Studyguide for Chapter 5,6,7
Studyguide for Chapter 5,6,7 COM 250
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Date Created: 11/08/15
Chapter Five: Fighting Words • 1942 Chaplinsky v New Hampshire o specific kind of categorization o fighting words: when we were little we were sometimes admonished by our parents: the words they used promoted a violent reaction o fighting words: potential of provoking a fight • Back in History o British often justified restrictions on speech using the idea that their could be a risk of disrupting the peace with certain speech o American law also often punished speech that disrupted the peace and cuased disorderly conduct § IE: in Tennessee, ruled that obscene and vulgar words were punishable because they could cause violence and corruption of social morals o These words in general were punished words but for decades there wasn’t one theory as to why they were punished words, it was all different theories based on different cases o Finally theories more concrete ones arose from the Chaplisnky v New Hampshire Case • Categorical Expression and Fighting Word Document o In 1941, two questions arose § Could words that promote violence be punished under the amendment § And if so, what criteria should be used to determine if the words have that tendency to promote violence? § They wanted to prevent violence but without hurting the freedom of expression and communication in general o Chaplinsky V New Hampshire § When: 1942 § Who: Chaplinsky: Jehovah’s Witness § What: He was preaching and distributing literal on a street and the police removed him after complaints by other people, they wanted to avoid disturbing the peace, they removed him before much peace was disturbed. Chaplinsky argued and released a verbal fulmination § Result: In Chaplinsky the judge Murphy said that there can be exceptions to the fourteenth amendment under which speech should and isn’t protected • IE: words by which their very utterance inflicts injury or damage peace immediately § Result: its not what the person addressed considered to be offensive is whats offensive, but rather the average man of common intelligence thinks would cause the average man to fight, is what should be considered offensive, not the lateral § Justice Murphy’s Conclusion: fighting words are not protected by the first amendment • Fighting words in general have no value no meaning and no place in the market place of ideas, because they aren’t ideas • Also to limit expression on behavior that threated peace including fight words: these fight words cause an IMMEDIATE breach of peace • Fighting Words Definition Refined o Terminello v Chicago § Who: Father Terminello § When: 1949 § What: in an auditorium he lashed out at Jews, African americans, and outside the hall angry people began protesting and throwing rocks and windows broken etc • Terminello was charged for disrupting the peace, the Chicago court said that he was convicted under speech that caused public to be angry. § Result: Was appealed to court which then ruled this conviction unconstitutional • They said words cant be punished just because their content creates personal emotional distress o The words must induce reaction greater than annoyance or unrest • The question left to answer was o Should fight words be punished on content (meaning) or context( situation) • Definition Narrowed o Two decades pass since court revisits the whole issue with fight words o Cohen V California § When: during world in Vietnam § What: Cohen was in courthouse corridor wearing a jacket that said fuck the draft, however no one not even the defendant was involved or caused violence • He was convicted by California § Result: they used contextual analysis and ruled for protecting speech • Harlan judge: said the emotive force is the most essential element in fight words • The court said they cant punish him on content of message as long as no intent of disobedience or disruption to the draft is shown § Fighting words doctrine: word in question produces different reaction depending on audience • States can ban fighting words that ordinary citizens would consider the words to provoke violence § Emotive content: for the first time here in Cohen v California fighting words were seen to have value • This challenges chaplinsky which said that words such as fascist and racketer had no value o Cohen and Free Speech: cohen case also gave credit to the idea that § Free speech protects responsible criticism as well as freedom to speak foolishly without moderation • Its good to have verbal chaos it shows a sign of strength • In the results of this case it is determined that there is no such thing as a “bad” idea • With the cohen case, there was a lot of free speech and defense for speech unlike the other cases which limited it • Gooden v Wilson o Rejects idea of average person test for fighting words o Who: Jonny o What: was arrested for picketing along with other protestors at an army induction center § Was asked to leave but he refused and assaulted and batteried two cops screaming I will kill you! § Convicted under Georgia o Result: case was appealed and sent to court which then said that Georgia was violating the first amendment because § It was so overbroad it was a statute that included speech already protected by first amendment § Brennan refined Chaplinsky: starting from this case the court would no longer look at what the common average man would think to be fighting words but what the man addressed in a specific situation would consider fighting word. • Rather evaluate fighting words situation • Mother Fuckers Cases o They are called like this because they were all cases where people were convicted for using this word o Rosenfeld v New Jersey § Who: attended and addressed a public school board meeting and used words mother-‐fucker § What: was tried and convicted under a new jersey law alleging that any person who utters a loud and profane or indecent language in any public street or other public place is a disorderly person § Result : o Brown: § Appellant spoke to a large group of men and women gathered at University of Tulsa Chapel § He refered to some police as motherfucking fascist cops § Was convicted under Oklahoma statute prohibiting obscene language o Lewis: police had been in the process of arresting the appellant’s son on other grounds and lewis tried to intervine