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comm 407: weekly notes

by: Olivia Havelaar

comm 407: weekly notes COMM 407

Olivia Havelaar
Cal State Fullerton

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Notes for each chapter of Comm 407
Communication Law
Mariusz Ozminkowski
Class Notes
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This 12 page Class Notes was uploaded by Olivia Havelaar on Tuesday January 26, 2016. The Class Notes belongs to COMM 407 at California State University - Fullerton taught by Mariusz Ozminkowski in Fall 2015. Since its upload, it has received 17 views. For similar materials see Communication Law in Communication Studies at California State University - Fullerton.

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Date Created: 01/26/16
Comm 407 09/16/2015 ▯ Prior Restraint  Prior restraint (censorship): prohibition of speech before the act  Near v. Minnesota (1931) o Facts of the case o Jay Near published a newspaper, in which he attacked local officials o Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that provided that any person “engaged in the business” of publishing a “malicious, scandalous, and defamatory” periodical was guilty of a nuisance o Decision: 5 to 4 votes for Near o The protection against previous restraints is at the heart of the first amendment o The court held that the statutory scheme constituted a prior restraint and hence was invalid under the first amendment o “Any system of prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity” o The court established as a constitutional principle that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communications might be punishable after publication in a criminal or other preceding  Prior Restraint and National Security: The Pentagon Papers Case o New York Times Co vs United States (1971) o Facts: o The Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam o The President argued that prior restraint was necessary to protect national security o 6-3 for the New York Times o The gov’t did not overcome the “heavy presumption against” prior restraint of the press o The vague word “security” should not be used “to abrogate the fundamental law embodied in the first amendment” o Since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified  Prior Restraint and National Security: The H-Bomb or The Progressive Case o United States v. Progressive Inc. (1979) o A lawsuit brought against The Progressive magazine by the United States dept. of Energy o A temporary injunction was granted against the progressive to prevent the publication of an article that was claimed to reveal the secret of the hydrogen bomb o The Progressive appealed but the case became moot when other magazines published similar articles. The gov’t dropped the case o The Progressive published the article November 1979 ▯ Censoring Government Employees  Contracts versus Free Speech o Problematic Books (e.g. Prohibition of publishing books based on classified info obtained while employed by the gov’t) o US v. Marchetti (1972, US Court of Appeals): censorship allowed but only for classified info o Snepp v. US (1980): Snepp violated his employment contract with the CIA  US v. National Treasury Employees Union (1955) o Facts: o The ethics in government act of 1978 prohibits members of congress, federal officers, and other government employees from accepting an honorarium for making an appearance, speech, or writing an article o The national treasury employees union filed suit challenging the honorarium ban as an unconstitutional abridgement of its freedom of speech o Question: Does the honoraria ban abridge freedom of speech as protected by the first amendment? o Conclusion: Yes, 6-3 decision, the court declared that a flat ban violated free-speech rights o Concerns about impropriety do not apply if there is no link between a government employee’s job and “the subject matter of the expression or the character of the payer” ▯ False Speech: Stolen Valor Act  US v. Alvarez (2012) o Facts: o Xavier Alvarez claimed to be a retired Marine and a recipient of the congressional medal of honor o Question: does the stolen valor act violate the free speech clause of the first amendment? o Decision: yes. The court based restrictions on speech are subject to strict scrutiny and are almost always invalid, except in rare and extreme circumstances o Congress drafted the stolen valor act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper ▯ What is speech?  All forms of expression:  The actually spoken/written communication  Symbolic speech/ expressive conduct to convey a message ▯ Hate Speech: displays containing abusive invective, no matter how vicious or severe, are permissible as long as they don’t provoke violence etc.  