Term
| Why is it important to study media law? (3) |
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Definition
- Laws change, sometimes overnight
- Situations change from outcomes of a legal case
- Laws differ from state to state |
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Term
| Where do laws come from? (6) |
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Definition
| 6 sources - US Constitution & State Constitutions, statutes, administrative agencies, executive branch, common law, law of equity |
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Term
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Definition
(+) to ensure freedom (Bill of Rights) limits government control of over our lives
(-) to provide stability, order, and security by controlling and punishing certain behavior |
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Term
| What are the sources of our laws? (3) |
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Definition
| statutes, administrative law, common law |
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Term
| How are courts structured? |
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Definition
State - 1. trial court (district/circuit courts) 2. appellate court 3. supreme court
Deals with privacy torts, libel, cameras
Federal - 1. US district court 2. court of appeals 3. US supreme court
Deals with broadcast, cable, copyright, patents
BOTH deal with trademark, corporate speech, advertising regulations, anti-trust law, obscenity |
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Term
| What is the difference between federal and state systems? |
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Definition
Jurisdiction - territory (state laws start in state court), federal laws go to federal court
Subject matter - if state law violates US Constitution, you can start in federal
Federal court interprets constitution, takes cases between citizens of different states |
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Term
| What is the difference between trial and appellate courts? |
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Definition
Trial - all cases begin here, only place where juries involved
Appellate - ensure lower courts used proper procedure, heard by panel of 3 judges |
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Term
| What is jurisdiction, why is it important? |
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Definition
| Jurisdiction limits authority of a court. Court has jurisdiction over subject matter when constitutions or states give it the power to decided cases relating to the subject. |
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Term
| Federal jurisdiction over media (4) |
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Definition
| broadcast, cable, copyright, patents |
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Term
| Shared jurisdiction over media between federal and state (5) |
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Definition
| trademark, corporate speech, advertising regulations, anti-trust law, obscenity |
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Term
| State jurisdiction over media (3) |
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Definition
| privacy torts, libel, access to meeting records (cameras) |
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Term
| What is the difference between civil and criminal cases? |
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Definition
Criminal - government enforcing criminal statutes (jail or fine)
Civil - disputes between citizens ($) |
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Term
| How do cases proceed through criminal justice system? (6) |
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Definition
1. Investigation
2. Arrest
3. Preliminary hearing (determine if probable cause, bail set)
4. Indictment (formal accusation by grand jury)
5. Arraignment (formal reading of charges)
6. Dismissal or trial |
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Term
| How do disputes proceed through the civil system? (5) |
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Definition
1. Plaintiff sues defendant for damages (files civil complaint)
2. Defendant is served with a summons
3. Discovery (gather info about complaint)
4. Answer (defendant responds)
5. Judgement or summary judgement |
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Term
| What is the Supreme Court review process? (5) |
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Definition
1. Begins with petition (someone asking for review)
2. 1 defense and 1 prosecuting attorney argue with 9 justices for 30 min
3. After trial, justices decide in private together
4. One justice writes opinion (longest process)
5. Public Information Officer (PIO) releases opinion to press in June (Judgement day) |
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Term
| How are Federal Supreme Court justices appointed? |
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Definition
| For life by the president, 9 justices |
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Term
| How are State Supreme Court justices appointed? |
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Definition
| By democratic election, 7 justices, term varies by state. FL 6 yrs staggered |
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Term
| Why are Supreme Court justices' decisions important? |
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Definition
| Rulings can establish precedents future cases are ruled on based on earlier cases (stare decises) |
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Term
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Definition
| Must have 5 justics in agreement to achieve |
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Term
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Definition
- No majority, court is split (4-3-2 something like that)
- All justices agree on outcome but don't all agree on reasoning
- The individual or smaller groups of judges all write their own opinions |
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Term
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Definition
| Opinion from the minority (losing) side; can be helpful in overturning ruling years later |
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Term
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Definition
| Justice agrees with the majority opinion, but not for the same reasoning |
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Term
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Definition
"Let it stand"
Legal principal where judges resolve to adhere to precedents - ruling from previous (similar) cases
Very binding for future decisions |
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Term
| What are precedents? Why are they important? |
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Definition
| Cases that help establish legal principal of stare decisis. Supreme court rulings are most important |
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Term
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Definition
Written petition to the Supreme Court to review case
Beginning of the Supreme Court review process |
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Term
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Definition
Pleadings filed by attorneys
The initial legal argument |
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Term
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Definition
| Case sent back down to lower courts from appellate |
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Term
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Definition
| To deprive a person of his/her liberty by legal authority by taking custody for the purpose of holding him/her to answer a criminal charge or civil demand |
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Term
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Definition
| a process against a defendant for an alleged criminal action |
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Term
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Definition
| one who takes charge of a criminal case and performs the function of the trial lawyer for the people and prosecutes in the name of the government |
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Term
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Definition
Person defending or denying charges
In a criminal case, person accused of a crime |
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Term
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Definition
| Issued by a grand jury charging person who has committed a crime |
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Term
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Definition
- citizens, number varies from state to state, who determine whether probable cause exists that a crime has been committed and whether an indictment should be returned against someone for a crime
