Week 3 SMPA 2173
Popular in Media Law
Laura Castro Lindarte
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Popular in Journalism and Mass Communications
This 5 page Class Notes was uploaded by Laura Castro Lindarte on Saturday September 17, 2016. The Class Notes belongs to SMPA 2173 at George Washington University taught by William L. Youmans in Fall 2016. Since its upload, it has received 6 views. For similar materials see Media Law in Journalism and Mass Communications at George Washington University.
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Date Created: 09/17/16
September 13, 2016 The 1st Amendment: Theory and Reality (P.2) ● Strict Scrutiny: government interest should be compelli arrowly tailored/least restrictive, used with contentbased ○ Not automatic that strict will be unconstitutional, one to one basis ● Intermediate scrutiny: government interest should be importa ubstantially related/narrowly tailored for incidental ef ontentneutral, symbolic content, public forums etc. ● Rational review: government interest should be legitima easonable means to be an end/rationallyrelated, law of general application, economic, commerce ● Political speech: elections and campaign finance ○ Strict scrutiny because is related to what 1st amendment and the Constitution is about ○ Debate on whether giving money is political speech or not ○ Campaign finance: DEREGULATION ■ Buckley v. Valeo (1976): upheld government law that limited and said that campaign spending is political speech a. Limiting campaign spending has harms ■ BCRA (2002): ct limiting campaign spending a. Ban on soft money and corporate and donation communication 30 days of election b. If only looking at issue okay but actively supporting or opposing candidate is not c. McConnell rule upheld BCRA because party group could not advertise ■ FEC v. Wisconsin Right of Life (2006 dhoc ruling, ad was punished but court said that banning ad would decrease political speech of organizations ■ Citizenship United v. FEC (2010) uilds PRECEDENT, brought down ban on independent organization giving money and ads ■ SpeechNow.org v. FEC (2010): s uper PACs increased as places where independent corporations could give money ○ State regulations: ■ Randall v. Sorrell (2006 ourt brought down Vermont law limiting how much money candidates can spend in their campaign because it did not allow them to campaign efficiently ■ Nixon v. Shrink Missouri Government PAC (2000): if narrowly tailored, regulations can continue ● FEC can still have public exposure of donation and other reporting requirements ● Anonymous Speech: mixed view (recognize tradition to protect it but in certain circumstances it is not protected) ○ Looked at through adhoc ○ McIntyre v. Ohio: McIntyre didn’t put name on pamphlet which broke Ohio law, Supreme Court said not narrowlytailored to control bad speech so not okay ○ Doe v. Reed: state referendum on gay marriage so needed petition with signatures and organization wanted signatures to be released, l ower court said that giving signatures help validate elections of referendum, i ntermediate scrutiny, no autonomous in ballot ■ Different because McIntyre had no clear government interest, strict scrutiny ■ To check that there are no fake signatures ● Government speech: speech by government or government officials ○ Not okay if you say it while on the job, not much protection as government official ○ Pleasant Grove City v. Summun: court said that government gets to chose what monuments they put in public space ○ Garcetti v. Ceballo nly protected if the speech occurs as civilian not during their civic duties ● 1st amendment will OT PROTECT FROM PRIVATE ● Public and private forum: ○ Transitional public foru IGHEST level of right, areas that have historically been there for use of peopl overnment can set up rules to regulate/administrative (good if contentneutral) ■ Sometimes one place can be multiple type of forums ○ Designated public forum: can be used for public use with a sometimes public, other times it is not) → government property ○ Private property as public foru igh degree of public interactions so quazipublic, courts says that owners can have to allow it ■ Pruneyard Shopping case: eens actions don’t harm owner of shopping center so okay ○ Virtual forum: nonphysical example of government funding for expression okay as long as neutral oneybased forum ○ Laws of general application inimum review ● Compelled Speech: forcing someone to stand with something ○ “Life free or di ourt said that okay not to show slogan on license