·         system of rules of conduct for individuals and institutions with punishment for those who violate those rules

1-Constitution

2-Federal law

3-Rules and regulations / administrative law

4-court cases

5-executive order

6-common law

law enacted by a legislature (legislative law), or passed by Congress and signed by the president

unwritten law based on tradition or precedent

·         let it stand, in order to change something, you need good reasoning

-encourages consistent, predictable application of law

·         sharing of power, i.e. b/t fed and state

 supremacy clause

o   States are bound by congressional statuteso   State/local law that contradicts fed law is invalid unless courts make ruling

 Independent judiciary

o   Separate from other gov’t branches

o   Independent  of public opinion b/c they are not elected

o   Appointed by president, approved by congress, served for life

o   Can only be removed by impeachment

Creation of laws

subcommitteeàfull committeeàhouse

·         dealing with a wrongdoing b/t 2 private parties

o   i.e. libel, privacy

o   inadvertent negligence

o   denial to hear, doesn’t mean they agree with the first decision

John Zenger

o   1730s-publised an unfavorable report of governor of NY, governor takes him to court

§  Andrew Hamilton-argues it’s the truth, thus it’s not libel

§  Jury rules against the law (jury nullification), in favor of Zenger

First free speech precedent

-established the right to criticize gov't as long as the accusations are true

US v. O’Brien

o   Dealing w/ nat’l security

o   Overturned the lower court

o   Protest wasn’t illegal, but burning card was

o   O’Brien test

·         nearly absolute protection of speech

 Alien and Sedition Act

o   Late 18^th century

o   Made criticism of gov’t/gov’t officials illegal

 Time, place, manner

O'Brien Test

1.  Content must be neutral

            2.  gotta leave a door open, an alternative

            3.  gov’t must have substantial interest in the case

            4.  rules must be narrowly tailored

 Schenck v. US-1919

§  Sedition rules

§  Schenck-head of Phil communist party

§  Printed out pamphlets to encourage people to avoid the draft

§  Law said it’s illegal to disrupt military

§  “clear and present danger”-go to jail

 Gitlow v. NY-1925

§  Gitlow-socialist

-upheld conviction b/c it endangered the government

-however it established incorporation-14th amendment regarding due process applied to states, thus protecting first amendment rights

 Near v. Minn-1931

§  1^st sc decision dealing with freedom of press

§  Near, editor of Sat press, was criticizing gov’t officials about bootlegging and gambling

-State banning of paper is unconstitutional

-State law was essence of censorship

-prior restraint is the least tolerable form of government intervention in the speech marketplace 

 Brandenburg v. OH, 1969

§ last sedition case

Overturned KKK leader’s conviction

§  Difference b/t criticism and speech that presents inaminant danger

§  4 points: gov’t has to prove all 4 to convict incitement

·         The intent of the speaker is to induce incitement

·         Very little time b/t speech/article and action

·         The conduct of the call is illegal

·         There is a high probability that the illegal action will happen

 NY Times v. US

§  Gov’t didn’t have burden of proof of nat’l security

·         What a libel plaintiff must demonstrate to win

1.      The info in question must be an assertion of fact, ex:  she’s a slut, NOT I’ve heard she’s a slut

2.      Published

3.      If it concerned the plaintiff

4.      Defamatory-not positive

5.      False

6.      Defendant was at fault

  terms that are negative no matter the context

a.       what most cases are, matters what the context is 

-libel per quod

o   Picture caption in nat’l inquire

o   “it” could mean murder or perjury

o   Meaning of the term depends on what the average readers thinks it is

The speech act

o   Makes foreign libel judgments unenforceable here unless they match the first amendment

o   Protect Americans from different libel laws in other countries

·         NY Times v. Sullivan

o   Malice-had to knowingly publish something that was false

o   Takes away seditious libel, libel against public official

o   Curtis Publishing v. Butts

o   AP v.  Walker

o   Together defined who is covered under Times v. Sullivan

o  broadened times v. sullivan to mean pub figs

§  someone who occupies a position of power or influence, i.e. fame, typically include movie stars, athletes

§  somebody who has been involved in a public controversy and their participation tried to influence public opinion

·         when plaintiff (media) tries to pull a defendant into public controversy

 Jewell v. Cox

o   Made him a limited purpose public official

o   Atl papers made comments about accusation

o   Jewell sued

o   Out of court

o   Not legal precedent

 Malice

o   If you get sued for malice, courts can look at your docs, violation of 1^st amendment, chilling effect

o   Flipside-how else are you going to prove it?

