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o Ex of Clear and Present Danger Test, ruled that only when there is an imminent danger of incitement of illegal activity can authorities step in to stop speech
o 1st Amendment only allows punishment for subversive advocacy:
• Calculated to produce “imminent lawless action”
• And which is likely to produce such an action
• How do we know if it’s likely that the speech will lead to illegal activity?
o Who is the speaker? History of illegal activity?
o Do people take the speaker seriously?
o Is there a likelihood that the actions will be carried out?
o The more power we give government to make balancing decisions themselves, the less power we give ourselves to do that |
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ex of prior restraint....anti semitic newspaper, people wanted to block publication of newspaper articles and took it to court
**but you can't prevent publication of something before it happens, you can only file a complaint after it happens
**govt cant keep you from speaking, only when it concerns national security |
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**deals with obscene and offensive content.
**offensive content is NOT protected speech and is NOT protected by the first amednment
*gave jurors some guidelines on how to recognize what is obsencity |
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| unprotected by the first amendment |
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| Obscenity, libel, incitement (clear and present danger) and fighting words |
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another example of prior restraint.
**Govt tried to block publication of the of these (which told what was really happening in Vietnam, war was escalating). However, Court upheld ruling in near vs minnesota that you can't block publication beofre it happens, you can only file a complaint afterwards |
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| New York Times vs. sullivan (1964) |
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court ruled that public officials must prove actual malice in seeking damages, and said that the paper only was guilty of negligence.
**also shifted/raised burden of proof to put it on the plaintiff..they must prove libel and actual malice in order to recover damages
**also set forth need for IDENTIFICATION (he was never named)
**o NO PRESUMPTION OF DAMAGES (like how court previously awarded Sullivan 500,000, which was then overturned. Public officials must prove why it hurt them in order to win damages |
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| Gertz vs. Robert Welch Co (1974) |
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Actual malice not necessary for defamation of private person if negligence is present.
**just because he is a private citizen speaking out on public matters, that doesnt make him a public official, he has a lower burden of proof, because he doesn't have to prove that his statements were made recklessly, with malice |
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| Curtis Publishing co vs. Butts (1967) |
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Even though he isn't an elected public official, he is a public figure and we want to protect that
**He won...court decided reporting was lax, proved that the press could lose, people could win. |
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| What's changing in jorunalism? |
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Definition
| economic context, technology, trends in advertising and PR, and people's attitudes and media credibility, journalism is broadening, marketplace is threatening reporting the very defintion of what is news, news has gone soft |
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| news media is expected to bring a diverse range of ideas, reflect shared values, teach the people about other points of view, and provide us with the info we need to govern ourselves. **news business is expected to make a profit |
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society's needs can be best met through an unregulated process of exchange based on supply and demand. Consumers will ultimately force profit-seeking business to act in a way that serves the public.
**Calls for private, unregulated ownership
**Promotes efficiency, flexibility, innovation, independence from govt
**problems: unequal access, undemocratic, doesn't always meet social needs |
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more idealistic, thinks that news media should be a place for public dialogue and debate
**encourages diversity/substance of thought, citizen participation, and information flowing freely) |
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| suggestions for good ownership/management |
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| owner shoudl be committed to citizens, clear and direct standards down the ranks, hire business managers who put citizens first, be clear to the public about your standards, and JOURNALISTS HAVE FINAL SAY OVER NEWS |
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| harvesting market position |
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--raise prices, cut costs (cut staff, increase newshole
--cut costs to a point, but quality goes down. short term: no effect, people remain attracted to you brand, but long term, the people wise up...once your brand and market position are gone, it's hard to get back |
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| media has two types of influence, commercial (place to sell) and social (community trust) |
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short term term: this may fluctuate
long term: hard to lose/build this quickly.... |
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| how internet is changing journalism |
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**online revenues increasing 33% per year, 70% online users go online for news, journalists now sensemakers of vast info out there (+ original reporting), more investment occurring, more online advertising
**in the future, it will be mostly online w/ a scaled down print service |
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| when journalism is concentrated in your backyard...goes so heavily local that that's all their is in the paper. LA Times stockholders thought that they shoudl do this with paper |
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| if companies become huge conglomerizations, than all you get is content tailored to only your interests...you don't get any of what you should have/need to have (extreme personalization) |
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| purpose of citizen journalism |
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to reconnect with the community, to no longer be that "carpetbagger journalist" but rather to participate in community building...reinvest back in teh people that are reading/buying the product
**democracy functions when people come together and have discussions about stuff |
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| why we protect freedom of speech and the press |
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| *protecting unpopular speech, discovery of truth, continuance of self government, safety-valve function, check on governmental power, and individual fulfillment |
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| content-neutral restrictions of speech |
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| the government may limit when, where, and how you say something as long as they aren't concerned with WHAT you're saying |
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| government must show a compelling reason for restricting speech that requires freedom of expression to take a subordinate role |
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courts have to weigh the values of speech against conflicting values or interests to see which value in a particular instance shoudl receive greater protection
*ex: fair trial rights vs press right; traffic concerns vs. right to nazi march |
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| Incitement (clear and present danger test) |
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govt may prevent speech if it shows that it will bring about substantive evils
*created by Oliver Wendell Holmes, he intended it to punish threatening speech, not just the mere advocacy of illegal acts in the future. Meaning has been twisted |
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| areas which the 1st amendment does not protect |
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| incitement (clear and present danger test), fighting words, obscenity, false advertising, libel (?_ |
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| not protected by the 1st amendment, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace |
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| when a false or defamatory statement is made public to a third party that does damage to a person's reputation |
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| identification, publication, falsity, fault, defamation |
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| truth, fair report, privilege, opinion, retractions/corrections, consent |
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when some form of communication exposes a person to ridicule, shame, or hatred, lowers him in the esteem of his fellows, causees him to be shunned, or injures him in business or his calling
**loathsome disease, accused of a crime, immoral act, or dishonesty/failure in business |
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| Public plaintiffs have higher burden of proof in libel than a private plaintiff, they have to prove that the publisher acted with actual malice, rather than just negligence |
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| Who has the burden of proof in libel? |
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| intrusion/tresspass, false light, embarrassing private facts, appropriation, |
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