Term
Schenck v. U.S. (1919)
(sedition & incitement) |
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Definition
Facts of the Case
● During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged, "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
Question
● Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?
Conclusion
● Decision: 9 votes for United States, 0 vote(s) against
● Legal provision: 1917 Espionage Act; US Const Amend 1
● Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished. |
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Term
Abrams v. U.S. (1919)
(sedition & incitement) |
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Definition
Facts of the Case
● The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed "revolutionists" denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison.
Question
● Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?
Conclusion
● No and no. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. The leaflets had a tendency to encourage war resistance and to curtail war production. Holmes and Brandeis dissented on narrow ground: the necessary intent had not been shown. These views were to become a classic libertarian pronouncement. |
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Term
Whitney v. California (1927)
(sedition & incitement) |
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Definition
Facts of the Case
Charlotte Anita Whitney, a member of the Communist Labor Party of California, was prosecuted under that state's Criminal Syndicalism Act. The Act prohibited advocating, teaching, or aiding the commission of a crime, including "terrorism as a means of accomplishing a change in industrial ownership. . .or effecting any political change."
Question
Did the Criminal Syndicalism Act violate the First or Fourteenth Amendments?
Conclusion
In a unanimous decision, the Court sustained Whitney's conviction and held that the Act did not violate the Constitution. The Court found that the Act violated neither the Due Process Clause nor the Equal Protection Clause, and that freedom of speech guaranteed by the First Amendment was not an absolute right. The Court argued "that a State. . .may punish those who abuse this freedom by utterances. . .tending to. . .endanger the foundations of organized government and threaten its overthrow by unlawful means" and was not open to question. The decision is most notable for the concurring opinion written by Justice Brandeis, in which he argued that only clear, present, and imminent threats of "serious evils" could justify suppression of speech. |
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Term
Brandenburg v. Ohio (1969)
(sedition & incitement) |
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Definition
Facts of the Case
● Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
Question
● Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?
Conclusion
● Decision: 8 votes for Brandenburg, 0 vote(s) against
● Legal provision: Amendment 1: Speech, Press, and Assembly
● The Court's Per Curium opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. |
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Term
Near v. Minnesota (1931)
(Prior Restraints) |
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Definition
● Facts of the Case
● Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.
● Question
● Does the Minnesota "gag law" violate the free press provision of the First Amendment?
● Conclusion
● The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. |
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Term
New York Times v. U.S. (Pentagon Papers Case) (1971)
(Prior Restraints) |
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Definition
● Facts of the Case
● In what became known as the "Pentagon Papers Case," 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. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.
● Question
● Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?
● Conclusion
● Decision: 6 votes for New York Times, 3 vote(s) against
● Legal provision: Amendment 1: Speech, Press, and Assembly
● Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. |
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Term
U.S. v. O'Brien (1968)
(Scrutiny: Intermediate vs. Strict) |
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Definition
Facts of the Case
● David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime.
Question
● Was the law an unconstitutional infringement of O'Brien's freedom of speech?
Conclusion
● Decision: 7 votes for United States, 1 vote(s) against
● Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts
● No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." |
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Term
Texas v. Johnson (1989)
(Scrutiny: Intermediate vs. Strict) |
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Definition
Facts of the Case
o In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
Question Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?
Conclusion
o Decision: 5 votes for Johnson, 4 vote(s) against
o Legal provision: Amendment 1: Speech, Press, and Assembly
o In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "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." |
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Term
Ward v. Rock Against Racism (1989)
(Scrutiny: Intermediate vs. Strict) |
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Definition
Facts of the Case
o New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock group claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression.
Question
o Does the New York ordinance substituting a city-employed technician and mixing board for a performer's mixer and equipment violate the First Amendment?
Conclusion
o Decision: 6 votes for Ward, 3 vote(s) against
o Legal provision: Amendment 1: Speech, Press, and Assembly
o No. The Court upheld the ordinance, giving broad deference to the government's interest in maintaining order. As long as "the means chosen are not substantially broader than necessary to achieve the government's interest," a regulation will not be invalidated because a court concludes that the government's interest "could be adequately served by some less-speech- restrictive alternative." |
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Term
Miller v. California (1973)
(Obscenity and Pornography) |
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Definition
Facts of the Case
o Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.
Question
o Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?
Conclusion
o Decision: 5 votes for Miller, 4 vote(s) against
o Legal provision: Amendment 1: Speech, Press, and Assembly
o In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "the basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision. |
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Term
U.S. v. Stevens (2010)
(Violent, Offensive and Harmful Speech) |
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Definition
Facts of the Case
● Robert Stevens was convicted under 18 U.S.C. Section 48 in a Pennsylvania federal district court for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." His conviction stems from an investigation into the selling of videos related to illegal dog fighting. Mr. Stevens appealed his conviction arguing that 18 U.S.C. Section 48, on its face, was unconstitutional because it violated the Free Speech Clause of the First Amendment
● The U.S. Court of Appeals for the Third Circuit agreed with Mr. Stevens and reversed his conviction, holding unconstitutional 18 U.S.C. Section 48. The court reasoned that the dog-fighting videos he sold were protected speech and that 18 U.S.C. Section 48 did not serve a compelling governmental interest.
