content was expressed are more likely to be constitutional Categories being regulated often titled time place manner regulations In such cases courts ask If the regulation furthers a substantial not compelling government interest If that interest is unrelated to suppression of free expression If the restriction on expression is no greater than is essential to advance that interest US v O Brien 1968 case The US Supreme Court upheld its law punishing the destruction or mutilation of draft cards Court ruled that the law was not aimed at suppressing an expression but at a substantial government interest which was to raise armies quickly and ef ciently The law could not be regulated at hindering free speech because the government had stated that men who received their draft were required to keep them protected and available at any point in time Those who destroyedmutilated draft cards were considered to have committed a crime of obstructing military recruitment and enlistment their expression broke government precedents so the expression couldn t be protected Who is protected less Often students have been given very broad First Amendment protection depending on the circumstances and not necessarily applied strictly by law Tinker V Des Moines 1969 First studentinvolved First Amendment case where the Supreme Court ruled the expression by high school students is protected when there is no speci c evidence of a constitutionally valid reason to regulate the expression such as being disruptive obscene or violating right of other students However since Tinker v Des Moines the trend has been to reduce First Amendment protection for students Hazelwood v Kuhlmeier 1988 Supreme Court said the censorship of schoolsponsored publications at a high school are constitutional as long as the reasoning related to pedagogical educational concerns Hosty v Carter 2006 Supreme Court allowed a lower court ruling that stated the Hazelwood standard can be applied to college students Morse v Frederick 2007 In this case a student was punished for carrying a banner that read BONG HiTS 4 JESUS at a city parade that his school had let students out of class to attend for the 2002 Olympic Torch Relay Supreme Court ruled that high school students can be punished for content of expression if it appears to promote illegal drug use at a schoolsupervised event Where speech isisn t protected Public forums Expression generally cannot be restricted in traditional public forums streets parks or dedicated public forums meeting rooms Nonpublic forums Expression may be restricted in nonpublic forums those owned by another party military bases airports shopping malls How expression is punished The government is almost totally barred from deciding in advance what speech should be punished this a key element in considering context content to decide what freedom means in the speci c instance Prior Restraint is an of cial restriction of speech before it is disseminated US law began with the presumption that prior restraint by government is unconstitutional However rare circumstances have shown prior restraints as constitutional A postpublication measure is taken after expression is disseminated and is much more likely to be legal in US vaes of Prior Restraints Injunction is a court order that stops or prevents a particular action such as expression Often used in US to halt unprotected speech obscenity false advertising and fraud Licensing can be a prior restraint requiring the permission for expression Can be considered unconstitutional if of cials abuse discretion of expression Discriminatory taxation is the taxing of the mediums of targeting expression the press It is only constitutional when taxation occurs as a general precept and does not occur in order to control the content being published Used by legislatures in order to in uence the press but is not a direct restraint unless taxes become so discriminatory that they result in regulationrestraint of the press Prepublication agreements are contracts between government and employees that if signed must be upheld because they were agreed upon for any circumstance Postpublication punishment This kind of punishment regarding expression is much more common and can be considered constitutional under US law Publication is a form of free speech and actions that are punishable under the First Amendment are also punishable to material that has been published Examples include laws that punish libel invasion of privacy copyright infringement obscenity false advertising etc
Are you sure you want to buy this material for
You're already Subscribed!
Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'