Media Law notes, test 1
Media Law notes, test 1 019:140
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This 14 page Class Notes was uploaded by Cait Mahr on Sunday February 8, 2015. The Class Notes belongs to 019:140 at University of Iowa taught by Dr. Eko in Fall. Since its upload, it has received 30 views. For similar materials see Media Law Test 1 in Journalism and Mass Communications at University of Iowa.
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Date Created: 02/08/15
09092014 Before class Ch 1 Review Certiorari Latin term quotsend the case upquot pg 15 ChiefJustice of Supreme Court John Roberts Per curiam decision of the court pg 16 NYT vs US 1972 case Summary judgement discovery information gathering process Subpoena Probable cause is there enough evidence to justify Before class Ch 2 Review Americans are suspicious of the government so the rst amendment is intended to check the government to make sure they do not abuse their rights Content neutral regulation government cannot regulate speech based on the content viewpoint discrimination Sources of American Law continued 0 6 Common Law developed after the Norman Conquest 1066 AD mixture of Roman law Parisian law and traditions of British isles o 1215 Magna Carta extracted from King John Recognized principle of rule of law 0 Common law is based on stare decisis or legal precedent let the past decision stand 0 Common law system was brought to America by British settlers Jamestown 1607 amp Puritans Plymouth Rock MA 1620 American exceptionalism is a Puritan concept The Federal Court System Federal District Courts lowest of the hierarchy At least one in every state O Brien heard in US District Court for District of Bass Boston Federal Courts of Appeal 13 circuits O Brien heard in 1st Circuit Supreme court of the us highest court in the land Reviews of cases by us court is discretionary by Writ of Certiorari Before class Ch 1 Review Certiorari Latin term quotsend the case upquot pg 15 ChiefJustice of Supreme Court John Roberts Per curiam decision of the court pg 16 NYT vs US 1972 case Summary judgment discovery information gathering process Subpoena Probable cause is there enough evidence to justify Before class Ch 2 Review Americans are suspicious of the government so the rst amendment is intended to check the government to make sure they do not abuse their rights Content neutral regulation government cannot regulate speech based on the content viewpoint discrimination The First Amendment 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 people peaceably to assemble and to petition the government for a redress of gnevances The word Congress means Federal state and local government as well as state colleges and universities and school boards What do we mean by establishment of religion 0 We don t want a government established religion Freedom of speech includes symbolic speech and expressive conduct like likes on Facebook Bland vRoberts Freedom of the press means the institutional press as well as the o Obsidian Finance v Cox blogs are press Antiestablishment of Religion System of negative freedoms Congress shall make no law tells the government what it may not do to interfere with freedoms of the people Grounded in the distrust of the government 0 Neutrality Protected freedoms Freedom rom Europeanstyle established or state religion Church of England Evangelical Lutheran Church Scandinavian countries Historically there was no separation of church and state in the ancient Near East Greek and Roman empires some Roman emperors were dei ed worshipped as gods France was The Very Catholic Kingdom of France Eldest Daughter of the Church Greece is orthodox Today Russia is Orthodox example Pussy Riot case shows that Russia is against blasphemy Freedom of Speech Theory amp Philosophy 1 Necessary for search for truth in the marketplace of ideas JS Mill 2 Let truth and falsehood wrestle in the open John Milton Unorthodox unusual eccentric and even offensive ideas are protected 3 Marketplace of ideas became basic metaphor of American democracy Abrams v United States 250 US 616 1919 There is NO SUCH THING AS AN UNACCEPTABLE IDEA Gertz v Welch in syllabus THE RIGHTS OF THE SPEAKER TRUMP THE FEELINGS OF THE LISTENER one acception Fighting Words Doctrine Chapinsky v New Hampshire 0 This is the one exception to the previous point Chaplinsky Rochester NH street preacher called police officers quotGod damned Fascists God damned racketeersquot Arrested for disturbing the peace 0 Nazis Germany o Fascists Italy o Organized crime ma a the mob are examples of racketeers Was the arrest a violation of his First Amendment rights 0 No Fighting words Slurs that are said quotin your facequot and tend to provoke immediate physical retaliation are not protected by the First Amendment 0 Epithet an insult Regulating Expression 0 In the US freedom of speech and of the press is guaranteed by the First Amendment and made possible by 0 1 Supremacy Clause Article VI Clause 2 This constitution and the Laws of the United States and all Treaties made under the Authority of the United States shall be the supreme Law od the Landquot Any federal state or local law that contradicts the constitution cant stand 0 2 Judicial Review The power of the courts to serve as arbiters referees and decide whether laws unconstitutionally restrict freedom of speech and of the press 0 3 Fourteenth Amendment quotdue processquot Limitations on laws and legal proceedings to guarantee fundamental fairness justice and liberty not equality or dignity All persons born or naturalized in the US are citizens of the