Question
● Is 18 U.S.C. Section 48, on its face, unconstitutional under the Free Speech Clause of the First Amendment?
Conclusion
● Yes. The Supreme Court held that 18 U.S.C. § 48 is substantially overbroad, and therefore invalid under the First Amendment. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that depictions of animal cruelty are not categorically unprotected by the First Amendment. The Court further reasoned that because a "substantial number" of § 48's applications are unconstitutional, the law is overbroad and, thus, invalid.
● Justice Samuel A. Alito dissented. He disagreed with the majority opinion arguing that § 48 was not intended to suppress speech, but rather to "prevent horrific acts of animal cruelty." He was concerned that the majority holding will practically legalize the sale of such videos and spur the resumption of their production. |
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Term
Brown v. EMA (2011)
(Violent, Offensive and Harmful Speech) |
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Definition
● Snyder v. Phelps (2010)
Facts of the Case
● The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words."
Question
● Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?
Conclusion
● Decision: 8 votes for Phelps, 1 vote(s) against
● Legal provision: First Amendment
● Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." |
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Term
Snyder v. Phelps (2010)
(Violent, Offensive and Harmful Speech) |
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Definition
Facts of the Case
● The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words."
Question
● Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?
Conclusion
● Decision: 8 votes for Phelps, 1 vote(s) against
● Legal provision: First Amendment
● Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." |
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Term
New York Times v. Sullivan (1964)
(Libel) |
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Definition
Facts of the Case
● Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.
Question
● Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?
Conclusion
● Decision: 9 votes for New York Times, 0 vote(s) against
● Legal provision: Amendment 1: Speech, Press, and Assembly
● The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are
false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed. |
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Term
Gertz v. Robert Welch (1974)
(Libel) |
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Definition
Facts of the Case
Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz lost his libel suit because a lower court found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964).
Question
Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public figure?
Conclusion
Decision: 5 votes for Gertz, 4 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly
The Court reversed the lower court decision and held that Gertz's rights had been violated. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. However, continued Powell, the actual malice standard did not lose all significance in cases involving ordinary citizens as he advised states to use it in assessing claims for punitive damages by citizens suing for libel. |
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Term
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Definition
Legislature: Passes
Executive: carries out
Judicial: interprets |
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Term
• Sources of law: Who makes constitutional, common, statutory, administrative, and equity law? What are the differences of each?
Constitutional: |
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Definition
| created by founding fathers, Bill of rights: first 10 amendments of the U.S. constitution. In total 27 amendments, very hard to amend the constitution, it is a Living document- it is not to be taken literally, and can change with time. |
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Term
Common
• Sources of law: Who makes constitutional, common, statutory, administrative, and equity law? What are the differences of each? |
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Definition
| : created by judges. Unwritten law, written in judicial positions. Relied on custom and precedent, involves extension of legal doctrine that because presidential over time as more and more judges reach similar decisions and court decisions spell out their rational and that becomes the law. |
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Term
Statutory
• Sources of law: Who makes constitutional, common, statutory, administrative, and equity law? What are the differences of each? |
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Definition
| : written by the city, county, state, and fed legislative bodies, working to predict and prevent social problems. I.e. a criminal law is statute based. (Legislative bodies have prohibited things like murder, theft, ECT.) Passed by legislature. Statutes in media law have to do with copyright, broadcasting, and advertising. CODDIFICATION: written into a book, they have been codified. Statutory construction: courts construct the true meaning of statutes. |
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Term
Administrative
• Sources of law: Who makes constitutional, common, statutory, administrative, and equity law? What are the differences of each? |
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Definition
| : domain of the executive branch. Narrow and specific. Rules, regulations, orders, and decisions by federal or state agencies. (Rules of the FTC and FCC as it relates to advertising and broadcasting. Congress delegates agencies in the executive branch to interpret enable and implement statutory laws. |
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Term
Equity
• Sources of law: Who makes constitutional, common, statutory, administrative, and equity law? What are the differences of each? |
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Definition
| : created by judges i.e. child custody cases. A judge has to decide what is right to do. Apply general principles of ethics and fairness instead of legal rules. Court junctions and orders, i.e. restraining orders. |
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Definition
| issued by president, mayor, etc. in times of emergency. Limiting movement in protests, media in military affairs etc. |
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Term
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Definition
having the power to make laws : the country's supreme legislative body.
• of or relating to laws or the making of them : legislative proposals. Often contrasted with executive .
• of or relating to a legislature : legislative elections. |
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Term
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Definition
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Term
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Definition
| interprets these laws, and operates under a federal system of courts and state system (2 systems!) of courts in both systems we have different levels: |
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Definition
| federal level and state level: Federal courts interpret federal laws & state courts interpret state laws. |
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Term
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Definition
: Lower courts; generally where cases begin-original jurisdiction, whichever party loses has right to appeal- guilty or innocent- Jury
* Questions of fact: resolutions of factual disputes that are decided by a jury. |
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Term
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Definition
| loser has right to appeal at this court to the Supreme Court - A court to which a finding from a lower court may be appealed. – No jury/ team of judges- “was the law fairly applied?” |
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Term
| Federal courts ladder (low to high) |
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Definition
US District courts: trial courts
US court of appeals: cases cannot start here (11 geographic courts of appeals)
SCOTUS: some cases can go directly to Supreme Court through original jurisdiction |
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Term
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Definition
-State v. someone else, arrest, jury, grand trial, and sentencing.
