Begun class by picking apart a case dealing with businesses as persons / public figures.
Can businesses sue for libel? Yes they can.
Can a business libel me? sure, absolutely
because their considered public figures under the law
Businesses as Public Figures- businesses can be considered "public figures" for the purposes of a libel action.
-did business use a highly unusual advertising or promotional campaign to draw attention to itself.
-is business regulated by the government
-was the libelous comment about a matter of public concern
"Things that can be true" but still hurt your reputation
Intentional Infliction of Emotional Distress
Ex. Jerry
it had a lower burden of proof...had to prove negligence
Supreme Court overturned the decision - they determined that IIED needed to prove actual malice.
The case put three new wrappers on actual malice
Turner .v "Dolcefino"
look for the law suit -
evidence / facts:
Mayor brought case
1991
attempted Insurance swindle
$6.5 million
Time suspicious activities
Buying cars with big insurance policies
what fault does he have to prove?
Falsity <> actual malice
Publication -
Identification -
Defamatory -
Falsity -
Fault - (libel by implication)
how can the media defend themselves against the charges
must show actual malice because Turner was a public official and public figure,
we presented what we saw as the truth, prove us wrong. "we never called him a criminal" -- libel per se
Thursday, September 27, 2012
Tuesday, September 25, 2012
Libel continues
Exam One was passed back.
!! ** Brief a case: Times v. Sullivan **
CHAPTER 4 (cont'd)
(Libel): Fault
Two questions
Who is the plaintiff ? - the one allegedly injured
How was the story/material processed? Steps taken to assure truth
1964 - NY Times v. Sullivan - Libel brought into the Federal level.
[libel is a state law...but brought to Supreme Court]
it was about an ad about MLK, the officer was identified as the AL police commissioner.
Supreme court reversed the decision so it was now against Sullivan.
Seditious libel [?]
Sullivan outlined restrictions for libel actions by public officials for criticism in the execution of their public responsibilities.
By the end of the 1960s, actual malice extended to all public officials and public figures.
"Public officials need to be able to take some heat" "Man up"
FAULT
Public Official -
Those with public responsibilities:
For fault must prove actual malice
Public Figures -
Those who:
-invite attention and comment
-have access to effective communication
willful and disregard for the truth - actual malice
1974 Gertz v Welch, Inc. Court determined that even private figures must prove fault in a libel action.
-all-purpose public figure. well known and easily recognized by the public (Jay Leno, Oprah)
-limited public figure. Someone injected into public issue
"puts themselves into the limelight"
So now - two levels of fault:
actual malice - knowing falsity or reckless disregard for the truth
negligence - failure to exercise reasonable care.
FAULT
Private Person-
Someone who does not meet any of the above standards. They only have to prove negligence.
Plaintiff has to prove as much actual malice as they can:
Actual Malice: (willful disregard to the truth)
-state of mind of the writers/editors
-was it written in good faith
-was there deadline pressure (hot news?)
-reliability of sources (normally reliable source)
-standard journalistic practices?
-believability (reasonable person rule) was story probable
-motivation behind story
Supreme court requires "clear and convincing" evidence.
(Opinion is not enough if experts agree with your side.)
Reckless Disregard for the truth:
- having a high degree of awareness of the probable falsity
- plaintiff must show that the defendant entertained serious doubts as to the truth of the publication
Negligence: (not being careful)
-no reasonable precautions
-failure to contact all parties
-failure to verify information
-discrepancy between reporter and source
Gross negligence:
-something between no precautions and ill will
REMEMBER - Libel laws are state laws
Times v Sullivan
Staff had no reason to doubt the claims..it was believable and reliable source..so Supreme said he has to prove actual malice that they were actually out to get him before he could win.
!! ** Brief a case: Times v. Sullivan **
CHAPTER 4 (cont'd)
(Libel): Fault
Two questions
Who is the plaintiff ? - the one allegedly injured
How was the story/material processed? Steps taken to assure truth
1964 - NY Times v. Sullivan - Libel brought into the Federal level.
[libel is a state law...but brought to Supreme Court]
it was about an ad about MLK, the officer was identified as the AL police commissioner.
Supreme court reversed the decision so it was now against Sullivan.
Seditious libel [?]
Sullivan outlined restrictions for libel actions by public officials for criticism in the execution of their public responsibilities.
