MMC 4200, Week 3 Notes
MMC 4200, Week 3 Notes MMC 4200
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This 8 page Class Notes was uploaded by Deena Acree on Tuesday February 2, 2016. The Class Notes belongs to MMC 4200 at University of Florida taught by Sandra Chance in Winter 2016. Since its upload, it has received 22 views. For similar materials see Law of Mass Communications in Journalism and Mass Communications at University of Florida.
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Date Created: 02/02/16
Class Five (Chapter 2) — 1/19/16 Announcements: **We need to make sure that we take special note of all of the cases that are talked about in lectures or talked extensively about in the book (not footnote cases) • Thursday is a VERY important day • Topic: The First Amendment VIDEO: Daily Show: On Topic—First Amendment Rights First Amendment • "Congress shall make no law r especting 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 people peaceably to assemble, and to petition the Government for a redress of grievances. ” Why is the First Amendment important? • Ultimate protection for communicators. o It ultimately supports your right to communicate—if you don't fully understand it, you can't fully use it • Necessary to the operation of a democracy. o If we can't hold them accountable, the democracy suffers • Restricts all governments (federal, state, and local governments) from punishing critics — effective check on government power o In a lot of countries w/o free democracy, critics of the government are jailed/executed • Helps in the search for the truth. o "The more voices that can participate in a discussion, the more likely we will find the truth" • Individuals free to express themselves feel more fulfilled. VIDEO: What's Happening to Free Speech? • "You Can't SAY That!" with John Stossel • What really happens when you sensor speech? • Who decides what message is the one that's allowed? • Amendments against burning American flags have been attempted at least 3 times, but not passed First Amendment Theories o Why do we care about theories? • SCOTUS looks to these theories to determine if their interpretation of the First Amendment are valid • Marketplace of Ideas/Attainment of the Truth o The one that's most well-known, one of the main theories for why we have the FA o "Good ideas and the truth prevail in a free market." —John Milton, 1644 Areopagitica • Governance o "Informed citizenry will intelligently elect its leaders" — Alexander Meiklejohn o When you've learned about issues y ou can vote more effectively • Check on Government Power o Allows investigation and criticism of government — Prof. Vincent Blasi • Change with Stability o Helps let off steam and supports a stable and adaptable community which contributes to orderly change — Prof. Thomas Edison • Fulfillment o Natural and enriches our lives — Prof. Laurence Tribe VIDEO: The First Amendment at Yale Regulating Expression • "Congress shall make NO LAW…" (what does this mean?) o Absolutist view • Means no regulation, no rule, nothing • SCOTUS has never held th e complete absolutist position • Times when freedom of expression must give way to other personal and social interests o National security • If it's a legitimate national security issue, o Public order • Time/place/manner restrictions Judging the First Amendment • Judges have a duty to uphold individual rights protected by the Bill of Rights o They have to uphold the Constitution and protect the FA • Judges are the guardians of free expression o One of the protectors that push back against government regulation on speech • No absolutes — judges usually decide cases by weighing conflicting interests o Weighing against privacy or national security is an example • Judges use a number of analytical and procedural tools to figure out cases 14th Amendment • Adopted in 1868 • Prohibits states from passing laws which violate the federal Constitution • Incorporation—Idea that states are bound by the federal Constitution and laws "State Action" Required • Government action that infringe on expression — laws, court orders, actions of public officials o In order for the FA to be an issue, the government has to be involved o You don't have a FA claim against someone private o The government has to be the one trying to stomp out your rights First Amendment Due Process • When Government attempts to restrict or ban expression — content regulations o Requires government to prove speech is unprotected o Judges must use a certain process (due process) when deciding these cases o "Strict Scrutiny" test • Judges must use this during due process Judging the First Amendment 1. Bias against content regulation 2. Tendency not to defer to