Beyond reasonable doubt: the level of certainty required for a criminal conviction & the highest level of proof does not mean absolute certainty, but only a remote possibility of another reasonable explanation.
**Someone is accused of committing an act that is considered to be an offense to society as a whole- a crime such as murder, rape, or robbery. Crime against society not just an individual (civil)
**in a criminal trial a jury finds the criminal guilty beyond a reasonable doubt, not beyond ALL doubt. |
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Term
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Definition
: one party claims another party injured him or her individually, without necessarily doing something so bad that it is considered a crime against society as a whole.
o Plaintiff: person who brings a lawsuit
** Burden of proof: the party who has this burden must present evidence to support his or her claim
o Defendant: the person accused of the crime.
o Tortfeasor: the person who commits a wrong
** Prosecution must prove the guilt of the defendant beyond a reasonable doubt.
TORT**
**Civil cases are the preponderance of the evidence it is more likely than not that the person was guilty or liable, clear and convincing evidence is needed. Spectrum on which a plaintiff must establish the Burden of Proof. |
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Term
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Definition
| a civil wrong creating a right for a victim to sue a perpetrator. |
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Term
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Definition
how/when do courts accept/apply, modify, distinguish, and overturn precedent?
** Precedent: a case that other courts rely on when deciding future cases with similar facts or issues.
**The higher you move up the ladder the more precedential the case is. If SCOTUS issues a ruling lower courts must follow.
HOW & WHEN?
Apply: Stare decisis: let the law or decision stand, the policy of courts to rely on precedents
Modify:
Distinguishing a case: declining to follow a precedent based on the precedential case differing from the case being decided
Overturn/reversing/overruling: choosing not to follow precedent even if the facts of the case being decided are very similar. |
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Term
| What is judicial restraint? |
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Definition
| Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. It is sometimes regarded as the opposite of judicial activism. |
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Term
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Definition
Precedence applies. Rule the same way the previous decision did. Court can distinguish precedence (not like this case because…) can overturn precedence (very rare)
* 9 judges
-Chief justice & 8 associates
-Appointed by the president and approved by the senate.
-Sit for good behavior, life, and retirement
- All have different philosophies |
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Term
| Power of the Supreme Court is to determine the power and meaning of the constitution |
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Definition
• Can bar unconstitutional laws
• Judicial review
• Judicial restraint: not suppose to metal, but if laws violate the constitution they will strike them down |
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Term
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Definition
: appellate courts file a writ, and when it is granted the Supreme Court hears it.
When it is granted an oral argument takes place, and the justices vote, whoever is in the majority 5 or more they make written decisions and release the final decision in writing. |
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Term
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Definition
| : look at what the constitution meant in 1789, framers based on writing and situations would have acted this way. |
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Definition
| what the constitution says is what it means. Stick to the text |
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Term
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Definition
| our constitutional principles evolve and change over time, what we believe today may not have been what they believed in that time. Founding fathers got a lot of things right, but also got a lot of things wrong. (I.e. slavery) |
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Term
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Definition
| the order issued by the SCOTUS when it agrees to hear a case. |
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Term
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Definition
| court has decided to hear the appeal. |
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Term
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Definition
| Court has decided not to hear the case |
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Term
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Definition
| 4 of the 9 justices must vote to hear the case |
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Term
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Definition
| : press clause was separate from the speech clause and it is meant to protects us from the Gov. as a 4th branch of Gov. as a watchdog (additional check) Only organized private business that is given constitutional protection. If it meant no more than freedom of expression it would be a constitutional redundancy. Liberty of press essential to security of the state! |
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Term
| Focus: speech clause and Press clause. What does this mean? |
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Definition
Speech and press generally combines as “Freedom of expression”
➢ Speech= protects individual right to speak
➢ Press= protects institution or peoples right to publish |
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Term
| English and colonial roots of free speech and press principles |
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Definition
• 1st A was a result of centuries of censorship by English in the colonies. Official censorship of the printing press. Books were considered to be dangerous, challenged authority. Soon after dev. Of printing press it was required that printers had Gov. license to operate. Milton (Areopagitica) argued for liberty of unlicensed printing. Right to free expression. Written in opposition to licensing and
• Had published several pamphlets on right to get a divorce.
• -Books are not absolutely dead; they contain life because they hold part of the soul of the writer.