By the end of the 1960s, actual malice extended to all public officials and public figures.
"Public officials need to be able to take some heat" "Man up"
FAULT
Public Official -
Those with public responsibilities:
For fault must prove actual malice
Public Figures -
Those who:
-invite attention and comment
-have access to effective communication
willful and disregard for the truth - actual malice
1974 Gertz v Welch, Inc. Court determined that even private figures must prove fault in a libel action.
-all-purpose public figure. well known and easily recognized by the public (Jay Leno, Oprah)
-limited public figure. Someone injected into public issue
"puts themselves into the limelight"
So now - two levels of fault:
actual malice - knowing falsity or reckless disregard for the truth
negligence - failure to exercise reasonable care.
FAULT
Private Person-
Someone who does not meet any of the above standards. They only have to prove negligence.
Plaintiff has to prove as much actual malice as they can:
Actual Malice: (willful disregard to the truth)
-state of mind of the writers/editors
-was it written in good faith
-was there deadline pressure (hot news?)
-reliability of sources (normally reliable source)
-standard journalistic practices?
-believability (reasonable person rule) was story probable
-motivation behind story
Supreme court requires "clear and convincing" evidence.
(Opinion is not enough if experts agree with your side.)
Reckless Disregard for the truth:
- having a high degree of awareness of the probable falsity
- plaintiff must show that the defendant entertained serious doubts as to the truth of the publication
Negligence: (not being careful)
-no reasonable precautions
-failure to contact all parties
-failure to verify information
-discrepancy between reporter and source
Gross negligence:
-something between no precautions and ill will
REMEMBER - Libel laws are state laws
Times v Sullivan
Staff had no reason to doubt the claims..it was believable and reliable source..so Supreme said he has to prove actual malice that they were actually out to get him before he could win.
Thursday, September 20, 2012
Started Ch 5 - Libel
Defamation - hurts someone's reputation that involves public ridicule
(state law, not in the constitution)
another umbrella term that covers both libel and slander
Example: "Pink Slime" defamation lawsuit against ABC
Where is this going? eventually she thinks the Supreme Court so something can be decided to effect all states.
Libel -
published - print, broadcast, internet
specific statement
have to be identified
###
level of fault
Slander -
oral/spoken defamation - usually amplified speech needed to justify "damage to reputation."
"transitory" - it doesn't last
prove it would hurt your reputation
(see more below "5 Elements of Libel)
LIBEL:
"A PUBLISHED statement, which is FALSE, that holds a SPECIFIC PERSON up to public contempt, hatred, scorn, ridicule and INJURES a person's personal, business, or professional standing in the community through FAULT."
Libel per se - libel on the face of it.
just by accusing them of a (false) criminal activity
Libel per quod - libel due to interpretation or circumstances
this is more assumed - Nun Mary had a baby when she was eighteen
libel due to circumstances
(in discussing example of a lie about the professor and sexual involvement with female students stated on Koofers)
"First of all, it was scare students off...I would hope."
Elements of Libel:
1. Publication
plaintiff must prove that someone other than self saw comment.
2. Identification -
Prove 3rd person recognized Plaintiff from comment.
(could be a very identifiable ring on a set of hands that were choking the life out of someone)
Groups can be libeled...women faculty at state schools in TN are prostitutes by trickin' on the weekend. If our professor walks down the street, no one is going to know she's a part of that group. That's too general. You'd need to be more specific such as women who teach in Mass Comm Production.
3. Defamatory -
would a reasonable person think less of the plaintiff
"did it hurt me"
The dead can't be libeled.
4. Falsity -
Plaintiff must prove comment is false.
public figures - always prove falsity
private figures - prove falsity if a matter of public concern
if private figure/private matter - defendant must prove truth.
The PLAINTIFF has the responsibility to prove it's false. "Burden of Proof"
The core of the libel must be proven truth or false. (its an opinion)
5. Fault -
Defamation came from media error
"That they did it on purpose"
Media MUST show their: Actual Malice or Negligence
Actual Malice - "intended, sneaky"
Negligence - "not checking your facts"
Who is the plaintiff? - the one allegedly injured (public or private person)
How was the story/material processed?