US No state can deny citizens of rights 1868 Doctrine of lncorporation The First Amendment is applicable to the states through the due process clause of the 14th Amendment what congress cant do under the First Amendment States cannot do under the 14th 0 Git0W v New York 268 US 652 1925 Corinna Zarek Reporters Committee For Freedom of the Press 0 FOIA freedom of information act Carpenter v US The SEC Securities and Exchange Commission manages stocks and bonds and shit amp Insider Trading Journalists and Insider trading 0 OO FACTS Kenneth Felis and R Foster Winans convicted of violating 10b of Securities Act of 1935 which makes insider trading illegal SEC Act also prohibits transmissions quotby means of wire radio or television communicationany writings signs signals pictures or soundsquot of any fraudulent schemes Winans reporter for the Wall Street Journal wrote a daily column were the Journal s con dential property WSJ policy Prior to publication contents of the column were the Journal s condifential property Winans et al conspired with Christopher and did insider trader Kidder Peabody amp SEC investigate Christopher charged argued his conduct may have violated workplace rules ethics not criminal law Pump amp dump Issue could criminal liability be imposed on Carpenter and Winans for wire and mail fraud Holding Yes Court of Appeals affirmed conviction Reasoning The US Supreme Court was evenly divided 44 over the SEC Convictions judgment of the Court of Appeals was affirmed The court also affirmed the wire and mail fraud convictions The Journal as Winan s employer was defrauded of much more than its contractual right to his honest and faithful service Con dential business info has long been recognized as property A person who acquires special knowledge of info by virtue of a con dential or duciary relationship with another is not free to exploit that knowledge or info for his own personal bene t Fiduciary relationships that are con dential ex Lawyer and client priest and confesser Freedom of Information Act 0 Presidential Records Act Presidential records are made public 12 years after administration o 9 exemptions under FOYA why the gov would lawfully withhold information o if there is another federal law that states that records aren t public they are exempt from the FOIA 0 Privacy Act Requests Personal Info 0 Not all speech is protected the same under the 1st AM Hierarchy of Free speech 0 Political and Social expression has the largest protection 0 Commercial speech Advertising Deceptive or misleading speech is banned content based regulation 0 Lowest sexthemed speech 7 dirty words banned from broadcasting 0 Not allowed Obscenity ghting words Shaplenski v New Hampshire deceptivemisleading advertising advertising for illegal products village of Hoffman Estates v Flipside First Amendment is not absolute Time place and manner regulations Gov can regulate where when and how speech is made as opposed to what is said 0 US is a country of ordered liberties Us Supreme Court and state supreme courts examine content and contentneutral regulations for vagueness and overbreath this constitutional defect is the opposite of narrowly drawn 0 Eg Papish v University of Missouri Curators quotState colleges and universities are not enclaves immune from the sweep of the First Amendmentquot BD of Airport Comm Vs Jews forJesus Inc Jews forJesus Inc stopped from distributing paphlets in LAX walkway District court held terminal was traditional public forum Ninth Circuit affirmed o Messianic Jews 0 Said they couldn t because 1st Amendment activity illegal in airport Issue Does banning all First Amendment activitiesquot in LAX violate the First Amendment Holding Yes Reason Three kinds of for a traditional designated amp nonpublic LAX regulation which created a quotFirst Amendmentfree zonequot was facially overbroad amp unconstitutional Vagueness amp overbreadth versus narrowtailoring Expressive Conduct Under the First Amendment the word speech means the communication of ideas and information between people ncudes offensive and controversial ideas Sometimes speech is nonerbal symbolic communication that involves conduct ag burning cross burning Wearing arm bands as antiwar protest Tinker v Des Moines Expressive association is the right to get together with like minded people for purposes of expressing ideas or communicating certain kinds of messages Flag burning Texas v Johnson 491 US 397 1989 0 Johnson burned ag during Republican National Convention in Dallas s conviction for desecration of the ag constitutional Holding NO Flag burning is expressive conduct therefre4 protected under 1 A Heckler s Veto Demanding Freedom from speech Terminiello v Chicago Terminiello antiSematic antiCommunist amp racist Catholic priest invited to speak at rally in Chicago Riot started and mob outside started throwing rocks and other items at the building and at the police Terminiello arrested for inciting mob to violence s speech that stirs people to anger protected Holding yes Reasoning banning such speech is a quotheckler39s vetoquot quotA function of free speech is to invite dispute or even stir people to angerquot Hecklers are selfappointed censors of what other people can hear 0 No standardization of speech under First Amendment Chicago laws were overbroad Terminiello v Chicago 337 US 1 1949 Speech can only be banned if it incites imminent illegal action Brandenburg v Ohio 0 Racism in European football 0 Ray Kelly at Brown NY Commissioner antidemocratic Expressive association Organizers of St Patrick s Day Parade have a right to choose which groups to