• - Ability of truth to win out over falsehood when they compete in a |
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Term
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Definition
| Let truth and falsehood grapple in a free and open encounter. BECAME A FOUNDATIONAL PRINCIPLE OF FREEDOM OF SPEECH |
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Term
| John lock social contract theory |
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Definition
| men are endowed with natural rights, life liberty and property ownership. Gov. should safe guard these rights, central was freedom of expression |
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Term
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Definition
| : 144 essays under the suto name Cato, originally published in England and later in colonial newspapers in American colonies in the 1700s passionate defenses of freedom of speech and expression. Became very influential when we decided to declare freedom & independence from Britain. |
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Term
| o Why was the John Peter Zenger libel case so important? |
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Definition
| Went on trial in 1735, he was accused of criticizing the Gov. of New York. The jury acquitted him and ruled that truth could be used as a defense to libel. Revolutionary case because it showed that a jury would side for publishers if what they published was true, even if the law stated that publishers could be punished for criticizing Gov. |
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Term
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Definition
| search for truth is an underlying value or theory of why we have freedom of speech in this country. The clash of ideas and the market place of ideas. The “truth” and the best idea will be revealed. |
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Term
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Definition
| unregulated Gov. cannot pick and choose what ideas are better (we pick the Gov.) i.e. decide what shows get more airtime |
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Term
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Definition
| : citizens are the sovereigns, we have the absolute right. (Alexander Michal John-freedom of expression is crucial to allowing citizens to be knowledgeable of government affairs) **Ban people from spending money during campaigns related to the self-governance theory, we have a right to participate as much as we want in political affairs. |
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Term
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Definition
: (self realization) we have the right to be who we want to be, expression is a right. Intrinsically part of our individual liberty.
**Right to view pornography: individual liberty (self realization) |
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Term
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Definition
| : idea that citizens have a right to be a watchdog. The 1st amendment allows us to do this. |
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Term
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Definition
| : we want to allow people to vent rather than create hostility through censoring them. |
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Term
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Definition
convicted under criminal syndicalism act for allegedly helping to establish the communist labor party in CA> Whitney was charged even when she stated that it was not her intention. The communist labor party was devoted to teaching the violent overthrowing of the Gov. (according to CA Gov.) did the criminal syndicalism act violate the 14th amendment, due process & equal protection clauses?
9-0 votes said it did not violate & upheld Whitney’s conviction. Reason it is still read today is due to Brandeis’s concurrence: greatest defense of freedom of speech.
Brandeis: talked about why we protect freedom of speech in multifaceted ways: in a couple of paragraphs encompasses all theories and values of the first amendment. |
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Term
| • Incorporation: The First Amendment applies to the state governments (Gitlow v. NY) – know what that means and why it is significant |
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Definition
**SCOTUS made a shift 14th amendment limits the power of states so that states must incorporate the 1st amendment. Gov. shall make can no law not just congress. If any state Gov. abridges free speech this can become a case against the state Gov. for violating the 1A
Congress and state government shall make no law. |
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Term
| • Sedition (what is it, how were laws punishing sedition treated by the courts historical, what case retroactively said such laws were unconstitutional? |
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Definition
Sedition: incitement of discontent or rebellion against the Gov.; any action especially in speech or writing promoting discontent or rebellion.
• Sedition is generally the harsh criticism of Gov. which was illegal until 1964 NY times v. Sullivan ruled unconstitutional. (The case that retroactively said such laws were unconstitutional.)
Sedition act: allowed for newspaper publishers to be arrested if they were harshly criticizing the Gov.
1798-1801 allies of president john Adams arrested and jailed newspapers editors
Thomas Jefferson reputed these jailing’s
Dangerous precedence. |
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Term
| • Bad tendency and clear and present tests (Schenck, Abrams and Whitney) |
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Definition
* Schenck: Holmes opinion: clear and present danger; “character of every act depends on the circumstances”
* Abrams: Holmes and Brandeis dissent Bad tendency test.
* Whitney: Brandeis used clear and present danger test to convict Whitney. Made distinction between discussion of advocacy of violence (ok) and actual advocacy of violence (not ok) i.e. KKK |
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Term
• Brandenburg’s three-prong incitement test
Decided in 1969, Test: to be punishable speech must be: |
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Definition
1) Directed to inciting or producing
2) Imminent lawless action
3) And is likely to incite or produce such action |
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Term
| • “Teaching function” speech – how do the courts assess what is “abstract advocacy” and “incitement”? |
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Definition
Incitement is when the intent of the speaker is likely to cause illegal activity.
abstract advocacy: ie kkk speach |
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Term
| • What’s a true threat? (Has to single out a person for harm) |
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Definition
| *True threat: must be directed at a specific person. I.e. the Planned Parenthood v. American collation of life case. Doctor was posted on extreme anti abortion website. His address was posted & he was killed. |
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Term
| • Prior restraints: What are they? When might they be appropriate based on the key precedents of Near v. Minnesota and the Pentagon Papers case? |
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Definition
Prior restraints: a government action that is sweeping in scope involves government agents in the review of speech or press & stops the dissemination of ideas before it occurs.
➢ Prior restraints are generally unconstitutional; they are only ok on 3 occasions
1) Publishing troop movements during war time
2) Obscenities
3) Incitements to acts of violence and the over throw by force of Gov. |
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Term
| o Near v. Minnesota and New York Times v. U.S. cases - What were the lower court rulings in the case? Who sued to stop publication? Why did the courts reject the prior restraints sought? |
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Definition
Lower court rulings Near V. Minnesota: Minnesota State Law was upheld that prevented Near from ever publishing again: Minnesota Sued. SCOTUS rejects: Goal is suppression not punishment. Censorship is a greater evil than harm to public officials.