Steps taken to assure truth
(New York Times v. Sullivan: distinguished between actual malice & negligence. Article that supported MLK, Sullivan was identified..a few facts were wrong and got 1/2 million dollars..even though 35 copies were distributed.. then the Supreme Court reversed it. the only way to protect robust debate was to allow criticism of gov't officials (like Sullivan). So now public officials to prove actual malice.
(state law, not in the constitution)
another umbrella term that covers both libel and slander
Example: "Pink Slime" defamation lawsuit against ABC
Where is this going? eventually she thinks the Supreme Court so something can be decided to effect all states.
Libel -
published - print, broadcast, internet
specific statement
have to be identified
###
level of fault
Slander -
oral/spoken defamation - usually amplified speech needed to justify "damage to reputation."
"transitory" - it doesn't last
prove it would hurt your reputation
(see more below "5 Elements of Libel)
LIBEL:
"A PUBLISHED statement, which is FALSE, that holds a SPECIFIC PERSON up to public contempt, hatred, scorn, ridicule and INJURES a person's personal, business, or professional standing in the community through FAULT."
Libel per se - libel on the face of it.
just by accusing them of a (false) criminal activity
Libel per quod - libel due to interpretation or circumstances
this is more assumed - Nun Mary had a baby when she was eighteen
libel due to circumstances
(in discussing example of a lie about the professor and sexual involvement with female students stated on Koofers)
"First of all, it was scare students off...I would hope."
Elements of Libel:
1. Publication
plaintiff must prove that someone other than self saw comment.
2. Identification -
Prove 3rd person recognized Plaintiff from comment.
(could be a very identifiable ring on a set of hands that were choking the life out of someone)
Groups can be libeled...women faculty at state schools in TN are prostitutes by trickin' on the weekend. If our professor walks down the street, no one is going to know she's a part of that group. That's too general. You'd need to be more specific such as women who teach in Mass Comm Production.
3. Defamatory -
would a reasonable person think less of the plaintiff
"did it hurt me"
The dead can't be libeled.
4. Falsity -
Plaintiff must prove comment is false.
public figures - always prove falsity
private figures - prove falsity if a matter of public concern
if private figure/private matter - defendant must prove truth.
The PLAINTIFF has the responsibility to prove it's false. "Burden of Proof"
The core of the libel must be proven truth or false. (its an opinion)
5. Fault -
Defamation came from media error
"That they did it on purpose"
Media MUST show their: Actual Malice or Negligence
Actual Malice - "intended, sneaky"
Negligence - "not checking your facts"
Who is the plaintiff? - the one allegedly injured (public or private person)
How was the story/material processed?
Steps taken to assure truth
(New York Times v. Sullivan: distinguished between actual malice & negligence. Article that supported MLK, Sullivan was identified..a few facts were wrong and got 1/2 million dollars..even though 35 copies were distributed.. then the Supreme Court reversed it. the only way to protect robust debate was to allow criticism of gov't officials (like Sullivan). So now public officials to prove actual malice.
Tuesday, September 18, 2012
Exam 1 Today
Exam Day.
** Get 3 Large Scantrons for future exams **
** Read Ch4 Libel for class Thursday **
** Get 3 Large Scantrons for future exams **
** Read Ch4 Libel for class Thursday **
Thursday, September 13, 2012
Review for Test 1
Primarily multiple choice, a few true & false, short answer
Short answer questions are most likely about the First Amendment
(we might get to write matching questions)
Court System
4 Jurisdictions of Law:
International Law, Federal Law, State Law, Local Law
** Make quiz questions for each point on study guide from Pipeline **
Highlights from class discussion
What's got to be involved if the Supreme Court hears it? CONSTITUTIONAL ISSUE
Plurality would be a 4-2-2-1.. and 4 is the plurality..not really a strong case..nor a decision.
en banc - ( Their all hearing the case ) A French term used when all of the judges of appellate court decide the case. More typically, a single judge or smaller number of judges, called a panel, decided case.
Short answer questions are most likely about the First Amendment
(we might get to write matching questions)
Court System
4 Jurisdictions of Law:
International Law, Federal Law, State Law, Local Law
** Make quiz questions for each point on study guide from Pipeline **
Highlights from class discussion
What's got to be involved if the Supreme Court hears it? CONSTITUTIONAL ISSUE
Plurality would be a 4-2-2-1.. and 4 is the plurality..not really a strong case..nor a decision.
en banc - ( Their all hearing the case ) A French term used when all of the judges of appellate court decide the case. More typically, a single judge or smaller number of judges, called a panel, decided case.