- selected randomly and these jurors usually serve for a "term" sometimes months, even years |
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Term
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Definition
| Legal standard to determine if sufficient evidence to justify detention or trial |
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Term
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Definition
| Formal reading of charges (generally must happen within 24 hours of arrest) |
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Term
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Definition
| Prosecutor and defense counsel attempt to resolve case by guilty plea with an agreed upon sentence. Submitted to trial judge for approval |
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Term
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Definition
| Formal and unanimous decision/finding by a jury. Reported to the court and accepted by it |
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Term
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Definition
| party bringing lawsuit/filing legal case |
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Term
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Definition
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Term
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Definition
| initiates appeal. petitions court to take an action |
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Term
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Definition
| person who responds to petition |
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Term
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Definition
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Term
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Definition
| person appeal is taken up against |
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Term
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Definition
| selected according to law, make decisions solely based on evidence presented in court. Required if 2 parties disagree on facts of case and is requested |
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Term
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Definition
| official documents filed with court (complaint and answer) |
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Term
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Definition
first pleading filed by plaintiff
sets out cause of action, legal issues, and requests for damages or compensation |
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Term
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Definition
| response by defendant, either admitting or denying complaint |
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Term
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Definition
| process of gathering information about complaint |
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Term
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Definition
| commands witness to appear and give testimony before a court or at a deposition |
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Term
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Definition
| writ directing sheriff to notify person that action has been filed in court and that he/she is required to appear and answer complaint |
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Term
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Definition
| Ruling by judge that there is no dispute to material facts and that one party should win the case as a matter of law. before a trial |
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Term
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Definition
| "Congress shall make now law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the government for a redress of grievances." |
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Term
| What is the first amendment? |
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Definition
| Part of the US Constitution Bill of Rights, addressed the concern over the amount of power government had been given with the Constitution |
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Term
| What does the first amendment protect? (5) |
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Definition
| freedom of religion, speech, press*, assembly, petition |
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Term
| Why is the first amendment important? (4) |
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Definition
| Protects communicators, runs a democracy (people free to express opinions and criticize government), check on government power, helps in the search for truth |
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Term
| Theories of freedom of expression (5) |
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Definition
| Marketplace of ideas/attainment of truth, governance, check on government power, change with stability, fulfillment |
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Term
| Marketplace of ideas/attainment of truth - theory on expression of freedom |
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Definition
John Milton "Good ideas and the attainment of truth prevail in a free market
Part of "Areopagitica" a brochure that told why it is important to allow divorce |
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Term
| Governance - theory on expression of freedom |
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Definition
Alexander Meiklejohn "Informed citizenry will intelligently elect its leaders"
Allow citizens to be informed about government actions so they can elect leaders intelligently |
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Term
| Check on government power - theory on expression of freedom |
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Definition
| Vincent Blasi - protect the powerful media that "check" government's power (investigation and criticism of government) |
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Term
| Change with stability - theory on expression of freedom |
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Definition
We can write and discuss things to let off steam rather than fighting about it
Supports a stable and adaptable community which contributes to orderly change |
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Term
| Fulfillment - theory on freedom of expression |
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Definition
| Laurence Tribe - the need to express ourselves is natural and enriches our lives |
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Term
| What is the scope of protection under the First Amendment? |
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Definition
Not all speech absolutely. NOT protected: national security danger, incites a riot, fighting words, infringes on copyright.
DOES absolutely protect speech critical of government |
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Term
| What kinds of regulations are/are not permissible? |
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Definition
Judges must use STRICT SCRUTINY where governmental regulations (school boards, gov agencies, police departments, etc.) restrict the content of political, social, and artistic expression.
Content regulations are NOT permissible, unless the government has a COMPELLING interest and the regulations are NARROWLY TAILORED and is not BROAD or VAGUE |
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Term
| Hierarchy of protected/non protected speech (3) |
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Definition
Level 1 - Political and social expression (protected)
Level 2 - Commercial and sexual expression (protected)
Level 3 - Fighting words, threats, obscenity and false advertising (NOT protected) |
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Term
| Clear and present danger test |
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Definition
- Expression should be punished when words are in circumstances and are 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
- Has to be imminent unlawful force (timely)
- Protects more speech than bad tendency test
- first stated in Schenk v. US - pamphlets printed urging people to resist draft. failed present danger test |
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Term
| Who is protected by First Amendment? Adults/children/corporations |
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Definition
Adults have much broader rights than children and students - right to speak and publish, to associate, to receive information, to solicit funds, freedom from compelled speech.
- Students, corporations, press, broadcasters, cable, telephone, internet and non media corporations |
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Term
| What are the First Amendment rights of high school students? How is this different from college students? |
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Definition
- weak at public high schools.