New York Times V. US: Lower courts divide: DC circuit allows and NY says no! –Nixon administration sued. Gov. did not prove that publication would endanger national security enough to justify prior restraint on the newspapers. |
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Term
| • How did the district judge in the Progressive case apply Near and Pentagon Papers to the facts? |
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Definition
| ** Clash between vital security interest and competing prior restraints doctrine on publications. |
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Term
| • Based on what rationale/logic did the Colorado Supreme Court uphold the prior restraint against the press in the Kobe Bryant case? |
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Definition
** New test used
1) Must serve the governments highest order,
2) The narrowest possible order to protect that interest
3) Is “necessary to protect against an evil that is great and certain” |
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Term
| • Unprotected vs. protected speech |
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Definition
| Unprotected Speech: is of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. |
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Term
| • Categories of unprotected speech: what are the major categories of unprotected speech? |
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Definition
• Fighting words
• Obscenity
• Libel
• True threats
• Incitement
• False advertising
• Disruptive speech in schools
• Speech identified as illegal conduct: Perjury, blackmail, and extortion. |
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Term
| o Chaplinsky and fight words case set forth principles of unprotected categories |
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Definition
Chaplinsky called official a damned fascist. And got into a fight. NH law said that no person should address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place.
• Conviction was upheld: fighting words: words by which their very utterance incite injury or tend to incite an immediate breach of the peace. ** Automatically inflicts emotional harm or triggers violence. |
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Term
• Expressive conduct
o Why was flag burning considered to be “expressive conduct” and not just conduct? (Texas v. Johnson?) How was strict scrutiny applied to strike down the flag burning statute in the case? |
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Definition
• CONDUCT: is often the form of symbolic expression. Some conduct cannot be punished because it is intertwined with protected expression.
• Strict scrutiny was applies: burning of flag=very critical of Gov. in an emotional way=Protected
• 1 thing deemed offensive to one person cannot be deemed offensive to everyone. |
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Term
| o O’Brien case (1968)– sets forth intermediate scrutiny test (“O’Brien test”) - What were the facts and how did the court treat O’Brien’s claim of expressive conduct? |
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Definition
*Main reason he was convicted is because of the selective service act: that stated you could not alter it.
➢ The court developed a test for intermediate scrutiny for symbolic speech acts – that is, acts that have communicative power.
➢ USE OF THE OBRIEN TEST: The reason the conviction was upheld is because 1) it was written in the power of the Gov. to make a draft 2) the draft card served an important Gov. interest 3) it does not effect expression 4) there are a whole lot of other things he could have done to protest. It does limit one form of protest, but there are thousands of other ways he can protest.
The Obrien test: to be constitutional under intermediate scrutiny, a law must:
1) Fall within the power of Gov.
2) Advance an important or substantial government interest
3) Be unrelated to the suppression of speech
4) Be narrowly tailored to impose only an incidental burden on the First Amendment freedoms. |
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Term
• Content-based vs. content-neutral laws: What is the difference between the two? How do the courts decide if a law is content-based?
o Content Based |
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Definition
: regulates expression because of it’s content (hate speech, fighting words, etc.…require strict scrutiny.
• Targets subject matter or ideas expressed
• Presumably unconstitutional
• Must pass strict scrutiny
• Cases: Texas v. Johnson & Son of Sam Laws (laws aimed at recouping profits jailed inmates can make by retelling stories.
o |
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Term
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Definition
regulates any expression the same. Regardless of it’s content (time/place/manner regulations, noise regulations, etc.); requires ordinary (or relaxed) scrutiny.
• Intermediate scrutiny
• Time/place/manner regulations
• Cases: O’Brien
**Not targeted at content but the method by which it is being expressed …ie. RAR and the amplification of sound. |
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Term
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Definition
| : law must be necessary, and use all the least restrictive means to advance a compelling gov’t interest. Laws restricting speech in public forums, laws restricting speech based on viewpoint, some laws restricting speech based on content. |
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Term
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Definition
| law must advance important or substantial government interest, be unrelated to suppression of speech, and can be narrowly tailored. Laws restricting speech that are content neutral, laws restricting speech that is sexually explicit but not obscene. |
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Term
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Definition
| is there a good, decent, rational reason for this law? School regulations concerning curricular activities, restrictions on “unprotected speech” such as obscenity. |
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Term
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Definition
| In constitutional law, a method for determining the constitutionality of a statute that restricts the practice of a fundamental right or distinguishes between people due to a suspect classification. In order for the statute to be valid, there must be a compelling governmental interest that can be furthered only by the law in question. Also called compelling governmental interest test and, in the case of a state statute, the compelling state interest test. |
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Term
| **Least restrictive means: |
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Definition
| The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. If the government enacts a law that restricts a fundamental personal liberty, it must employ the least restrictive measures possible to achieve its goal. |
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Term
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Definition
| regulating too much protected speech in regulating unprotected speech; laws must be written so as to not prescribe protected speech. Law punishes too much protective speech. (eznovick v. Jacksonville: no nudity at drive in theaters) |
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Term
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Definition
| : unclear or subject to several interpretations by reasonable individuals; laws that are often overturned on that basis. Must be narrowly tailored! What is prohibited is unsure. (Coats v. Cincinnati: courts struck down law that made it illegal for 3 or more persons to assemble on any of the sidewalks & be annoying to people walking by. |
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Term
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Definition
| Vague, overbroad, content-based |
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Term
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Definition
| Specific, narrowly tailored, content neutral |
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Term
• Public forums: How are they defined, and what First Amendment protections apply there?
o Non-public forums:
o Limited designated public forums:
o Traditional public forums:
• ACESS TO PUBLIC FORUMS: |
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Definition
• Example of a public forum case: Ward v. RAR & bandshell (public forum)
• ACESS TO PUBLIC FORUMS: allowed to have 1st amendment activities under regulation of time/place/ manner.