Criminal cases involve state and jail
Civil cases involve persons and money
"So if your postman bites your dog, you can't sue him" (can't sue the government)
"back to my porn case" I can appeal it. You have one right to appeal. so the appellate court can send it back for retrial or they can sent it to the State Supreme Court whose decision would be the final verdict (you only get one shot to appeal if you loose)
Writ of Certiorari - (only if they feel like it)
Who interprets the constitution? US Supreme Court
The test that judges use to see if laws are constitutional or not:
Strict Scrutiny - (laws are) narrowly tailored, to serve that interest
Seditious Expression - speaking against the gov't
Peter Zenger case - (trash mouth) States and Feds can't do their own thing.. press?
ESSAY QUESTION ??
First Amendment Theories and defend it
"absolutist" - no law, means no law
free marketplace of ideas - the truth will come out (say what you want, but enough oppinions and discussion)
Results of Dennis,
Yates and Brandenburg Cases -
a test for sedition evolved - the TEST FOR FIGHTING WORDS, INCITING VIOLENCE "tomorrow at two, bring your own knife"
"restrain" speech by injunction or licensing or contract or mil security or taxing
Time Place Manner? that's to protect speech
Is censorship legal? it can be
Prior restraint or fine you after
Content neutral v content based laws:
content based laws > their probably going to have a fight on their hands
Questions about our brief << be aware
How parties are notifed:
Granted Cert "you only know when you win"
Criminal court needs a substantial burden of proof (Beyond reasonable doubt)
** Constitution Day Monday - have it signed off by a faculty **
Extra Credit
11 AM - Mass Comm (Main Street)
9 AM - BAS
Tuesday, September 11, 2012
CH 3 End & Class Case
Moved Exam up from next Thursday to next Tuesday September18
Handed back Student Briefs on Snyder v. Phelps
Handed back Student Briefs on Snyder v. Phelps
She was pleased overall with our work. Keep it up!
She noted that we need to focus on the Decision: "8-1 with a decent from Justice Yada"
Don't 'editorialize' a brief. Stick to the case itself.
=====================
She noted that we need to focus on the Decision: "8-1 with a decent from Justice Yada"
Don't 'editorialize' a brief. Stick to the case itself.
=====================
CHAPTER 3 (con't)
PRIOR RESTRAINT (compelling Gov't interest & narrowly tailored)
1. Injunctions
US v Progressive - Progressive Magazine - how to make a hydrogen bomb. Govt. claimed "immediate, direct, irreparable harm to the interests of the US."
Lower ct. approved injunction. . .no appellate court heard
2. Contract
1980 - Snepp v. US - CIA agent sued by CIA for breach of contract for book. Snepp left the CIA and requested the contract be voided. .court refused. He was stuck for life with a non-disclosure contract.
3. Military Security
Press coverage of military operations submitted for security review.
4. Licensing
Public forum (Licensing are different from permits..,this falls under "Time, Place, and Manner")
Motion Pictures
Broadcasting
5. Taxes:
Can't tax newspapers. . .period.
CAN tax broadcast and satellite media
PUNISHMENT AFTER PUBLICATION:
Cannot punish press for using material gathered by illegal means
- as long as press not involved in the illegal activity.
+ "she can know that it was stolen, but she can still publish the info"
CONTENT NEUTRALITY
"if it applies to one, it applies to all"
"Muslims can't picket on Sundays" Not Content Neutral
"You can't picket on Sunday without a permit from noon to five"
Time, Place and Manner
1. Is policy content neutral
A. Is there a substantial, compelling govt. interest
B. does the policy advance that interest
C. is the policy narrowly tailored to address only the govt. interest
2. Is there an alternative channel for the expression.
==== FINISHED CHAPTER 3 , TEST NEXT TUESDAY SEPT 18 ====
Let's take on a case.
Censorship
MBoro Middle School has put filters on all their computers so no student can access information that might be deemed pornographic.
Plaintiff: Andrew - 16 year old guy trying to find Scholarships for Gays
T-P-M (time place manner)
Why can't they censor this.
Determine both sides..
Content Neutral?
Strict Scrutiny
Intentionally blocked? or IT error in keywords?