- Hazelwood v. Kuhlmeier - any school sponsored expression can be censored, including any expression that the public may relate to schools
- can regulate disruptive, lewd or inappropriate speech
- more freedom for college students, same rules apply to larger community
- Hosty v. Carter - college students have no more freedom from administrative censorship than high school students |
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Term
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Definition
- Not protected by first amendment
- words that by their very utterance inflict injury or tend to incite an immediate breach of the peace
- Chaplinsky v. New Hampshire - said cop was a " goddamn racketeer and a fascist" (fighting words)
- Cohen v. California - fuck the draft (not fighting words) |
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Term
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Definition
- protected by first amendment
- insult and degrade groups identified by race, gender, ethnic group, religion, sexual orientation
- when hate speech becomes fighting words, they lose protection "string 'em up" are fighting words
- threats NOT protected |
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Term
| history of the First Amendment |
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Definition
- Gov has historically tried to control speech and press
- purpose was originally to prevent prior restraints
- 1791 ratified
- was originally the 3rd amendment, first two didn't pass
- written by James Madison "the father"
- Bill of Rights is constitutional protection to set limits on government |
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Term
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Definition
pre First Amendment days
it was a serious crime to petition the government or advocate for change |
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Term
| Judicial decision making process for regulation of speech |
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Definition
must apply 1 of 2 "Standards of Review" when judging a case
- strict scrutiny: looks at fundamental rights (hard to prove)
- rational basis: looks at other laws (government has to show they have a reason for regulating speech)
- judges must scrutinize regulations for OVERB-READTH, VAGUENESS, and ensure LEAST-DRASTIC MEANS to accomplish a COMPELLING government interest |
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Term
| First Amendment speaker analysis depends on (3) |
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Definition
| speaker, location of the speaker, content of speech |
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Term
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Definition
- political, social, and artistic expression
- very protected
- analyzed via strict scrutiny |
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Term
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Definition
- commercial and sexual expression
- protected, but can be more easily restricted
- analyzed via rational basis test
- indecent speech is protected, obscenity (flashing someone) is not |
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Term
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Definition
- fighting words, threats, obscenity, false advertising
- no protection
- not reviewed with strict scrutiny |
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Term
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Definition
tools judges use to judge a case
- strict scrutiny - fundamental rights
- rational basis - other laws |
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Term
| What is strict scrutiny and when is it used? |
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Definition
- used when gov tries to restrict or ban CONTENT of expression (level 1 speech - political, social, artistic expression)
- ensures government regulations are justified by a COMPELLING interest and the regulation is NARROWLY TAILORED and is not OVER-BROAD or VAGUE |
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Term
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Definition
- legislation unconstitutional because it restricts more expression than necessary
- prohibits too much speech |
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Term
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Definition
- legislation unconstitutional because average persons would not know ahead of time whether expression would violate law
- written unclearly |
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Term
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Definition
- legislation unconstitutional because it punishes only one person or group when it should punish more
- opposite of overbroad |
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Term
| Medium with highest level of First Amendment protection. Why? |
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Definition
| The press. First Amendment specifically defends it |
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Term
| Press - level of protection of freedom of speech |
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Definition
| Has the most protection of freedom. Has historically been found on the right side of the law and cannot be told what to print |
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Term
| Telephone and Internet Service Providers (ISP) - level of protection of freedom of speech |
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Definition
| receive a great deal of freedom of speech and protection (treated as pipelines) |
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Term
| Internet - level of protection of freedom of speech |
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Definition
highly unregulated. 1996 Telecommunications Act protects ISP when 3rd parties post libelous electronic messages, even if provider acts as a "publisher" and attempts to screen libelous and obscene speech.