include in their parade Hurley v IrishAmerican Gay Lesbian amp Bisexual Group of Boston 515 US 557 1995 Massachusetts courts said they had to allow everyone organizers of parade appealed to Supreme Court 0 Issue Whether the Hurley group could exclude people who s message they disagreed with 0 Holding Yes Forum Analysis Regulation of Speech Locations 1 Traditional public forums parks streets sidewalks Standard content neutral rules for access 0 Nazis KKK Antiwar Civil rights activists etc have right of access subject to contentneutral time place and manner regulations Village of Skokie v National Socialist Party Capitol Square Review amp Advisory Bd v Pinette 2 Designated public forums Places partially set aside for public use after school clubs library meetings etc 3 Nonpublic forums prisons military bases airports International Society of Krishna Consciousness v Lee 505 US 672 1992 Viewpoint discrimination the government may not discriminate against speech or speaker Rosenberger v Univ of Virginia Prior Restraint The power of the government to censor publications before the fact Held UNCONSTITUTIONAL BUT there is a NATIONAL SECURITY EXCEPTION obstruction of recruiting service publication of sailing dates location and number of troops and their sailing dates in war time NEAR M MINNESOTA 283 US 697 1931 0 Prior restraint is not allowed 0 Ex Obama saying he is starting a war on ISIS 0 Should names of pilots be given NO 0 Information would get passed on to ISIS New York Times v US 403 US 713 1971 per curiam Restricting freedom of the press in the name of national security National Security exception 0 Vietnam lost 60000 3000 MIA 0 Nixon did not end the war as promised o Press quotWe re going to nd out how we got in Vietnamquot 0 Top secret group to investigate The Pentagon Papers case Ellsberg leaked secret government doc regarding American involvement in the Vietnam war 0 Freedom of the press v National security 0 Government tried to stop New York Times and Washington Postfrom publishing 0 ISSUE Is it constitutional for the government to impose blanket prior restraints in the name of quotnational securityquot 0 HOLDING No 0 REASONING National security exception The government has a heavy burden of showing that publication would result in quotdirect immediate and irreparable damage to our nation and its peoplequot Per Curiam decision of the court but they couldn t agree on the reasoning Free Speech in High Schools Different from College Hazewood v Kuhmeier 484 US 260 1988 o Principal s deletion of articles from HS newspaper does not violate students First Amendment rights Congress anything that is public Tinker v Des Moines 393 US 503 1969 Wearing armbands in public school as a form of symbolic protest protected by the First Amendment Bethe School District v Fraser Schools may regulate sexually offensive speech that is lewd and vulgar They can also regulate obscenity since it has no First Amendment protection 0 Sexual Innuendo suggestsimplies double meaning Morse v Frederick 551 US 393 2007 Bong Hits forJesus Principal may consistent with the First Amendment restrict student speech at school event when that speech promotes illegal drug use Social Media Doninger v Niehoff Student may be punished for off campus social media speech quotdouche bagquot quotpiss principal offquot that disrupts school environment Censorship and Campus Speech Codes Public Schools and universities have attempted to control hate and other uncivi speech on campus Most speech codes unconstitutional Colleges quotState Colleges amp Universities are not enclaves immune from the sweep of the First Amendment quotPapsh v University of Missouri Curators quot Contentbased speech codes violate the First Amendment Doe v U of Michigan 1989 o Said a certain race is better at math than another through research but said it crudely 0 ISSUE Whether the speech code prevented certain kinds o HOLDING No lota Xi Chapter of Sigma Chi v George Mason University 733 F Supp 792 ED Va 1991 Ugly Woman Contest is protected speech 0 Null and Void Kincaid v Gibson University s refusal to distribute yearbook due to student content violated First Amendment Hosty v Carter quotSpeech in a nonpublic forum funded by taxpayers may be open to reasonable regulation even at the college level if newspaper is not independent 0 Ex University cannot touch DI because it is independent Stanley v McGrath Cutting off funding for the University of Minnesota Daily because of its content offended a faculty member quotThird World students blacks Jews feminists gays lesbians and Christiansquot Violates the newspaper s First Amendment rights 0 Cut off funding paper sued 0 ISSUE cutting off funding violated First Amendment rights 0 HOLDING yes 0 Reasoning You must not cut the funding because if you do so it s content based regulation THE RIGHT OF THE SPEAKER TRUMPS THE FEELINGS OF THE LISTENER exam Hate Speech Speech characterized by expressions of hatred toward people on basis of race ethnicity religion national origin or sexual orientation Doe v University of Michigan The public or private display of ags emblems insignia and other indicia of unpopular discredited or even genocidal groups is not an exception to this principle National Socialist Part of America Nazi v Skokie 432 US 43 1977 US Supreme Court s hostility towards censorship even of bias motivated speech and expression Near v Minnesota eX rel Olson 283 US 697 1931 Brandenburg v Ohio 395 US 444 1969 0 Member of The KKK prosecuted for advocating racial and religious hatred against African Americans and Jews 0 US Supreme Court First Amendment