calling police officers motherfuckers o The court simply vacated in all three cases the conviction and retured the case to the lower court o This had effects on the coming situations § Especially in Lewis: words may or may not be considered fighting words depending on the situation, § Contextual framework of fighting words was the decision o The court continued to believe that fighting words should be a categorical exception to the first amendment • The RAV decision o When: 1991 o Who: The city of st paul had enacted the Bias motivated crime ordinance § This outlawed the use of symbols causing anger, alarm, or resentment based on factors such as race, religion, or gender § Rav burned a cross inside the yard of an African American family § But Rav argued that he wasn’t doing anything illegal § One thing raised by this case is the idea of whether a symbol of racist oppression should be protected by the constitution o As a result § The Rav case had an effect on the Categorical Exceptions and Fighting words Doctrine • It showed in the RAV majority decision that certain categories of expression are not protected by the first amendment • Scalia said o A limited categorical approach has remained an important part of our first amendment o One thing discussed was that fighting words in general and categorical exceptions do have communicative value, you cannot say that they are not speech, because they are o They are punished because they are not essential to express any idea, you don’t need them § In Cohen the individual chooses whether the word is necessary for his or her message, but in RAV the government declares whether the word is necessary or not to express the idea!!! § States can restrict certain words, but they cant do so based on content, rather context Chapter 6: Hate Speech • Example of hate speech: o Columbia University invites president of Iran to speak on destruction of Israel § Should these type of statements be protected? o Hate Speech: insults, slurs, or epithets directed to a group of people based on share characteristic of that group and it is usually gender, race, or religion • The problem of hate speech o Why is hate speech harmful? § such words as racially motivated ones are more harmful than others § because individuals are verbally attacked on a characteristic they cannot change • can cause self hatred, phsyological problems, lack of worth • Hate Speech in Context of Prejudice o Historical, political and social context of wod is important o Virginia v Black: § Two incidents § Incident number 1: Barry Black led KKK of twenty five people to rally near a highway making bad remarks about people of color etc and burned 30ft tall flag § Incident number 2: eliot and omara attempted to burn a cross in the yard of former neighbor to an African American § Result: context of prejudice and flag is important § If intent is to intimidate then it could be punished • The challenges of Hate Speech on Campus o According to Brennan: academic freedom is important • Increase in reports of Hate Speech o A response by colleges and universities o Ie: university of Michigan § Any behavior, verbal physical that stigmatizes or victimizes an individual on the basis of race, ethnicity, sex, sexual orientation and that • Involves an express or implied threat to an individual’s academic efforts, etc • Or has the purpose of reasonably foreseeable effect of interfering with an individual’s academic efforts, employment etc • Or creates an intimidating hostile environment for educational pursuits • Do Speech Codes Violate the First Amendment? o Judge Cohn in university of Michigan case said the law violated the constitution because it was too vague and overbroad to include almost too many words • The University of Wisconsin Policy o Students could be disciplined for racist or discriminatory comments if § The comments intentionally demean race, sex, religion or color § Or create bad environment § The university in conclusion said that they were only prohibiting racists comments and words that had no value § This analysis was rejected saying not all these words create a violence response § The court also denied the University’s idea of labeling hate speech as a category of unprotected speech • Thinking Critically about Hate Speech o The courts consistently agreed that hate speech regulations violated the first amendment § But commentators criticize the courts reasonings § These scholars said and supported hate speech regulations while court did not § The scholars believe that • Bad ideas do exist o No such thing as a false idea is what the court says § The scholars say such as assertions on racism which are undeniably bad ones § With human experience we learn that certain ideas are bad • The first amendment should trump the fourteenth o The scholars say first amendment shouldn’t always prevail when conflicts with fourteenth amendment o Ie: verbal harassment can affect victim’s academics why then should victims right to have an equal educational opportunity be subordinate to free speech right? • Hate speech is not a mere insult o It’s a verbal slap in the fact and can cause long term emotional pain • Hate Speech silences other’s voices o Members of target group are silenced because of connection between hateful speech and subsequent violent acts Chapter 7: Defamation • Defamation o IE: Obama was part of the Islamic plot o John Mccain fathered an illegitimate child o Defamation lawsuit: happens when person on receiving end contends statement is false § Communication of a false statement of fact that damages reputation o Libel: printed word o Slander: spoken word • Rationale used for defamation lawsuits o Ruining of individual’s reputation o These lawsuits impact the market place of ideas because whatever is libel is taken away from free debate o In Defamation only false statements that ruin reputation are punished • Ny Times vs Sulivan o Malice rule: before this law each state had their own laws o Majority rule: defendant risked getting sued for making false statement, even if they believed it was true § This included false statements on public officials o When: 1963: during the segregation movement o Where: it was decided in Alabama and then appeled to the Supreme Court o What: New York Times published ads on Sullivan who was an officer: he sued for defamation § He claimed it had innacuries and it did he got 