Individual who publishes can be held responsible |
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Term
| Cable - level of protection of freedom of speech |
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Definition
| more freedom than broadcaster, less than publishers |
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Term
| Broadcasters - level of protection of freedom of speech |
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Definition
| very highly regulated, as they are so intrusive into peoples' homes |
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Term
| US Supreme Court decision on animal cruelty |
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Definition
- US v. Stevens
- can't be restricted because too over broad
- would punish lawful speech due to "alarming breadth"
- would regulate too much speech |
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Term
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Definition
1931
- Prior restraints started here. Court broke down government ability to stop the presses
- Near published article about Jewish gangs running city, claimed mayor, governor and members of jury were involved/not prosecuting. Was sued
- a Minnesota statute put publication restraints on "malicious, scandalous, or defamatory" publications (hard to prove)
- Supreme Court struck down state statute for violating freedom of the press
- 14th amendment says state law can't abridge free speech |
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Term
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Definition
- Miami Herald refused to publish a reply to paper's criticism of Pat Tornillo, a political candidate
- Tornillo sued, trying to enforce Florida's "right to reply" statute
- Supreme Court denied Tornillo's claim AND struck down statute
- Government cannot COMPEL newspapers to print certain things
- If we allow the government to dictate what gets printed, they could force them to support their views |
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Term
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Definition
- Cohen wore "fuck the draft" shirt in court house (Vietnam)
- was arrested
- Supreme Court overturned - NOT fighting words, protected comment on unpopular war; no immediate danger of violent physical reaction
- protection of freedom of expression |
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Term
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Definition
- Federal statute punished "crush videos"
- Stevens filmed dog fights and sold them
- Congress passed law restricting animal cruelty on video. Law was over broad
- Stevens was convicted, appealed and won
- Justice Roberts said it punishes lawful speech due to it's "alarming breadth" |
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Term
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Definition
- allows officials to regulate high school expression
- student newspaper interviewed students about controversial topics
- principal deleted 2 stories from paper
- Congress upheld speech is not protected if it interferes with ability to teach
- paper was produced in class supervised by teacher, not in a public forum that school officials would be prohibited from regulating
- school can impose virtually any regulation on any school-sponsored expression that public might associate with the school
- courts still uphold off-campus expression that disrupts education process |
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Term
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Definition
- Dean for Student Services pulled the yearbook because of poor quality and unagreeable theme
- students sued
- Federal appeals court reaffirmed university students have more first amendment rights than high school students
- administrators tried to use Hazelwood to regulate - federal courts slapped them down because yearbook was a limited public forum |
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Term
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Definition
- Governors State University paper criticized administrators
- If you print the story, we won't pay advisor of newspaper
- Students sued, courts upheld school's decision under Hazelwood
- went to Supreme Court but was denied cert
- GSU helps run paper, so it was not a dedicated public forum |
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Term
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Definition
- Bong Hits 4 Jesus on field trip
- Supreme Court ruled it was a substantial disruption to the educational process, and promoted drug message
- Court ruled school had jurisdiction on field trip because it was a "school function"
- had it been political and not drug related/illegal, would have been protected |
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Term
| Chaplinsky v. New Hampshire |
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Definition
- Chaplinksy calls police officer "goddamn racketeer and a goddamn fascist"
- fighting words
- would entice cop to hit him
- Court said speech that incites a riot or encourages people to commit illegal activity not protected |
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Term
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Definition
- "God hates fags" on sidewalk outside military funeral
- Supreme Court ruled in favor of Phelps (Westboro Baptist Church)
- speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if speech is "outrageous" |
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Term
| Can speech be restrained? If so, what kind? |
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Definition
Yes.
- Broadcasters required by law to censor material that may not be in the best interest of the public or may be obscene
- any speech that fails Clear and Present Danger Test (incites imminent danger or attempts to incite riot or violence) may be restrained
- speech related to national security can be highly restrained |
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Term
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Definition
restriction on expression BEFORE publication or broadcast by injunction, agreement, or discriminatory taxation
discriminatory taxation - taxes based on published content; most serious and least tolerable form of regulation expression |
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Term
| Supreme Court statement on prior restraints |
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Definition
- most serious and least tolerable infringement on first amendment rights
- first amendment doctrine favors punishments after publication instead of prior to |
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Term
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Definition
- order from court telling person or company to perform or restrain from some act, such as publication
- commands to halt obscenity, false advertising, fraud and speech outside constitution |
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Term
|
Definition
| if court puts injunction on newspaper, or anyone else, they are said to be "enjoined" |
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Term
| examples of allowable prior restraints (5) |
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Definition
| blocks on false advertising, copyright violations, dispatches from military combat sites, national security threats (military security review), licensing for broadcasters |
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Term
| rules on covering military operations |
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Definition
- all publications subject to Military Security Review
- military commanders have option to subject news crews for review for security purposes
- journalists have no first amendment rights to BE ON the front lines, but can go on front lines |
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Term
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Definition
- public property dedicated to public discourse
- streets, sidewalks, Turlington, traditionally open to public debates |
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Term
| how does first amendment protect speech in public forums? |
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Definition
- by making content-based regulations unconstitutional
- may restrict time and place at which you can speak (content-neutral) but cannot restrict what you speak about |
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Term
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Definition
- property government intentionally designates for public discourse
- state universities can dedicate public forum on campus when it allows registered student groups to meet there
- school board meetings, municipal auditoriums, even a public bus system that accepts political as well as commercial advertisements are dedicated public forums |
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Term
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Definition
- not dedicated by policy to public discourse
- public/government property needs no justification in barring any kind of speech/expression it wants (military base, courthouse) |
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Term
| How and why do courts treat broadcasting and cable differently? |
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Definition
Broadcasting and cable require 1. public resources (the electromagnetic spectrum) and 2. infrastructure (cable or fiberoptic lines lain under public property.
