LAW - Political Speech chapter
Teacher: She's still not feeling well..
Coming tuesday:
CASE TO BRIEF: "Citizens United"
Expanding Corporate Rights to Speak
1978 - First National Bank of Boston v. Bellotti
Bank wanted to oppose state income tax. Bellotti (MASS Attorney general) said income tax not a direct impact on banking.
+ Supreme Court says citizens have a right to receive political speech by corporations.
+ Bank has right to express an opinion, public has right to hear it.
+ Cooperations cannot "plead the fifth"
1980 - Consolidated Edison Co. of NY, Inc. v. Public Service Commission of NY.
Laws restricting corporations must be content neutral. In other words, can't restrict just political speech.
Compelled Speech:
Pacific G and E v. Public Utilities Commission of CA -
1986 - Electrical company (Pacific Gas & Electric)
"they didn't even know what green meant..it was just a color"
Supreme Court 5-3 decision said that forcing a utility to carry unwanted consumer messages was unconstitutional.
Legal Restraints on Corporate Speech during elections
In Belotti the courts specifically said that corporations can speak about public issues - but that does NOT include participation in a political campaign.
1971 - Federal Election Campaign Act
Contributions - funds given to a candidate or campaign committee
Expenditures - funds spent independently of candidate on their behalf
Corporations are not permitted to make either contributions or expenditures for candidates running for FEDERAL office.
Profit Making Corporations:
Laws restricting speech must show
"compelling interest and narrowly tailored"
Prohibited Contributions and Expenditures:
gifts of money, advertising, securities, discounts, membership lists, use of facilities, broadcast time, and services to the candidates and their campaigns.
2006 - FEC (Federal Election Commission
-incidental use of business computers for voluntary internet political activities is ok. . .
2010 - Citizens United - FEC
cooperations can buy ads for political candidates.
PRESS EXEMPTION
To determine is press exemption applies:
- Is it a bonafide press entity. Is there editorial control.
- Is entity owned by political party, candidate, or political committee
-Is entity engaging in legitimate press function.
====
So on tuesday: Read the chapter
Thursday, October 25, 2012
Tuesday, October 23, 2012
Thursday, October 18, 2012
Class Canceled? Confusion
Note said canceled...but we were supposed to turn in our briefs upstairs..
Due to confusion, no one will be penalized. She won't count anyone absent and picked up the briefs later.
Due to confusion, no one will be penalized. She won't count anyone absent and picked up the briefs later.
Friday, October 12, 2012
Copyright: Licensing
Media Law
Copyright
Protection
Three parts to notice
- copyright or ©
- date
- full name of owner
© Copyright, 2012 Kyle Matthew Jones
To protect your copyright:
- Post the copyright notice
- send two copies with the proper forms and fee to US copyright office
- register within three months of publication
USING COPYRIGHTS
Licensing
- Blanket license - you pay a certain amount every year
- Performance license - make money using someone else's work (based on the contract)
- Master Use license
- Compulsory license - you keep track and pay royalties on it / a "pay as you play" license (i.e. Ringtones)
+ Moral Rights - international copyright law, the Burnn Convention
Ah ….Bobby…Bobby….
"He should be sitting in this class…"
INFRINGEMENT
Plaintiff must prove:
- Ownership of copyright
- violation of that ownership by defendant
- that defendant had access (the reason artists won't listen to others demos to keep them from saying you stop their sound/music)
- substantial similarity
"When they were writing the constitution…they weren't thinking about embedded video" - Dr. Mary N.
DAMAGES:
Types of infringement:
- Direct infringement
- Contribution Infringement
- Vicarious infringement
Damages Awards:
Statutory - must prove loss of income.
Punitive Damages - actual malice or intentional harm.
FAIR-USE
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion
- The effect of the use on the potential market for the copyrighted work.
UNFAIR COMPETITION
Misappropriation - Using someone else's PRODUCT as your OWN
Trademarks - A word, name or symbol, used to identify a product. "Give me a Kleenex…oh would you like a Puffs instead"
Service marks - Associate a product with a specific service.
Registration - ® According to Lanham Trademark Act, this trademark is registered
™ / SM means Trademark/Servicemark is Pending.
"Finger-licking good" can be service marked
They have to be unique enough to be different
Registration must be renewed every ten years
Parody - just making fun of something
Satire - draw attention back to themselves, taking their work and turning it into something else
One Back-up copy for yourself is allowed
Amount and substantiality of the work
Weather you're taking the "meat" of it.