RAV vs. City of St. Paul (1992)  Virginia v. Black (2003) o While a state, consistent with the first amendment, may ban cross burning carried out with the intent to intimidate, the provision on the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form ▯ Flag Burning  Texas v. Johnson (1989) o During the protests against the Republican National Convention in Dallas in 1984 Gregory Johnson set on fire a national flag o He was convicted under Texas criminal statute making: it is a criminal offense to… desecrate.. a state or national flag o He was sentenced to one year in prison and a fine of $2,000 o The supreme court was divided 5-4 in the decision but ruled for Johnson o It ruled that the desecration was “expressive conduct”. Thus, Texas statute prohibited expressing ideas, not desecration and thus was not permissible  US v. Eichman 1990 o The federal flag protection act adopted in response to Texas v. Johnson is unconstitutional under the first amendment ▯ Prior restraint: other methods of censorship  Time, place and manner restriction: literature distribution, protests, picketing, news racks  Licensing (excessive requirements/unequal)  Informal coercion (warnings)  Financial burdens (tax on certain publications, extra fees, limiting payments) ▯ Standards of judicial review  Minimum scrutiny o Rational standard/ legitimate interest: requires the law to be reasonably related to a legitimate state interest  Intermediate scrutiny o Important governmental interest: requires the law to be substantially related to an important government interest  Strict scrutiny o Compelling governmental interest: the law must be narrowly tailored to address a compelling state interest o o o Email him with facts of the case, question the court was asking, and resolution (conclusion) o Identify in the court of appeals o Use the legal name of the case (ex: Johnson vs. the US) o Copyright case: youtube, baby recorded with song playing asked to be taken down because violation of copyright ▯ ▯ Punishment after the fact  More likely than prior restraint, but still very unusual  Will be covered in greater detail in later chapters Compelled Speech  Media access  Compelled financial support (ex: union dues)  Attribution requirements ▯ Comm 407: The First Amendment 09/09/2015 ▯ ▯ The Legacy of Freedom ▯ - 2500 years quest for freedom of speech: From Athens to the First Amendment  In Athens, the reforms of Solon in the 590s BC extended the right of citizens to express opinions  The trend towards a liberal regime peaked in the age of Pericles in the 430s BC  But even Athenians had certain limits on what they considered acceptable  The most famous example of this came when a popular just found Socrates guilty of introducing false gods and corrupting the young and sentenced him to death ▯ The Romans  The Roman Republic allowed a reasonable degree of free speech for its citizens  One advocate of free speech in the dying days of the republic was Cato the Younger, the chief political antagonist of Julius Caesar and the Triumvirate ▯ Gutenberg and printing press (1450s)  By 1500 there were in Europe at least nine million books of 30 thousand titles and a thousand printers ▯ English traditions of freedom  With the invention of printing presses, a system of licensing and censorship was established th  The first real progress in opposing censorship began in the 17 century, particularly with the petition of right (1627) which meant that no person could be arrested solely for disagreeing with the government  At the height of the Civil was in 1644 came the publication of John Milton’s Areopagitica: an attack on an act the Parliamentarians has passed in 1643 sought to impose a new form of censorship  1689 Bill of Rights grants freedom of speech in Parliament  1789 The Declaration of the Rights of Man, a fundamental document of the French Revolution, provides for freedom of speech  1791 the First Amendment of the US Bill of Rights guarantees four freedoms: of religion, speech, the press, and the right to assemble ▯ Freedom of Speech  Free speech is a means to an end: discovering the best idea possible ( social reasons )  Free speech is also an end itself: the desire for free expression, self- fulfillment ( individualistic reasons ) ▯ The Case for Free Speech 1  Discovery of truth: the pursuit of political truth through competition of ideas  A means of political participation  voting  Check on government: the restraint on tyranny, corruption, and ineptitude  Social stability: the facilitation of majority rule ▯ The Marketplace Theory  The best test of truth is the power of the thought to get itself accepted in the competition of the market  Freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth ▯ Free expression and human dignity  The