- Scarcity Doctrine justifies regulations of broadcasters
- print media/cable not regulated in same way because channels are not scarce like in broadcasting (physical limitations of electromagnetic spectrum)
- people pay for cable and it is franchised |
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Term
| What are the rationales for government regulation of ownership and content in electronic media? (3) |
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Definition
- electromagnetic spectrum only has so many frequencies one can broadcast on without signals being scrambled
- it is a public, physical resource that is limited, responsibility of the government to make sure wavelengths being used in best possible public interest
- demand for spectrum space exceeds amount available |
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Term
| what process and criteria are used to license and re-license broadcast stations? |
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Definition
- Congress and FCC placed limitations on number of stations one person/company may own and types of licenses available
- don't want too much of one voice/opinion to dominate public system
- licenses awarded based on merit of programming; not awarded if does not serve public interest
- as many diverse voices heard as possible (public interest in mind) |
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Term
| what process and criteria are used to license and re-license broadcast stations? |
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Definition
- Congress and FCC placed limitations on number of stations one person/company may own and types of licenses available
- don't want too much of one voice/opinion to dominate public system
- licenses awarded based on merit of programming; not awarded if does not serve public interest
- as many diverse voices heard as possible (public interest in mind) |
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Term
| do individuals have right to discuss public issues on broadcast stations? |
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Definition
as justified by Scarcity Doctrine -
- if serving public interest, can be allowed and even encouraged, but not an inherent right that cannot be blocked
- broadcast licenses do not give right to broadcast only one's own views on public issues or views of those who agree with them
- according to Fairness Doctrine, licensees required to provide balanced coverage of public issues |
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Term
| what is the difference between content-based and content-neutral regulation? what are these regulations based on? (3) |
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Definition
- content-based- restrict content of speech
- content-neutral- restrict when/where speech can be given
- based on - speaker, location, type of speech |
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Term
| tests for content-based and content-neutral regulations |
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Definition
- content-based- strict scrutiny
- content-neutral- O'Brien test - for laws that incidentally regulate expression (noise ordinance) not about what you're listening to but how loudly
time, place, manner test - regulates expressive activities, like parade or picketing; controls when and where but not content |
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Term
| What are time, place, manner restrictions? When can they be used? |
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Definition
- content-neutral regulations to regulate expressive activities like parade or picketing
- control when/where but not content
- government must show significant/substantial interest, and that it is within governmental duties to protect citizens (playing music loud violates health and safety)
- must be narrowly tailored
- must provide ample channels of alternate means of communication |
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Term
|
Definition
- expression designed to communicate ideas, conduct is how you act in doing that
- conduct not protected
- expressive conduct or symbolic speech is protected but can be regulated
- if you don't like the way someone teaches you can wear an armband, write a sign, can't throw a rock at their window
- difference between speech and conduct/actions |
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Term
| tests for court to consider when ruling on constitutionality of a content-neutral regulation |
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Definition
| Time, place, manner test and O'Brien test |
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Term
| US Supreme Court statement on speech in Simon & Schuster v. Crime Victims Board |
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Definition
- Based on Son of Sam law - criminals and those accused of crimes must deposit income from works describing their crimes in account for criminal's victims and creditors
- Supreme Court found law unconstitutional and like discriminatory tax laws because discouraged creation of protected expression (taxing something based on view point presented)
- content-based statute so STRICT SCRUTINY was applied |
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Term
| Can criminals make money from selling stories about their crimes? |
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Definition
- FL statute prevents criminals from making any profit off telling story about their crime
- legislature put lien (right to keep property until debt paid off) on any profits/royalties made and gave to victim's families
- state of FL asked prof. Chance to argue statute was constitutional
- Rolling could autograph things and make money, as it is not an account of crime |
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Term
| when can communicators be punished after publication? |
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Definition
libelous, false, fraudulent, private communicators
this is favored over prior restraint |
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Term
| can you be punished for publishing confidential information lawfully acquired from someone who deliberately leaks the information? |
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Definition
- if info obtained from reputable source (like an affidavit), communicator not punished
- person sourcing information can be punished
- NY Times v. US, Wikileaks, Espionage Acts |
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Term
| Simon & Schuster v. NY State Crime Victims Board |
|
Definition
- no laws that impose financial burden on speakers based on content of their speech
- court struck down law requiring convicted criminals to deposit money from profits based off description of crimes into account for victims and families |
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Term
|
Definition
- Pentagon Papers
- government wanted to enjoin papers from publishing
- court ruled did not threaten national security, so prior restraint was unconstitutional |
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Term
| Red Lion Broadcasting Company v. FCC |
|
Definition
- most important case concerning broadcasting
- FCC required discussion of public issues be presented on broadcast stations, and each side of issues must be given fair coverage
- Red Lion challenged this- said unconstitutionally infringing on speech of the station's editorial judgement
- court ruled right to free speech is not violated when FCC ensures that spectrum is used to serve public interest
- FCC added equal time rule and response to personal attack |
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Term
|
Definition
- O'Brien test
- court upheld military draft law prohibiting men from mutilating/destroying draft card, even when applied to Vietnam war protestor publicly burning his card