➢ Public Forums
o Traditional public forums: places used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. I.e. parks, streets, and sidewalks
o Limited designated public forums: a place that is sometimes, sometimes not, a public forum
o Non-public forums: military bases, prisons, and post office walkways. |
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Term
• Time/place/manner restrictions (content-neutral laws)
o How did the court apply the time/place/manner standards in Ward v. Rock Against Racism? |
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Definition
• These are content neutral laws that regulate non-speech elements.
• Examples of OK laws are banning loud speakers, no sleeping in parks, no soliciting in public buildings, and requiring parade permits.
• These regulations are generally permissible; they regulate the speech, not content & regulate the “content” regardless of the content.
➢ In Ward V. RAR > the court applied time place and manner regulations by enforcing a sound level at the Bandshell to respect sheep meadows and central park west. |
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Term
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Definition
| FEAR, the effect of discouraging people from engaging in protected speech out of fear that they might be subject to prosecution. |
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Term
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Definition
| : laws aimed at “secondary effects” and not primarily at suppression of content (i.e. adult bookstores> bring prostitutes & drug activity. They are not banning the bookstore, just the secondary effects of the bookstore. |
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Term
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Definition
| : effects that occur when laws limit rights as a consequence of a more general prohibition. I.e. people cannot burn draft cards. |
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Term
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Definition
| Rights of an orderly speaker are favored over the interests of an offended audience member. The easiest offended burden dictates what can and cant be said. |
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Term
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Definition
| Court is sympathetic when the audience is forced to hear offensive speech. I.e. a school & students rights. Speaker’s rights v. listeners rights. |
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Term
| • Miller v. California: know the three prongs of the obscenity test and how they are applied |
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Definition
Jury decides these three prongs.
• The Miller Test (only hard core sexual punishment was too be punishable)
1) The average person, applying contemporary community standards, would find work, taken as a whole, appeals to the prurient interest.
2) The work depicts or describes, In a patently offensive way, sexual conduct defined by applicable state law
3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller was convicted under California Law for mass mailing ads for sexually explicit materials
Forum shopping: brought prosecutions to LA pornographers and tried them in conservative areas of the country. |
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Term
| o How does the majority explain why obscenity is not protected by the First Amendment? |
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Definition
Reaffirmed Roth holding, obscenity gets no 1A protection (Miller v. California)
• Chaplinsky definition for unprotected categories of speech. Obscenity is one of the categories of unprotected speech that stems from this definition. |
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Term
| o Who decides whether something is obscene or not? |
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Definition
SCOTUS: Justice Brenan wrote first definition. (If work has any value that is enough to save it.)
• Applied national standards on saying what is obscene or not
• (Stewart) Justices say they cant define what obscenity is they just say they know it when they see it. |
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Term
| o Why is nude dancing “expressive conduct” that gets First Amendment protections? |
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Definition
• Nude dancing has some minimal 1A protection.
• Court affirms the right to ban public nudity to combat “secondary effects”
• Strippers must wear G-strings and pasties: divided court said it was constitutional.
• Nude dancing has some minimal 1 A protection, but based on secondary effects Gov. has ample power to regulate the business even though some of the regulations are aimed at expression |
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Term
| o What did the 7th circuit say about the status of pornographic expression in Hudnut? Is there social value to pornography? |
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Definition
Overturned Indianapolis ordinance & said that you cant say that legal non obscene porn can give rise to a crime.
• Really details the compelling arguments of the feminists and the contrary arguments of the power of porn as speech. |
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Term
| • Pornography and the Internet: holding and significance of Reno v. ACLU |
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Definition
Supreme court said that the internet gets full 1 A protection.
The indecency act was overbroad.
Justice Stevens: CDA effectively suppresses a large amount of speech that adults have the right to watch and listen
You can’t regulate the internet so that it is a child’s sand box.
Hugely important to establishing the freedom of the internet. |
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Term
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Definition
| meets the miller test & receives no 1A at all. |
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Term
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Definition
| is not obscene and it does receive 1A protection, so what is the difference between obscenity and photography |
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Term
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Definition
| : lower standard of protection for broadcast media |
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Term
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Definition
| no 1A protection, entirely separate from obscenity & pornography because of the emotional harm it inflicts on children |
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Term
• Brown v. EMA: struck down CA statute that regulated sale of violent video games to minors. SCOTUS overturned
o How is violence like and dislike obscenity, from a legal standpoint?
o How does the Court apply strict scrutiny analysis in its decision?
o Why does the Court characterize the law as a content-based law? |
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Definition
o How is violence like and dislike obscenity, from a legal standpoint?
Obscenity is an unprotected category of speech, violence looks at both the conduct and potential harms that violence and the media may cause to people. Violent speech is not obscenity and there is no interest in creating a new category of unprotected speech
o How does the Court apply strict scrutiny analysis in its decision?