first amendment serves not only the needs of the polity but also those of the human spirit- a spirit that demands self-expression  Self-fulfillment  Pleasure, gratification  Respect ▯ First Amendment (Bill of Rights ratified in 1791)  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the peaceable to assemble, and to petition the government for a redress of grievances ▯ Clear and Present Danger? (page 45)  The Alien and Sedation Acts of 1798 (expired 1801)  The Espionage Act of 1917 (applied mostly during war time) – still the law  The Sedation Act of 1918 (repealed 1921)  Japanese Internment Executive Order  McCarthyism  The Patriot Act  NSA ▯ Clear and Present Danger Test  The question is whether the words used are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent ▯ Schenck v. United States (1919)  Facts: During WW1, Schenck mailed circular to draftees arguing that the draft was a monstrous wrong (but advised only peaceful action)  Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment 2  Question: Are Schenck’s words and actions protected by the 1 st amendment?  Conclusion: Schenck is not protected in this situation. During wartime, utterances tolerable in peacetime can be punished ▯ Abrams v. United States (1919)  Facts of the case o The defendants printed and distributed leaflets denouncing the war and US efforts to impede the Russian Revolution o The defendants were convicted for inciting resistance to the was effort. They were sentenced 20 years in prison  Question: Do the amendments to the Espionage Act or the application  Conclusion: No and no. The act’s amendments are constitutional and the defendants convictions are affirmed. The leaflets are an appeal to violent revolution and an attempt to curtail production of munitions  Dissent: Holmes and Brandeis dissented on narrow ground: the necessary intent has not been shown ▯ The First Amendment and the States  States espionage/sedation acts  They were challenged based on the first amendment. However, according to Barron v Baltimore (1833): “The first ten amendments contain no expression indication an intention to apply them to the State governments.” ▯ Gitlow v. New York (1925)  Facts of the case o Gitlow, a socialist, was arrested for distributing copies of a “left-wing manifesto” that caked fir the establishment of socialism through strikes and class action of any form o Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force  Question: o 1. Is the new york law punishing advocacy to overthrow the government….. ??? (on PowerPoint) o Legal issue: does the 1 amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state th shall deny (14 amendment) o On the merits (facts): a state may forbid both speech and publication if they have a t4endacny to result in action dangerous to public security, even though such utterances create no clear and present danger. The rational of the majority has sometimes been called the “dangerous tendency” test 3 ▯ Incorporation Doctrine  Gitlow’s decision was based on the equal protection clause of the th 14 amendment (incorporation doctrine): no state shall… deny to any person within its jurisdiction the equal protection of the laws  All jurisdiction in the United States are required to respect freedom of speech ▯ The Smith Act of 1940 (The Alien Registration Act)  The Act made it illegal for anyone in the United States to advocate, abet, or teach the desirability of overthrowing the government  The law also required all alien residents in the United States to file a comprehensive statement of their personal and occupational status and a record of the political beliefs  This statute was made the basis of a series of prosecutions against leaders of the Communist party and the Socialist party  The constitutionality of the “advocacy” provision was upheld in Dennis v. United States (1951)  The court modified this position in Yates v. United States (1957) construing “advocacy” to mean only urging that includes incitement to unlawful action ▯ Brandenburd v. Ohio (1969)  Clarence Brandenburg was convicted of violating Ohio statute for advocating racial strife during a televised Ku Klux Klan rally  Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenberg’s right to free speech?  Does a person have the right to advocate an illegal action?  