- court said constitutional because it was content-neutral
- ruling adopted because it was not to punish dissent or the content of the protest, but to allow gov to raise armies quickly and efficiently by requiring eligible men to carry their classification cards |
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Term
| Smith v. Daily Mail Publishing Co. |
|
Definition
- newspaper monitored police band radio and asked eye witnesses
- published name and info of juvenile who allegedly killed another youth
- West Virgina statute required written approval from juvenile courts before publishing name of youth charged as juvenile defender
- statute struck down, violated first and 14th amendments
- if newspaper lawfully obtains info of public significance, they can't be punished
- receipt of TRUTHFUL is legal, whether obtained legally or illegally, or even if it is not supposed to be disclosed |
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Term
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Definition
an expression which injures a person's reputation or standing in the community = defamation
written (libel) or spoken (slander) |
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Term
| What is the difference between civil and criminal defamation cases? |
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Definition
- libel cases started off as criminal but now most are civil (person to person)
- half of states recognize criminal libel but prosecutions are rare now (gov doesn't want to get involved)
- FL recognizes criminal libel |
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Term
| where does the law of defamation come from? (3) |
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Definition
- Common Law (case law or judge made law originally brought to colonies from England)
- state statutes
- the Constitution, specifically from the application of NY Times v. Sullivan
^ case changed whole perspective of defamation. said defamation was protected by first amendment
- there are still restrictions but also protections that can override many things |
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Term
| what is the difference between slander and libel? is there a difference today? |
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Definition
- libel is written, slander is spoken
- isn't separated anymore because of modern media, used to be relevant before all the technology |
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Term
| who can be a libel plaintiff? who cannot? |
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Definition
- living individuals (must be alive when started, can die during) and businesses can
- government cannot
- libel-proof: murderers. gray area |
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Term
| what does a person have to prove to be a libel plaintiff? (to sue for defamation) (6) |
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Definition
plaintiff burden of proof - ALL must be proven
- defamatory statement
- identification (personally of yourself)
- publication (3 people must be involved. speaker, plaintiff, and ONE person who reads/views material)
- fault
- falsity
- personal harm (money damages) |
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Term
| how did libel law change with NY Times v. Sullivan, particularly the fault requirement? |
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Definition
- NY Times ran ad in support of MLK and Civil Rights movement which made police, and therefore public safety commissioner Sullivan, look bad
- Sullivan not directly mentioned in ad
- STRICT LIABILITY was standard applied then; only had to prove defamatory statement, identification, and publication
- now must prove: defamatory statement, identification, publication, fault, falsity, personal harm ($ damages)
- Sullivan won but Supreme Court overruled and said "bad speech intertwined with good speech, can't punish media for a mistake" (there were some factual errors, like # times MLK was arrested)
- debate on public issues should be uninhibited and first amendment actually protects some libel
** burden of proof switched from defendant having to prove statement was true to plaintiff having to prove statement was false |
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Term
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Definition
- revolutionized law of defamation
- NY Times printed ad supporting MLK and Civil Rights movement and protestors to raise funds
- ad reported on police activities that made them look bad
- sense of ad was correct, but there were some inaccuracies (song kids sang, how many times MLK was arrested)
- Sullivan was public safety commissioner (in charge of police)
- convinced jury he had been personally libeled, even though ad didn't mention him directly
- all he had to prove was STRICT LIABILITY (defamatory statement, identification, publication)
- Supreme Court overruled state decision
* burden of proof switched from defendant having to prove statement was true to plaintiff having to prove statement was false |
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Term
| What are some forms of libel? (9) |
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Definition
- words, implications, innuendos
- circumstances (if story conveys defamatory meaning or distorts truth, it is held to be defamatory. ex. incorrectly announcing someone as the father of the baby to a woman who is promiscuous)
- headlines
- ads (can say your product is the best but not something false about competitor's product)
- photographs/cartoons (if a reporter came and took a pic of the class but used it to illustrate story of students struggling with STDs, could be defamation because makes you look like you are one of those struggling)
- political cartoons |
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Term
| what are the most common areas of defamatory content? (10) |
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Definition
| crime, occupation, business, product disparagement or trade libel (suing for lost prices), personal habits/character, politics, religion and race, humor and ridicule |
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Term
| what are the elements of a defamation lawsuit? (6) |
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Definition
- identification: plaintiff must prove language is "of and concerning" them, doesn't specifically have to be a name (US President's wife); groups larger than 100 cannot sue; groups less than 100 can, but hard to prove
- publication: must involve 3 people, publisher, plaintiff, one viewer
- fault: private plaintiffs must prove negligence, public figures and officials must prove actual malice
- defamation
- falsity
- personal harm |
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Term
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Definition
| defendant published defamatory statement either knowing it was false or with reckless regard for the truth |
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Term
| public officials vs. public figures |
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Definition
- public officials - elected or non elected/appointed (school board, have substantial control and can influence public controversy
- public figures - intimately involved in resolution of public question; fame can shape events because they have effective access to channels of communication
types: all purpose - celebrities (tiger); limited/vortex - thrust themselves into the public (his hoes); involuntary - Casey Anthony until she started blogging which made her a limited |
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Term
| what does each plaintiff have to prove for libel? (public official, public figures, private persons) |