It is a content-based restriction
o Why does the Court characterize the law as a content-based law?
No compelling Gov. interest, not the least restrictive means, under inclusive (only targeted violent videogames & over inclusive (prohibited parents from making decisions themselves.) |
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Term
• Snyder v. Phelps (2010)
o Why did the Courts strike down the jury’s verdict in this case? What were the rationales?
-TORT Intentional Infliction of Emotional Distress?
o Why was it important that the speech at issue was on a matter of public concern? |
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Definition
Why did the Courts strike down the jury’s verdict in this case? What were the rationales?
-The issue was whether 1A protects protesters at a funeral from IIED. Jury sides with Snyder and Phelps appeals. SCOTUS upholds 4th circuit, which sided with Phelps. The q of whether the speech is public or private. Speech concerning public affairs is important.
TORT Intentional Infliction of Emotional Distress: has First Amendment limitations based on the Hustler v. Falwell precedent
o Why was it important that the speech at issue was on a matter of public concern?
It was in a public place so it is entitled to special protection. Gov. cannot prohibit idea because society finds it offensive or disagreeable. |
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Term
• U.S. v. Stevens (2010)
o What was the Supreme Court’s decision and rationale?
o How was the law overbroad? |
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Definition
o What was the Supreme Court’s decision and rationale?
Struck down federal statute that made it a crime to distribute for commercial purposes videos depicting animal cruelty. Content based restriction on speech. The law creates a criminal prohibition of alarming breadth.
o How was the law overbroad?
Punished too much protected speech. I.e. hunting videos could even be prohibited under this law. * Not narrowly tailored. |
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Term
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Definition
| defamation, identification, publication, falsity, fault, damages |
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Term
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Definition
| communication that tends to injure someone’s reputation |
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Term
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Definition
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Term
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Definition
| : journalistic malpractice & sloppiness and mistakes |
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Term
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Definition
| : worse; knowingly publishing falsehoods or acting with reckless disregard (Harder to prove) |
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Term
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Definition
| : whenever a wrong occurs, its perpetrator is held responsible, no matter whose fault it really was. (Easy to prove) |
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Term
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Definition
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Term
| • Who has the burden of proof in libel cases? |
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Definition
The Plaintiff:
They must prove the 6 elements of libel 1) defamation, 2) identification 3) publications 4) falsity 5) fault 6) damages |
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Term
• Types of Plaintiffs and different levels of fault: Public officials, public figures (all purpose, limited), private people: what are the general standards courts use to determine status and why it matters
** Public v. private Plaintiffs
➢ Public officials:
➢ All purpose public figures:
➢ Limited purpose public figures:
➢ Private people: |
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Definition
** Public v. private Plaintiffs: public figures/officials have a much harder time proving their cases because of different standards of fault. If it is said about a public figure, it is public concern, and actual malice must be proven, If it is a private person & public concern, for $ damages negligence must be proven, for other damages actual malice must be prove. The Gov. cannot sue at all for libel. If it is a private person and a private concern, negligence is enough with strict scrutiny applied. Public officials: elected officials or people via substantial responsibility over Gov., affairs
➢ All purpose public figures: have persuasive power and influence
➢ Limited purpose public figures: a public controversy must exist before the publication of the allegedly libelous statement* the plaintiff must have in some way participated voluntarily in trying to resolve this controversy * the plaintiffs participation actively sought to influence public opinion regarding the controversy
➢ Private people: prominent socialite not public figure because of media coverage of divorce * Gov. employed researcher does not become a public figure by applying for and receiving a research grant that becomes controversial.
* Lawyer representing client in Gertz case |
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Term
| • Who has the burden of proof in libel cases? |
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Definition
The Plaintiff:
They must prove the 6 elements of libel 1) defamation, 2) identification 3) publications 4) falsity 5) fault 6) damages |
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Term
• Types of Plaintiffs and different levels of fault: Public officials, public figures (all purpose, limited), private people: what are the general standards courts use to determine status and why it matters
** Public v. private Plaintiffs
➢ Public officials:
➢ All purpose public figures:
➢ Limited purpose public figures:
➢ Private people: |
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Definition
** Public v. private Plaintiffs: public figures/officials have a much harder time proving their cases because of different standards of fault. If it is said about a public figure, it is public concern, and actual malice must be proven, If it is a private person & public concern, for $ damages negligence must be proven, for other damages actual malice must be prove. The Gov. cannot sue at all for libel. If it is a private person and a private concern, negligence is enough with strict scrutiny applied. Public officials: elected officials or people via substantial responsibility over Gov., affairs
➢ All purpose public figures: have persuasive power and influence
➢ Limited purpose public figures: a public controversy must exist before the publication of the allegedly libelous statement* the plaintiff must have in some way participated voluntarily in trying to resolve this controversy * the plaintiffs participation actively sought to influence public opinion regarding the controversy
➢ Private people: prominent socialite not public figure because of media coverage of divorce * Gov. employed researcher does not become a public figure by applying for and receiving a research grant that becomes controversial.
* Lawyer representing client in Gertz case |
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Term
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Definition
Failure to have acted as a hypothetical reasonable person would have acted under the same circumstances regardless of state of mind or intent.