Intentionally blocked < content neutral, discrimination
IT error < --- then how did you search "anti-gay"
LGBT
==== BREIF ====
FACTS:
- 16 year old cannot search scholarships from Gay organizations on school computers
- Rutherford School computers have a block attempting to stop students from accessing sites with pornographic content
ISSUES:
- Discriminatory internet parameters
- Student was discriminated by not having access to gay scholarships
- Equality in all scholarship sites
CONST BACKING:
ANTICIPATE RESULTS:
-
- Set an gay friendly filtered, but supervised computer for access to such cites.
- Pay us scholarship hinderance costs
"Good Start, we've got the lead"
Turns out that it WAS an IT error and resolved before it went to court.
Un-purposeful or vindictive
** Read Ch 3 **
Thursday, September 6, 2012
Chapter 3
Discussed a case VP Dick Channey being approached by Howard who poked him and asked "How many babies did you kill today?" talking about the war. Then the Secret service rushed in and removed Howard screaming 1st Amendment rights.
THE MOST PROTECT SPEECH IS POLITICAL SPEECH << most likely on the test
It was an 8-0 case, they all affirmed the decision
The Supreme Court is the final arbitrator. So He's Done.
(END OF CHAPTER 2) :
Smith Act of 1940 - Communists were deemed "sufficient evil" for Congress to control.
1945 - Dennis v US - first Communists arrested. Advocated violent overthrow of gov.
1957 - Yates v US - Supreme Court- advocating overthrow of a government not sufficient to sustain a conviction.
1969 - Brandenburg v Ohio - Last sedition case heard by the Supreme Court. Mustnot only advocate and provide means, but also rev up the crowd to revolt.
Resulted in "Brandenburg" test: (Standards would likely still be used today.) 1969
1. Intent to incite violence?
Ex: If you verbally attack a group of gays it is not an Incitement to Violence UNTIL you give a call to action "and we need to grab our guns and go!"
2. Time between speech and action must be very close.
"Lets go get 'em..uh next Saturday.." it has to be NOW, really close.
3. The conduct itself must be a lawless action. (Action must be illegal)
Grabbing them by the hair off the knoll.
4. Is the action substantially likely to occur based on the speech.
Is it really likely or are you just playing with the crowds "Yeah..I'll go"
[ Discussion on Cyber-bulling and Free Speech ]
No National Law.. that she knows of..
"Narrowly Tailored" .. strict scrutiny -- they can't just arbitrarily say you can't tweet for 30 min after a game. There has to be a narrowly tailored reason that they prohibit the tweeting.
1971 -
You could not wear the flag..only in daylight on a flagpole.
His flag denim shirt even said "Fuck the Draft" He was arrested.
It was ruled as "political commentary" and therefore protected.
==== SKIPPED TODAY ====
CONTENT REGULATION
Government CAN restrict in some cases. .
strict scrutiny from judges.
Government must show:
1. justified by a compelling government interest
2. narrowly drawn to impose the minimum restrictions on freedom of expression.
1984 – Texas v. Johnson. Johnson burned a flag in protest of government policies.
Supreme Court determined 1. no compelling government interest.
2. Overbroad to restrict everyone
Can't pass regulations that don't apply equally.
^^^=== SKIPPED TODAY === ^^^
Video games : Parents tried to use Brandenburg to argue that that was responsible.
Bottom line: proof that games increase violence
Who do we punish? Developers? Parents? Retailers? Schools? The Child?
Incited to violence, Judice Price "Do It" "caused" the kids to shoot themselves (but did't win)
Strict Scrutiny requires compelling gov. interest
and law narrowly drawn
Content neutral
laws that apply to all without regard to content
Test for Vagueness and Overbredth (can't put ANY, EVER) too vagueness
Can't pick and choose / differentiate between individual pieces.. must apply to all
=======================
CHAPTER 3
Methods of Control:
Two ways to protect the public from harmful speech
1. prior restraint - government censorship
2. Punishment - punishing after the publication
PRIOR RESTRAINT
1. Injunctions
Prohibits public from judging worth of publications
"If you publish that, you will be fined and thrown it jail"
1931 - Near v. Minnesota
Court struck down law permitting injunction to stop "malicious, scandalous or defamatory publications." Publisher should be forced to show that they were worthy of print.
New York Times v. US - Pentagon Papers case.
Nine opinions written by six concurring and three dissenting justices. Severely weakens strength of decision.