does not permit states to ban advocacy of use of force or of violation of the law unless such advocacy is directed to inciting or producing imminent lawless action For speech to be prohibited or punish it must contain speech and action elements Virginia v Black 538 US 343 2003 KKK cross burning is protected expressive conduct unless it is done with an intent to intimidate Then it becomes unprotected quottrue threatquot Virginia v Black quotTrue threatsquot Berry black is a self described racist 0 Bible says mixing of blood ruining of race Unlikely allyblack dude o Protecting his symbolic speechexpressive conduct burning of the cross 0 True threats won case Village of Skokie v National Socialist Party of America The Occupy Wall Street and the First Amendment The First Amendment grants citizens right to peacefully assemble to petition the government in public placesforums The US has a system of ordered liberties law and order All demonstrations in public forums required to have event permits and follow contentneutral time place and manner regulations US v O Brien Ward v RockAgainst Racism After complaints about excessive noise levels from other park users and nearby residents City of New York required rock bands to follow soundampli cation guidelines performers required to use soundampli cation equipment and sound technician provided by the city This volume control technique was challenged by the sponsor of a rock concert 0 NY Bandshell is a public forum for performances in which the gov s right to regulate expression is subject to the protections of the rst amendment In a public forum the gov may impose reasonable restrictions on the time place or manner of protected speech provided the restrictions quotare justi ed without reference to the content of the regulated speechquot 0 NY City s soundampli cation guidelines meets the strict scrutiny test it is narrowly tailored to serve the substantial and contentneutral governmental interests of avoiding excessive sound volume and providing sufficient ampli cation within the bandshell concert ground and the guideline leaves open ample channels of communication Accordingly it is valid under the rst amendment as a reasonable regulation of the place and manner of expressionquot Clark v Community for Creative NonViolence 468 US 288 1984 0 National park regulations allow temporary structures in the mall for demonstrations but not camping Community for Creative NonViolence sued because they were not allowed to sleep in the symbolic tents Issue Does a National Park Service regulation prohibiting camping in certain parks violates the First Am when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in connection with a demonstration intended to call attention to the plight of the homeless Holding No Reasoning Main question in determining content neutrality in speech cases generally and in time place or manner cases in particular is whether the gov has adopted a regulation of speech because of disagreement with the message or content of the speech Demonstrators known as Occupy Boston was affiliated with the Occupy Wall Street Movement Occupied Dewey Square locus in quo a public forum in Boston in 2011 Occupy Boston claimed that the egalitarian community they had started on the site to quottake back the cityquot was protected under the 1st Am right of freedom of assembly quotThe occupation is the messagequot 0 Issue Are Occupy Boston s occupation and living activities protected under the 1st Am 0 Holding No 0 Reasoning Occupy Boston has not shown that the seizure and occupation of a public forum is protected by the 1st Am The law of defamation has biblical origin Proverbs 221 quotA good name is better than riches and loving favor than silver and goldquot An individual s good name and reputation is that person s wealth Ensoulment everyone is special because you have a soul given to you by God Libel and slander destroy reputation Examples accusing a woman of quotmoral turpitudequot loose morals sleeps around Falsely accusing someone of having a STD or AIDS Facebook posting that someone has herpes is criminal harassment quotVictim X has herpes Ew gross She should stop spreading her legs like her motherquot Commonwealth PA v Cox 2013 Falsely accusing someone of being a member of a disreputable organization like the Nazi Party the KKK Communist Party Al Qaeda or lSlS is libelous Libel and Slander Libel is written defamation while slander is spoken defamation radio Libel proff plantiff person whose reputation is so bad no futther harm can be done to it o jones v Globe Maria Trump was a socialite Jones publicist had a shoe fetish but Jones was libel proof because accusations were true 0 Guccione v Hustler Magazine 800 f2d 298 1986 Provable truth is a defense in libel Exceptio Veritatis Truth is grounds for exempting speakers from liability not the literal truth only substantial truth or a gist of the truth required In US only living person can be libeled Elements of Libel 1 Identi cation quotOf amp Concerningquot 0 Plaintiff must prove that the defamatory meaning applies to himher 2 Publication libel must be seen or heard by third person 0 Republication rule amp scienter guilty knowledge 0 quothe who repeats a libel makes it his ownquot 0 Internet service providers are distributors not publishers under communications decency act of 1996 3 Statement must be defamatory 4 Plaintiff must prove falsity 5 Defendant was at fault Types of Libel and Slander Libel per se on its face crime etc Libel per quod Innuendo suggestion in context of a story
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