legislatures and lower courts decisions when deciding to restrict free speech 3. Standards of review: (tools judges use) 1. Strict scrutiny test — fundamental rights • Always used when dealing with your fundamental rights 2. Rational basis — other laws • All laws that are not fundamental rights 4. Scrutinize regulations for OVER -BREADTH, VAGUENESS, and ensure "LEAST DRASTIC MEANS" to accomplish a "COMPELLING" government interes t o Over-breadth: a law that tries to overstep its intentions, tries to make too many things illegal • Is it narrowly tailored to accomplish the government's interests? o Vagueness: open to personal interpretation, bad wording that makes it vague/not understandable for normal people, unclear and confusing o Least drastic: there is no lesser way to make it o Compelling: the reason a lot of them are struck down; there isn't a reason that is compelling enough First Amendment Analysis Depends On: • Speaker • Location of Speaker o Plaza Preacher • Content of Speech o Fighting words/hate speech/account of crimes Content of the Speech • The regulations that courts look at most seriously • VIDEO: What's Happening to Free Speech? (another section, 10mins) Hierarchy of Protected Expression • Level 1: Political and Social Expression o The most important speech o The courts have consistently upheld as the core FA speech o When it is restricted, the courts have to use strict scrutiny (toughest test to pa s) • Level 2: Commercial and Sexual Expression o Still includes FA protection, but not as much o Protections aren't as broad or inclusive o Gets a rational-basis test o "if the legislature has a pretty good reason, that's good enough for us" • Level 3: Fighting Words, Threats, Obscenity, False Advertising o Gets no FA protection o Problem is defining what something is (what's false advertising? What is obscene? A threat? Fighting words?) Content Regulations: • Where government is restricting the content of political, social, and artistic expression, judges must use STRICT SCRUNITY • Unless government has a “COMPELLING interest and the regulation is NARROWLY TAILORED and it is not OVERBROAD or VAGUE.” • If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” — Justice William Brennan, Texas v. Johnson • "The flag protects the people who hold it in contempt" • SCOTUS has said that you can't pass a statut e outlawing it • “No absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances he chooses.” — Cohen v. California o Government has some power to restrict some things o Cohen entered a courthouse after the Vietnam War with a jacket that said "Fuck the Draft" o He was arrested for disturbing the peace, convicted, and spent 30 days in jail o SCOTUS reversed his conviction, called it "the powerful medicine of free speech in a diverse and divided country" Fighting Words and Hate Speech • The kind of speech that makes us cringe • "Hurts our souls" • It's hateful to those it's being spoken to, and others hate it Fighting Words • Words that "by their very utterance inflict injury or tend to incite and iediate breach of the peace." — Chaplinsky v. New Hampshire o Trying to protect public order and safety (keeping riots from happening) o They are NOT protected by the FA o Chaplinsky insulted a Marshall (called him a fascist) o "Epithets likely to provoke the avera ge citizen into physical retaliation/acts of violence" o What happens when it's online? (immediate breach of the peace?) • Cohen v. California — Court said slogan NOT fighting words — protected comment on unpopular war — no immediate danger of a violent physic al reaction Hate Speech o Protected by the FA and enjoys FA protections o Marketplace of Ideas theory —there will be enough people who rise up and say that something is wrong/hateful/etc. • Written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion, or sexual orientation • Most expression of bigotry and prejudice is political speech protected by the FA, according to SCOTUS • Snyder v. Phelps o Military funeral case (Westboro Baptist Church) o SCOTUS upheld the rights of p rotesters (WBC) • Gainesville's Experience: "Burn the Koran Day" o Church that wanted to burn the "Koran" o Counter-protests happened o Terry Jones was at it again • Burned President Obama and Uncle Sam effigies • Cited by first department for illegal burning and fin ed $1,000 • Animal Crush Videos Class 6 (Chapter 2) — 1/21/16 Marketplace of Ideas • White Supremacists' protest & the response by others against them Laws Change • After the Snyder v. Phelps decision • Huffington Post • "New Law Criminalizes Westboro Baptist Church's Weapon of Choice" • Law was created that made it illegal to protest in 2 hours before and 2 hours after within 300 feet of a military funeral