 Curtis Publishing v. Butts

§  Saturday evening post

§  1964-published an article that accused two coaches (one is Butts) of fixing a game b/t Bama and GTech

§  No one at the magazine talked to either coach

§  Story based on someone overhearing something during a phone call

§  Gross negligence, Butts won

 Negligence

§  Careless editing

§  Misreading

§  Didn’t check sources

Pro-curium 

Factors that determine the freedom of a specific medium

·         The capacity of a medium to carry messages

·         Relationship between medium and government

·         Pervasiveness

·         Accessibility by children

Ad hoc balancing

·         Making decisions according to the specific facts of the case under review rather than more general principles

Categorical balancing

·         A judge’s or court’s practice of developing rules by weighing different broad categories, such as political speech, against other categories of interests, such as privacy. The rules may be applied in later cases with similar facts.

o   Judge looks beyond the speech itself to consider the particular circumstances and the extent of harm caused to determine whether the expression falls into a punishable category.

 v

Chaplinsky v. New Hampshire

·         The court did not fully develop different “narrow” categories of speech – what would fall under free speech and what wouldn’t etc.

o   Later – political speech has full constitutional protection

o   Seditious speech, fighting words, obscenity and defamation are not protected.

Seditious libel (sedition) 

·         Communication meant to incite people to change the government; criticism of the government

o   Criticizing government or officials

§  John Peter Zenger

Gertz v. Welch 

·         Anybody whether in the public eye or not, public official or not, had to prove that the media were at fault.

·         John Birch Society – conservative group

o   Run by Robert Welch

·         Claimed Gertz was a communist, had a police record, tried to frame a local policeman

o   Court determined Gertz was not a public figure,

§  He would have to show gross negligence on the part of the Birch magazine if he wanted to collect punitive damages. 

-black armbands protesting Vietnam, they were suspended

-fear of potential disruption was not enough reason to infringe on students' right of expression

-Tinker test-right of schools to limit 1st amendment rights of students

-using sexual metaphors in speech for student govt

-suspended

-words threatened the values and purpose of the school at a school sponsored event

-"Bong Hits 2 Jesus" banner

-sign threatened and disobeyed school's anti-drug policy and therefore put school and policy in danger

-principal moved two stories from school newspapers about divorced parents and supreme court

-ruled that advisers that oversaw the production of the student newspaper had the right to make decisions about the content

established specific and "special environments", such as pub hs, may limit the range to which we can exercise freedom of speech

-students can be restricted based on their speech's effect on school environment and students

-limit 1st amendment rights of students

-veggie laws

-post-production editing

-court reaffirmed the legal precedent that opinion is protected by 1st amendment as long as the opinion has factual basis

-case declared that production companies could not be held liable when they edited their broadcasts to leave some segments in and out

 Jewell v. Cox

media is sued by someone and after the fact pulls that individual into some sort of public controversy in order to change their status (illegal)

– usually used to make the media or people stop talking/ being critical

Threats to take libel action

Defendants win 90% of the time

Rising trend in the use of SLAPP suits as a took of corporations

Rising unhappiness with the media lately 

media that is covering an official public proceeding (town hall meeting, senate vote, etc.)

People have a right to know about the proceeding (as long as its covered truthfully)

Senators’ comments on the senate floor is absolutely privileged

Libel suits cannot be brought for fair and accurate reports about official public proceedings

Congressman is immune on Senate floor (NOT outside)

includes state legislation

petitions to official body (municipal, state, fed)

court proceedings

-article that is talking ABOUT an official proceeding – expressing reactions, concerns, opinions

stories must be balanced

-protection only applies when talking about proceeding specifically

Milkovich v. Lorain Journal (1974)

Lorain Journal said Coach Milkovich lied at a hearing

Milkovich appealed 3 times à won libel suit

Court Decision = NOT clear cut

Question = whether the Journal was reporting fact or opinion

Ollman v. Evans (1985)

-Concerned potential PSC academic chair at UMD à offer was revoked

-Gives us a test of OPINION

CONTEXT à The Ollman Test

-Can a statement be proved true or false

-What is the common ordinary meaning of the word at issue

-Journalistic context of what was said

-What is the social context of the remarks

Political debate, protest

-argues that when someone is in the public light, they automatically run the risk of comment about their profession (CONTEXT always critical) **Applies best with reviews & critiques (but not limited to)

-If a critic goes beyond personal comment about the profession, book, restaurant, etc. à that is not fair comment

-Does the comment focus on the public interest?

Ex. Information that may persuade/dissuade attending a concert

Media will not get into trouble if the following is true…

-Story is newsworthy (of interest to the public)

-The accusation, criticism, negative comment is made by a responsible group or medium

-Negative comment is made about a pubic official, figure or organization

-The story is accurate

-Tone of story is NEUTRAL

-petition a judge to issue a judgment based on the facts presented to him or her

-¾ of media requests for summary judgments are given

-B/c there isn’t enough evidence, public figure, etc.

losses you can prove

Idea is to reimburse the plaintiff

Usually smaller amount of money

designed as a deterrent, to send a message

Much larger $ amounts

Encourage being responsible