500,000 dollars o New York Times appealed to the Supreme court § The new law would change defamation laws forever, it would now be nationwide law rather than state law § The new law was that actual malice had to be proven • Meaning that a communicator makes a statement knowing the statement is false, or without caring to find out if its true or not § No o Now question was what constituted a public official? § Who is a public official? • An elected city commissioner was clearly a public official • What about a high school teacher or a security guard at a park? § This was answered in Rosenblat vs Baer: • Baer was supervisor of the County in New Hampshire of a ski resort o Rosenblatt wrote a column and Baer said it constituted as libel against him o He sued and the majority opinion was that the public official was that in which they are amongst the hierarchy of government employees who have or appear to public as having substantial responsibility for conduct of governmental affairs • The lower courts decide however on a base by base casis o Some believe public school teachers are public officials while others don’t it varies • If a person has access to the media to tell his side uses media to perform the job then they are more likely to be considered public official o What is official conduct? § In the NYT case it was noted that the malice rule applied to public officials and there official conduct? What about their private life? • The supreme court made most of every aspect of a public officials life part of the official conduct § Garrison v Louisiana • District attorney of new Orleans: Jim garrison was conviced of criminal defamation based on his claim that the Louisiana state court judges were lazy o However, the court upheld the conviction because they said Garrison only attacked his personal life of the judges not their official conduct § The US court disagreed and said that anything which might affect the official’s fitness for office is relevant § Monitor patriot co v roy • Newspaper column that referred to democratic senate candidate as a bootlegger, roy sued the newspaper for libel o The judgment reversed the verdict and said that a charge of criminal conducts no mater how remote in time or place can never be irrelevant to an official’s or candidates fitness for office o Candidates have to inform the voters of every aspect of their lives that might affect the voting • The Actual malice rule applies to Public Figures, not Private citizens o Two cases that were not public officials § Wally Buts: former athletic director at University of Georgia, Butt sued publisher for libel and he got money § Second case is Gen Edwin Walker: private citizen and was libeled after leaving the service (Army) § Then came Curtis Publish Co v Butts so this helped determine actual malice rule with private figures • This just said that public figure could only sue if actual malice had been applied § Private Citizens • The Gertz Case o Rosenbloom: distributor of nudist magazines, and he was charged for obscenity , but it was reversed because their was no actual malice o The Supreme court § Three of five justices extended the malice rule to this public figure: when the topic of a news report is of public interest it is irrelevant whether the person is public of private • Now came the Gertz Case which led to final majority decision o Elmer Gerts represented a family in a lawsuit against a police officer: he had been convicted of murder after shooting this family’s son. The lawyer had been called a frontier communist in a newspaper and he sued and won o The supreme court declined to extend the malice rule using the market place of ideas rationale: • Standards for determining who is a public figure o Limited and All purpose public figures § All purpose public figures • Achieved general fame in community or are heavily involved in society’s affairs • Michelle Obama § Limited purpose public figures • Only considered public with respect to comments pertaining to their involvement with public controversy in question o Supreme Court Public Figure Decisisons § Active involvement in public issues makes a plaintiff a public figure § The lower courts have space to establish additional criteria for public figures § Limited Context Public Figures: if a person is renowned in a particular field is he a public figure even if not famous at large? • Craig owl was famous in the surging community and he sued for defamation • The court said he wasn’t a public figure because it wasn’t world wide famous • But there was a unique surfing community so the malice standard would be applied § Involuntary Public Figures: become a public figure through no purposeful actions of his or her own o Can a plaintiff return to private figure status over time? § Public officials and public figures need to prove actual malice as they thrust themselves into public sphere, negligence is sufficient for those who aren’t public figures § Passage of time narrows possibility for which a plaintiff is a public figure • If a lot of time passes • The New York Times Rule o Arguments for Knowing malice: falsity § There was a review of bose speakers in Consumer Reports Magazine and they argued that Seligson knew the statement was false because the average person knows that around the room is not logical § Supreme Court disagreed and said that there was no evidence that he knew the claim was false when he wrote it § You had to have actual proof of knowing falsity § Reckless Disregard for Truth • Recklessness is determined on a case by case basis • Reckless disregard based on serious doubts o Its not based on whether investigation was done before but instead is there sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts about the truth § Reckless disregard based on Defendant’s Motive § Reckless disregard based on deviation from professional standards • Extreme departure from profession standards is not enough • Poor investigative techniques may constitute circumstantial evidence that defendant had doubts • Malice and Negligence Compared o Strict liability: defendant is liable for false defamatory statement even if he or she reasonably believed it was true o Negligence: defendant must have acted with reasonable care in checking on the truth of an article before it is published, works in plaintiff’s favor •
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