The constitutional guarantees of free speech.. do not permit a state to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action ▯ “Dangerous speech” test  Previously “Bad tendency test”: “dangerous speech” ▯ Deciding what’s protected and what’s now  Standard of judicial review: o Minimum scrutiny (rational standard) o Strict scrutiny (compelling governmental interest) ▯ Strict Scrutiny  The highest standard of judicial review. To pass strict scrutiny, the law or policy: o 1. Must be justified by a compelling governmental interest o 2. Must be narrowly tailored to achieve that goal or interest o 3. Must be the least restrictive means for achieving that interest 4 ▯ Intermediate scrutiny: Commercial speech, can’t really censor it but you can more flexibility to control. Includes gender 5 Week 5 09/23/2015 ▯ Defamation ▯ Chapter four: Libel and slander ▯ ▯ Protection of Person’s reputation  Basic human dignity: protection of one’s reputation from unjustified invasion and wrongful hurt ▯ Defamation of character  Wrongful hurting a person’s good reputation  Slander (spoken) and libel (written)  Defamation is a civil wrong (tort)  Any living person or legal entity (ex: corporations) may sure for defamation  Special case: groups (members must be affected as individuals)  Government organizations/agencies may not sue ▯ Tort: a civil wrong which can be readdressed by awarding damages  These wrongs result in an injury or harm constituting the basis for a claim by the injured party  Torts fall into three general categories: o Intentional torts: you meant it o Negligent torts: when they didn’t mean it, no intention o Strict liability: your action caused injury so you are liable regardless if you meant it or not (ex: product liability)  There are numerous specific torts: trespass, assault, negligence, products liability, intentional infliction of emotional distress, nuisance, defamation, invasion of privacy ▯ Libel suits are troublesome  The most common legal problem faced by a person who work in the mass media: about 75% of lawsuits filed against the media are in this category  Lawsuits take a lot of money and time  Damage claims are often outrageous  Libel law is complicated and confusing (often judges make erroneous decisions)  Some plaintiffs file frivolous libel lawsuits to silence the critics in the media ▯ The lawsuit as a weapon  “Strategic lawsuit against public participation” (SLAPP): run that story and we will take you to court  Although 90% of SLAPP lawsuits fail, they are intended to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal ▯ In 1992 California enacted a statute intended to prevent the misuse of litigation in SLAPP suits  It provides for a special motion at the outset of a lawsuit to strike a complaint ▯ Elements of defamation:  Defamatory content  Identification  Publication  Falsity  Fault  Harm/ compensation ▯ Defamatory content  A communication which has the tendency to do hard the reputation of another as to lower him/her  Imputation of criminal behavior  Sexual references and implications  Personal habits (honesty, integrity, etc.)  Ridicule (showing someone “uncommonly foolish or unnatural”  Business reputation  Disparagement of property (product) ▯ Defamatory content  Libel per se (in itself: damages are implied) a statement that is defamatory on its face (regardless of context): murder, rapist, etc.  Libel per quod: depending on the situation/ context: communist, liberal, right-winger, etc.  Today the distinction is not important: the plaintiff needs to prove damages in both ▯ Fair comment and criticism: fact versus opinion (pg. 145)  Expressions of pure judgments are not subject to libel lawsuits  But: expressions of “opinion” may often imply an assertion of objection fact. Couching such statements in terms of opinion is often not sufficient ▯ Distinguishing facts from opinions  The precision and specificity of the statement  The verifiability of the statement  The literary context in which statement is made (ex: satire)  The “public context) of the statement ▯ Identification  At least some of the readers or listeners much understand to whom the defamatory statement refers  Plaintiff explicitly named  Suggesting plaintiff’s actual name  Picture, drawing, description  Similarities to fictional characters Publication  Who made the statement?  Who disseminated it?  Who repeated it?  It must be communicated to a third person, someone other than the plaintiff or defendant  Internet services are generally exempt from liability ▯ Fault: standard for truth/falsity  Strict liability on the part of the defendant: a defendant could be liable for defamation merely for publishing a false and defamatory statement  The rules did not require that the defendant knew that the statement was false or defamatory in nature  The only requirement was that the defendant must have intentionally or negligently published the information ▯ Public persons and officials  Public figures are those who thrust themselves “into the forefront of particular public controversies in order to influence the resolution of the issues involved”  Public officials are those who have substantial government responsibility


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