Animal Crush Videos • U.S. v. Stevens o Federal statute criminalizes commercial production, sale, or possession of depictions of cruelty to animals o Criminalize animals that show animal cruelty • Designed to punish "crush video creators ” o SCOTUS • Struck down as being overbroad • Justice Roberts says that it punished unlawful speech due to its "alarming breadth" Internet and Hate Speech • South Park's "Kick a Ginger Day" • It's easier to punish speech in Canada because they don't have the same protections • Fighting Words? o Incites violence o However, it has to be immediate action Parts of First Amendment Analysis • Content of the Speech — one of the ways that the FA gets analyzed o Very hard to be constitutional o Usually statutes get struck down based on one of the requirements for strict scrutiny o Most people think that their right should be protected, but that others shouldn't o It's a slippery slope as far as saying what people should or shouldn't say • What's offensive to some isn't to others • Appropriateness • Who draws the line? • The Speaker o Who is protected? • Adults have: § The right to speak and publish § The right to associate § The right to receive information § The right to solicit funds § Freedom from compelled speech • Witnessing something, being called to speak in court • Miami Herald Publishing Co. V. Tornillo • Talks about compelled speech • Government employees § Expressing opinions about candidates/engagin g in political speech • Miami Herald Publishing Co. V. Tornillo, 1974 § Tornillo files lawsuit seeking to enforce Florida's "Right to Reply" statute § The statute said that if a newspaper criticized you, you had a right to give a written reply and the newspaper had to run it § Florida Supreme Court upholds the statute § SCOTUS struck down the law as unconstitutional • Marketplace of ideas is the goal (and a good one), but it can't be legislated • Newspapers must be free to make decisions about editorial content • Government can't dictate what newspapers must print • The government cannot compel newspapers to say anything o What's happening to free speech? John Stossel (continued) @30 minutes • Student made a website making fun of teachers, listing their names and asking "are they demon worshipers?" and telling other students to "shun" them • Teachers sued him and his family for money, and tried to get criminal charges on the student o High School Examples • Tinker v. Des Moines (1969) § Important landmark case—high school students do not shed their constitutional rights at the schoolhouse gate § High schoolers wanted to wear black arm bands to protest the Vietnam War • They did so, and were punished § This case is the high point for protection of FA rights for high school students • Hazelwood v. Kuhlmeier (1988) § Students had written about teenage pregnancy in the newspaper § After distribution, the principal said that they could not do so because of privacy § SCOTUS said that they could impose restrictions on school -sponsored publications if the schools wanted to, and believed that it would cause problems in the classroom and restrict learning • Killian Nine (1999) § Nine honor students created a pamphlet called "The First Amendment" in reaction to an out-of-control principal with a lot of rules & regulations § Distributed it outside of the school, had nothing to do with the classroom § There was a picture of the principal with a bulls -eye and an arrow § Principal called it a hate crime, called the police and had them all arrested ( 18- year-old student was strip-searched in jail) § All of them were expelled § SCOTUS upheld the decision, saying that if it were to interfere with teaching the school could control it (even though it wasn't on school grounds) • John Doe v. Arkansas (2003) § 8th grade student in love with a girl, gets his heart broken § Writes her a rap song, but doesn't send it (puts it in desk) § Friend hears about it, reads it, tells the girl § Girl tells principal, he gets suspended § Parents appeal the 8-day suspension, school board suspends him for a year (with no option to go to an alternative school) • Morse v. Frederick (2007) § "Bong Hits for Jesus" § Supreme Court ruling § He held up a banner at while the Olympic torch was being carried by the schools that said "Bong Hits 4 Jesus" § Principal was outraged, ripped down the banner, and suspended him § Student sued the school for doing so (public demonstration at a public place) § SCOTUS upheld the discipline, saying it was a pro -drug message • Schools can limit and punish pro -drug messages • Courts becoming more involved with schools because of school sho otings and trying to protect students
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