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Definition
public officials - actual malice; applied to all aspects of life
all purpose public figures - actual malice; applied to all aspects of life
limited purpose public figures - actual malice; applied to only aspects of life that make them public figure (ex. less famous basketball player not immediately recognized (not a Lebron) applied to defamatory statements about his career, not his love life)
involuntary public officials - actual malice
private persons - negligence; must prove falsity in PUBLIC matters, not private
*all must prove falsity |
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Term
| what makes a person a limited-purpose public figure? |
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Definition
- people who thrust themselves into public controversy intending to influence public opinion and affect outcome of controversy
- must show actual malice if libel statements connected to controversy
- ex. Jewell security found bomb in park then became prime suspect. wanted to sue for defamation, but because he participated in so many interviews about the bombings, made himself a limited-purpose public figure |
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Term
| what constitutes reckless regard for the truth? |
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Definition
| acting with a high degree of awareness that what you're doing is wrong. not making sure what comes to you is verified |
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Term
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Definition
defendant failed to do something a REASONABLE person would do in similar situation
test of reasonableness
- plaintiff: only a private person can claim
- ex. failure of journalist to contact person about which they are writing
- if you rear end someone while texting and driving, could be sued for negligence because a reasonable person would not text and drive |
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Term
| types of damages available to successful libel plaintiffs (3) |
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Definition
- presumed damages: loss of money defamation is presumed to have caused
- compensatory damages: actual money lost because of defamation; for most people won't even cover lawyer fees
*punitive damages: meant to punish defendant for behaving so badly; million $ verdicts. MUST PROVE ACTUAL MALICE. EVEN PRIVATE PERSONS |
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Term
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Definition
| a person who's reputation is so bad you cannot hurt it any more than it has already been damaged |
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Term
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Definition
- truth: protected as long as long as statement is substantially true and you can PROVE (NYT v. Sullivan)
- opinion: protected unless it contains something that can be proven factual or not. protects books, movies, restaurant critics. (calling someone a "snake" is opinion, saying "In my opinion, he is a child molester" IS defamation and not an opinion)
- privileges
--absolute privileges: defendants only have to prove statement took place in one of these areas - 1. Gov officials acting in their official capacity, they are absolutely protected. same conversation in bathroom, not protected 2. consent - if someone consented to interview, cannot come back and sue 3. broadcasts by political candidates - broadcasters can air false defamatory speech against candidates
--qualified privileges (must meet other requirements- accuracy and no ill will) 1. reporters privilege - can report defamatory statements if you report accurately and no ill will 2. neutral reporters privilege - protects when you get info from responsible, prominent organization (few states have this protection, FL is one of them) 3. self defense - people can use reasonable means to defend themselves against assault, unfair business practice, or libel (protected) 4. mutual interest privilege - protects communication between people with common interest (business partners and letters of credit and references) |
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Term
| Absolute privileges (libel defense) (3) |
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Definition
protect speaker of defamation regardless of accuracy. defendants only have to prove statement took place in one of these areas
- gov officials acting in official capacity are absolutely protected, official has same conversations in bathroom - not protected
- consent - if someone consented to interview, can't go back and sue you if you accurately report
- broadcasts by political candidates - broadcasters can air false defamatory speech of political candidates (political speech at core of 1st amendment) |
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Term
| qualified privileges (libel defense) (4) |
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Definition
protect speech only under certain conditions. have to meet other requirements (accuracy and NO ill will)
- reporter's privilege - reporters can report defamatory statements as long as you report accurately and have no ill will
- neutral reportage privilege - protects reporters when they get info from responsible, prominent organization (only a few states allow reporters this protection, FL is one of them)
- self defense - people can use reasonable means to defend themselves against an assault, unfair business practice or libel (individuals and businesses protected when the publish libelous statements to combat attacks on own reputations)
- mutual interest privilege - protects communication between people with common interests (business partners and letters of credit and references) |
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Term
| does the first amendment protect opinion? how? |
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Definition
- yes, expresses belief or judgement rather than assertion of fact
- protected unless it contains a provable, false connotation that can be proven fact or not
- allows critics to state opinions |
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Term
| is defamation on internet protected by first amendment? are ISPs responsible for defamation posted to their servers? what law is involved? |
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Definition
- ISPs are not publishers
- bookstore owners, telephone companies, public libraries have no liability. Can't publish phone company for libelous conversations that happen over their lines
- 1996 Telecommunications Act protects ISPs when 3rd parties post libelous messages (even when attempt to filter/edit posts is made)
- poster can be held responsible |
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Term
| what are the libel privileges and how do they work? (2) |
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Definition
- absolute privileges: protect speaker of defamatory message regardless of speaker's accuracy
- qualified privileges: protect speech only on certain conditions which vary state to state (can be defeated by abuses such as inaccuracies or common law malice) |
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Term
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Definition
- case established Telecommunications Act
- provides immunity for certain ISPs
- not reliable for 3rd party postings that defame a person as long as ISP doesn't interfere with content on site by editing or reviewing
- "Oklahoma City, it's a blast. Vote Tim McVeight for president"
- Supreme Court said AOL was immune because burden would be too great on ISP and would inhibit them from exercising freedom of expression |
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Term
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Definition