US v Progressive - Progressive Magazine - how to make a hydrogen bomb. Govt.claimed "immediate, direct, irreparable harm to the interests of the US."
Lower ct. approved injunction. . .no appellate court heard
2. Contract
Snepp v. US - CIA agent sued by CIA for breach of contract for book. Snepp left the CIA and requested the contract be voided. .court refused. He was stuck for life with a non-disclosure contract.
3. Military Security
Press coverage of military operations submitted for security review.
Tuesday, September 4, 2012
Ch 2 - Early Freedom of Expression
CHAPTER 2 -
Early Freedom of Expression
Star Chamber- a secret room for trials
Monarch made decision.
Abolished by Parliament 1641
Seditious expression?
Crime of creating a revolt, disturbance or violence against lawful civil authority. Limited to organizing and encouraging opposition rather than the ACT of overthrowing authority (that would be treason.)
Today Freedom of Expression means whatever the Supreme Court determines it to mean.
Controlled speech by taxes, licensing, (permissions to publish) and sedition laws.
Truth as a Defense
Zenger – 1734
the governed have a right to criticize those who govern
First Amendment
1776 - Declaration of Independence
1781 - Articles of Confederation. . .
1791 The Bill of Rights was ratified to guarantee individual protections from Congress.
First Amendment theories:
Absolutist theory:
Absolute freedom for political expression. “Congress shall make NO law. .“
Ad hoc Balancing theory:
Each case – is there a conflict between rights of public/rights of government
Preferred Position balancing theory:
Some Constitutional freedoms are more important than others. (my right is more important)
Mieklejohn Theory:
Late 1940s. Expression that relates to self-government is absolutely protected. Other expression must be balanced against other rights and values. (anything that creates more discussion about the government is absolutely protected)
Marketplace of Ideas Theory:
If all ideas are allowed to be presented, the truth will rise to the surface
Access Theory:
“Freedom of the press belongs to the man who owned one.”
Self Realization Theory:
The speech may have no meaning for anyone but the speaker. (Manifesto’s) "You believe it's true. You said it."
Two Times:
Criticize the govt. & broadcast time for political candidate
Fourteenth Amendment:
Duel citizenship
The Haves and the Have-nots
Forces states to comply with the federal decisions
Alien and Sedition Acts
Mid - 1800s Southern States passed variations of sedition laws to control Abolitionists. WWI- Sedition Laws resurfaced as super patriotism ruled the country
Espionage Act of 1917 (amended in 1918.) Criminal to criticize war effort.
1919 - Us v Schenk –urged men to avoid draft. Supreme Court - speech less protected during war.
1st and 14th amendments applied together:
1925 - Gitlow v. NY – First time Bill of Rights applied to STATES. “State shall also make no law. . ..” Gitlow was publishing/trashing the Gov. of New York, so the Gov shut Gitlow down. They filed "amicus briefs" friends of the court. First time the 14th amendment was applied to a state.
1931 – Near v. Minnesota - Supreme Court DID strike down Minnesota state statute that permitted prepublication restraints on “malicious, scandalous, and defamatory” publications.
Censorship
Smith Act of 1940 - Communists were deemed “sufficient evil” for Congress to control.
1945 - Dennis et al. v US - first Communists arrested. Advocated violent overthrow of gov.
1957 - Yates et al. v US - Supreme Court- advocating overthrow of a government not sufficient to sustain a conviction.
1969 - Brandenburg et al. v Ohio - Last sedition case heard by the Supreme Court. Must not only advocate and provide means, but also rev up the crowd to revolt. "Let's go get guns! Lets go kill them all!"
Such cases were judged by "strict scrutiny"
1. Compelling gov't interest
2. Narrowly tailored to service this interest
Resulted in “Brandenburg” test: (Standards would likely still be used today.)
1. Intent to incite violence?
2. Time between speech and action must be very close.
3. The conduct itself must be a lawless action. (Action must be illegal)
4. Is the action substantially likely to occur based on the speech.
CONTENT REGULATION
Government CAN restrict in some cases. .
strict scrutiny from judges.
Government must show:
1. justified by a compelling government interest
2. narrowly drawn to impose the minimum restrictions on freedom of expression.
1984 – Texas v. Johnson. Johnson burned a flag in protest of government policies.
Supreme Court determined 1. no compelling government interest.