+ Is there discrepancy
+Did the journalist try to contact
+Did the journalist get all the information she could have
+Did the journalist double check the facts
+Did the reporter make a good faith effort to determine the truth or falsity in the matter
**Use of retraction for publishing false material
** Refer to public v. private people chart. |
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Term
| o What are some of the ways to prove actual malice? (Knowing falsity or reckless disregard of truth.) |
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Definition
• Direct evidence from the defendant about thoughts regarding truth/falsity
• Discussions with others during preparation of defamatory material
• Circumstantial evidence
• Knowledge of falsity: lie; high degree of awareness of probable falsity of the material when it was published.
• Reckless disregard: sufficient evidence t o permit the conclusion that the defendant in fact entertained serious doubts as to truth of publication
Plaintiff must prove actual malice
-Punitive damages require proof of actual malice at all levels. |
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Term
• What standard of fault are required for what types of damages (and for what kinds of plaintiffs)?
2 types |
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Definition
• Any plaintiff must prove some damages to win (no damages/no case)
• Varies based on award sought & whether it is a public or private plaintiff
o Punitive damages: require proof of actual malice @ all levels
2 categories of damages
1) Actual/Compensatory
*Loss of reputation, shame, mortification, and hurt feelings
*Comp a person for actual loss: poverty, business trade,
2) Punitive
* Damages which may be in the discretion of the court or jury be recovered for the sake of example and by way of punishing the defendant |
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Term
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Definition
| : usually an absolute defense, not a defense to print out (not a defense to print out an accurate account of what someone else said falsely unless it involves Gov. notes.) Plaintiff must prove falsity |
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Term
| • Fair Comment & criticism |
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Definition
| : pure Opinion or based on true facts and not published with malice. |
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Term
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Definition
| truthful coverage of Gov. proceedings or documents |
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Term
| • How do courts decide whether a statement in the libel lawsuit is considered a fact vs. opinion? |
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Definition
Why is this important? (Milkovich and Ollman cases)
Ollman test
1) Verifiability: can statement be proven either true or false?
2) Common meaning: what is common usage or meaning of words?
3) Journalistic context: what is the linguistic context in which the statement is made?
4) Social context: what is the broader social context into which the statement fits?
**If something can be proved, probably not protected as an opinion. |
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Term
| • Under CA law, what legal incentive is there for news organizations to run corrections for errors? |
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Definition
| +Possibility of negligence |
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Term
| • What is the statute of limitations for libel lawsuits in CA? |
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Definition
| **1 year: if libel action is not filed within set time period, statute runs and the claim cannot proceed. Varies by state CA = 1 year. |
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Term
• Major Cases (Sullivan and Gertz): Know basic facts, legal issues, and how the case changed libel law
o Gertz v. Robert Welch |
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Definition
• Elmer Gertz, high profile Chicago attorney determined by court to be private person prosecuting for family of youth shot by police officer.
• American opinion article claimed Gertz was in conspiracy to undermine law enforcement for communist take over of U.S.; Gertz sued
• Court said very public was private person in this case: just lawyer serving his client.
• Backed off from Rosenbloom: private people, even in public events, must prove negligence to win damages.
Four important holdings in Gertz
1) No liability without fault: at least negligence must be shown for plaintiff to win. (Jury must be able to find that publication was at least negligent
2) Plaintiff of either public or private status must prove actual malice to receive punitive damages. (No big money unless actual malice is shown).
3) Jury awards restricted to actual damages for demonstrated injury (jury cant feel sorry for plaintiff and award more money for an injury than was demonstrated.
4) There is no such thing as a false idea; no punishment for expression of opinion-but this was in dicta; limited in Milkovich we know now that only pure opinion is protected; if opinion is based on fact or implied fact its not protected as an opinion. |
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Term
| New York Times v. Sullivan |
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Definition
• Ad ran in NY times, basic thrust was to criticize local Gov. officials. In Alabama and their treatment to African Americans. There were some minor factual errors
• They did not name Sullivan at all they only referred to police officials
• Won at a jury level and verdict was upheld by Alabama supreme court
• SCOTUS overturned ALSC decision
• Burden of proof now set at actual malice
• After Sullivan libel was considered a constitutional question with 1A protection. And the burden of proof shifted to the plaintiff. Defendant need not prove anything
• MAJOR IMPLICATIONS:
o Established actual malice standard for public officials
o Shifted burden of proof to plaintiff
o Made libel a 1A question
o Emphasized the importance of open debate about public officials Brennan” Debate on public issues should be uninhibited, robust, and wide open” |
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Term
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Definition
what are they aimed for? How do they work?
*Plaintiff must show probability of valid case; if dismissed must pay defendants cost
*If it is a valid case defendant must pay plaintiff’s cost in opposing dismissal if case is allowed to proceed.
*STRATIGIC LAWSUITS AGAINST PUBLIC PARTICIPATION. |
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Term
| • Online libel issues: ISP immunity from Section 230 of CDA: know the basics, know the definition of ISP vs. “publisher” and why that’s important |
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Definition
o Immunizes websites from being sued for content they did not create
o No website can be sued for something one of it’s users publishes. |
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