plate ○ Boston’s St. Patrick’s Day Parade: LGBT wanted to be part but organizers said no, court said that LGBT community could find other ways to show message because compelling organization to have to show representation of message they won’t support September 15, 2016 Speech Distinctions (P. 1) ● Free speech is not absolute hese exceptions show border of when okay and when it is not ● National Security: ○ Different to government in issues of national security ■ During time of conflict government may pass laws to limit speech (courts differ more) a. No tests for time instability or stability no declaration of war or clear beginning and end b. Unclear especially in was of terrorism because invisible enemy (not state) ○ Holder v. Humanitarian law project: ■ Material support: giving resources and money ■ Teaching terrorist group how to appeal to humanitarian law to show ideas ■ Nonviolent training b upreme Court said that providing support (of any type) will help them since saves them money ■ Can be turned down later a. Lines can shift: now PKK is an ally of government vs. ISIS so get money ○ U.S. Patriot Act: 2001 ■ Post911: give money power to law enforcement to look after terrorists, amendment 15 existing codes of criminal, wiretap and immigration ■ Sec 206: increase surveillance of electronic communication a. Might affect free speech because will be paranoid of what you say ■ Sec 215: relaxes oversight of search warrants a. ive government more latitude to get information b. Anyone involved in search warrant would have to keep it secret c. Companies didn’t have to expose what was happening ● Court says that national security and maintaining public order is biggest government interest ○ Has been more controlled over time ● Clear and present danger: WI Cold War ○ Schenck: antiwar activist pass out pamphlets to go against ormally wouldn’t be problem but during war then it goes against national int WWI) ■ You can’t shout “fire” in a theater ■ Based on context ■ Goes from obvious war to ideological war ○ Debs: convicted for saying “you are fit for something better…,” he said that it was political speech ■ Having political status actually made his remarks more dangerous ■ Antiwar effort ○ Abrams ○ Gitlow: socialists writing might led to revolt ○ Witney: embership in communist party, embership alone is not enough need more proof ○ Smith Act: okay to say government overthrown is not real proof ■ Just saying it is not enough ○ Clear and present is too broad and can be used for political activity and social change ● Brandenburg (or incitement) test: ○ Brandenburg wanted to take revenge against government but is speech the same thing as political conspiracy ○ Advocacy of illegal activity can be punished if: ■ Directed toward INCITING (let’s do something) ■ Immediate ( lets do something NOW) ■ ILLEGAL action ■ Likely to produce that action ● Offensive speech: speech that shoves senses ○ Cohen v. California: guy’s jacket was offens ourt said that Fword needed to convey emotion ■ Cursing could be needed for political speech to be effective ● Fighting words: language directed at individual ○ Chaplinsky v. News Hampshire: jehovah witness insult co ourt upheld by government saying that not important a. Context is important ○ Terminiello v. Chicago riest makes speech and makes crowd want to be aggressive, that is what words should do (cause emotion) ● Hate Speech: speech that is based on category of people (religion, race etc) ○ Usually unconstitutional because of strict scrutiny, only criminalize when tagged with action ○ R.A.V v. St. Paul: teens set cross on fire on African American’s front yard ■ Supreme Court said that law was too narrow and could be used to punish more ● Harmful Images: ○ U.S. v. Stevens: Stevens make videos of dog fighting which broke fed law prohibiting video of animal har ourt said that is okay because not doing action but showing (didn’t want new category) ● Intimidation and true threats: ○ Virginia v. Black: crossburning in multiple h ourt said okay because it is true threat (speech to cause fear of listener) ■ Different from teen case because different law, also a history of violence ○ Elonis v. U.S: shows murky lines in true threat, Elonis began to post explicit lyrics against wide who left him and scared wife ■ Complicated because of subjective vs objective intent (reasonable person) ■ Lower court said that reasonable person would see threat ■ Court said that needed to be subjective intent (actual state of mind to do crime) a. Objective = outsider, subjective = what he intended