- defined different categories of public figures
- involuntary public figures rarely have to prove actual malice
- private plaintiffs don't have to prove actual malice
- Gentz was high profile attorney representing parents of child killed by a policeman
- American Opinion magazine falsely called him Leninist and communist, and he was dragged into public spotlight by media
- won case
- libel statement was NOT regarding what he was already in the public spotlight for (murder case)
- court ruled he was a private figure and did not have to prove NY Times actual malice |
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Term
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Definition
- Hutchinson tested monkeys and aligned jaw clenching as a response to stress
- Senator Proxmire said in speech Hutchinson's research was bogus
- Senator's criticism of Hutchinson was privileged on floor of senate (not outside)
- legislative privilege does not extend to written and spoken statements beyond legislative process
- Proxmire could be sued for defamatory remarks repeated in press releases, newsletter, talk shows
- Hutchinson won |
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Term
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Definition
- candidate (St. Amant) said opponent (Thompson) was taking bribes from union officials in his speech
- obtained info from affidavit
- Supreme Court ruled no reckless disregard because source was reliable
- Court said plaintiffs can prove reckless disregard only if they can prove defamatory statements were made with "a high degree of awareness of their probable falsity" |
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Term
| Harte-Hanks Communications v. Connaughton |
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Definition
- reporter published story saying judge running for office blackmailed opponents
- reporter used unreliable sources, refused to listen to contradictions in the story, failed to interview judge, refused to listen to judge's claim he didn't blackmail anyone
- Supreme Court ruled reporter acted with reckless disregard (proved actual malice) |
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Term
| Curtis Publishing v. Butts |
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Definition
- *case extended actual malice to public figures
- source said he heard phone call between Georgia and Alabama coach that they were going to fix score of game
- source had bad rep, had been convicted of fraud
- Supreme Court ruled reporter acted with reckless disregard because source was unreliable and he didn't verify any facts (proved actual malice) |
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Term
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Definition
- AP article said retired army officer was preventing officials from coming to schools to integrate them
- was not true but supreme court ruled no actual malice because reporter checked reliability of source who gave him the story |
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Term
| Philidelphia newspaper v. Hepps |
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Definition
- paper accused Hepps of being involved in organized crime using connection to influence state legislature
- state jury ruled in favor of newspaper, gave the burden of proof
- supreme court ruled in favor of Hepps, newspaper was required to prove its accusations true and did not
- private persons involved in private matters NOT required to prove falsity
- people commenting on issues of public concern get a little more protection, even the private people suing them |
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Term
| Milkovich v. Loraine Journal Co. |
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Definition
- HS sports reporter covered trial where wrestling coach testified
- reporter said coach was a liar
- Coach won because statement could be proven true or false |
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Term
| Richard Jewell v. Atlanta Journal and Constitution |
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Definition
- Jewell was security guard who found suspicious package with bomb in it
- became prime suspect and accused of planting the bomb himself, calling in the bomb before it was actually discovered, and contacting media for interviews to make himself look like a hero
- Brokaw (media reporter) made comments that assumed Jewell was already guilty; FBI wanted someting public or they would not have leaked story to press
- represented by Lynn Wood, wants to claim Jewell as private figure because they don't have to prove actual malice
- courts say Jewell is voluntary limited-purpose public figure because
1. purposefully tried to influence outcome of public controversy
2. participated in public controversy by granting 11 interviews
Piedmont College, NBC, NY Post, and CNN all settled with Jewell
Cox case was closed after Jewell's death |
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Term
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Definition
- provides basic legal system
- top law of land
- can be amended
- still a basic set of laws |
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Term
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Definition
- provides basic legal system
- below US constitution
- can be amended
- still a basic set of laws |
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Term
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Definition
- general rules passed by legislatures (House and senate reps)
- harder to amend US than senate |
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Term
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Definition
FDA, FCC, SEC, FTC
pass rules and regulations that have the effect of statutes |
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Term
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Definition
| President. can create laws by executive orders, proclamations and treaties |
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Term
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Definition
aka judge made law
- accumulation of rulings made by courts in individual disputes (based on custom and practice
- to explain and interpret law
- decipher what is and is not constitutional |
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Term
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Definition
- opposite of court law
- you go to if you don't want money damages
- ex. divorce
- now courts can have various rulings/sentences |
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Term
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Definition
| every case begins here, jury only in this court |
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Term
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Definition
| review trial court's decision, either overrule or uphold |
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Term
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Definition
- every state has one
- US is top court
- review issues that qualify for further review ex. new issues or situations |
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Term
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Definition
| federal version of state trial court (cases start here) |
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Term
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Definition
| 13 circuits (zones of country) |
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Term
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Definition
- flag burning is legal because it is expression of political opinion
- gov may not prohibit expression of any idea simply because society finds the idea offensive or disagreeable |
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