2. Overbroad to restrict everyone
Can’t pass regulations that don’t apply equally.
Strict Scrutiny
Strict Scrutiny requires compelling gov. interest
and law narrowly drawn
Content neutral
laws that apply to all without regard to content
Test for Vagueness and Overbredth
** Read Chapter 3 ** ..and one and two if you haven't already
We turned in Briefs earlier in class
Early Freedom of Expression
Star Chamber- a secret room for trials
Monarch made decision.
Abolished by Parliament 1641
Seditious expression?
Crime of creating a revolt, disturbance or violence against lawful civil authority. Limited to organizing and encouraging opposition rather than the ACT of overthrowing authority (that would be treason.)
Today Freedom of Expression means whatever the Supreme Court determines it to mean.
Controlled speech by taxes, licensing, (permissions to publish) and sedition laws.
Truth as a Defense
Zenger – 1734
the governed have a right to criticize those who govern
First Amendment
1776 - Declaration of Independence
1781 - Articles of Confederation. . .
1791 The Bill of Rights was ratified to guarantee individual protections from Congress.
First Amendment theories:
Absolutist theory:
Absolute freedom for political expression. “Congress shall make NO law. .“
Ad hoc Balancing theory:
Each case – is there a conflict between rights of public/rights of government
Preferred Position balancing theory:
Some Constitutional freedoms are more important than others. (my right is more important)
Mieklejohn Theory:
Late 1940s. Expression that relates to self-government is absolutely protected. Other expression must be balanced against other rights and values. (anything that creates more discussion about the government is absolutely protected)
Marketplace of Ideas Theory:
If all ideas are allowed to be presented, the truth will rise to the surface
Access Theory:
“Freedom of the press belongs to the man who owned one.”
Self Realization Theory:
The speech may have no meaning for anyone but the speaker. (Manifesto’s) "You believe it's true. You said it."
Two Times:
Criticize the govt. & broadcast time for political candidate
Fourteenth Amendment:
Duel citizenship
The Haves and the Have-nots
Forces states to comply with the federal decisions
Alien and Sedition Acts
Mid - 1800s Southern States passed variations of sedition laws to control Abolitionists. WWI- Sedition Laws resurfaced as super patriotism ruled the country
Espionage Act of 1917 (amended in 1918.) Criminal to criticize war effort.
1919 - Us v Schenk –urged men to avoid draft. Supreme Court - speech less protected during war.
1st and 14th amendments applied together:
1925 - Gitlow v. NY – First time Bill of Rights applied to STATES. “State shall also make no law. . ..”
1931 – Near v. Minnesota - Supreme Court DID strike down Minnesota state statute that permitted prepublication restraints on “malicious, scandalous, and defamatory” publications.
Censorship
Smith Act of 1940 - Communists were deemed “sufficient evil” for Congress to control.
1945 - Dennis et al. v US - first Communists arrested. Advocated violent overthrow of gov.
1957 - Yates et al. v US - Supreme Court- advocating overthrow of a government not sufficient to sustain a conviction.
1969 - Brandenburg et al. v Ohio - Last sedition case heard by the Supreme Court. Must not only advocate and provide means, but also rev up the crowd to revolt. "Let's go get guns! Lets go kill them all!"
Such cases were judged by "strict scrutiny"
1. Compelling gov't interest
2. Narrowly tailored to service this interest
Resulted in “Brandenburg” test: (Standards would likely still be used today.)
1. Intent to incite violence?
2. Time between speech and action must be very close.
3. The conduct itself must be a lawless action. (Action must be illegal)
4. Is the action substantially likely to occur based on the speech.
CONTENT REGULATION
Government CAN restrict in some cases. .
strict scrutiny from judges.
Government must show:
1. justified by a compelling government interest
2. narrowly drawn to impose the minimum restrictions on freedom of expression.
1984 – Texas v. Johnson. Johnson burned a flag in protest of government policies.
Supreme Court determined 1. no compelling government interest.
2. Overbroad to restrict everyone
Can’t pass regulations that don’t apply equally.
Strict Scrutiny
Strict Scrutiny requires compelling gov. interest
and law narrowly drawn
Content neutral
laws that apply to all without regard to content
Test for Vagueness and Overbredth
** Read Chapter 3 ** ..and one and two if you haven't already
We turned in Briefs earlier in class
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