Inherently Distinctive Marks - to be registered a mark has to be distinctive
Infringement - infringement of trademark is thought to confuse the consumer
Dilution - Continued use of similar trademark will dilute the strength of Trademark
Abandonment - A trademark lasts as long as it is being used
Trademarks:
"If I asked you how many of you have tried coke, most of you would think of a soft drink…i sure hope."
** DUE THURSDAY (right after fall break) Read & Brief the Case she emailed us**
Tuesday, October 9, 2012
Copyright
Libel, Invasion of Privacy
Need to know the differences!
and test also covers copyright.
"In Libel law a private person has to prove what level of fault? Negligence..but if you want punitive damages (punishment) then you have to prove actual malice..even a private person)
Copyright
Part of the Constitution BEFORE the First Amendment was passed.
Article 1, Section 8
Intellectual property recognized by Constitution: Inventions, Writings
Copyrightable Works
"original works of authorship fixed in any tangible form of expression…from which they can be perceived, reproduced, or otherwise communicated."
Ideas cannot be copyrighted…has to be TANGIBLE!
allows creatives to maintain control of it.
Six Rights under Copyright Law
- right of reproduction of the work
- right of preparation of derivative works
- right of public distribution of the work
- right of public performance of the work
- right of public display of the work
- right of public digital performance of a sound recording
Materials that can be copyrighted include:
Literary or musical works
Dramatic works, including accompanying music
Pantomimes and choreographic works
pictorial, graphics and sculptural works
motion pictures
sound records
"There's only so many letters in the alphabet--like what? 24 or 26?"
in discussing copyrights and slogans
###
Materials that cannot be copyrighted included:
Facts:
News Events
Telephone books and databases
Collective works
Derivative Work
OWNERSHIP
- Author
- Joint ownership (split equally)
- work for hire (you sign off the rights and the company owns it)
- freelance (you record it and they buy it…I still own the footage)
- government ownership
- states have limited right to copyright documents
Terms of Protection
Works created BEFORE January 1, 1978
- protected by copyright for 95 years
Works created AFTER 1978
- protected for life of the author or creative plus 70
Joint Ownership
- protected for life of the last living creator plus 70 years
Works for hire
- protected for 95 years after publication
Business works
- protected for 120 years from creation or 95 years from date of publication
Thursday, October 4, 2012
Privacy, Ethics, Laws
Differences between libel and invasion of privacy << know them!!
Public records are not invasion of privacy, no matter how long ago the record was..recorded.
Retrospectives: if you're gonna dredge up old news..there better be a good public interest to justify it.
(under revealing personal private facts)
Offensive Material
* If it is determined private facts received publicity, a court then asks:
1. Is the material offensive to a reasonable person, not someone who is overly sensitive?
2. Is the published material of legitimate public concern?
What is a legitimate public concern?
a. How much public interest or importance is there in the material?
b. How deeply do these facts intrude into an individual’s privacy?
c. How public or private is the individual in the story?
Ethics and Privacy
Ethics Code of the Society for Professional Journalists (SPJ):
“Recognize that gathering and reporting information may cause harm and discomfort. Pursuit of the news is not a license for arrogance.”
Journalists should “show good taste,” and “avoid pandering to lurid curiosity.”
Recounting the Past
* Two kinds of lawsuits arise about the past:
1. A news story, book or TV documentary that simply recounts the past
2. “Where they are now” stories; pushes beyond history
Private Facts on the Internet
The disclosure of private facts on the Internet is treated by the courts in the same
way as publication in a newspaper
"I could just dream..I don't care if it was a beach or a mental institution!"
3. Intrusion
(placing yourself into someone else's business)
Taking pictures from street of man beating his wife..(so hypothetical)
-Trespass
-Eavesdropping to overhear a conversation
-Gathering personal information from an individual’s private records (a biggie is medical records)
-Using a telephoto lens
Child star, growing up and getting busted for crack & drugs:
"Is he intentionally back in the news? No, he's just an idiot"
No Privacy in Public
-There is no expectation of privacy in public
-Anything visible or audible by any person in the vicinity is public, not private
-No expectation of privacy in places where people gather
Hidden Recording Devices
Ethical guidelines for when to use hidden recording devices:
-Information is of profound importance
-All other alternatives exhausted
-Apply excellence needed to pursue the story fully
-Harm prevented outweighs harm caused by the deception
-Journalists involved have conducted a meaningful, collaborative and deliberative decision to justify deception
TN – One person must know about recording
Publication of Information Obtained Illegally
Journalists can use illegally gathered material given them
Journalists cannot use information they have obtained illegally
Intrusion and the Internet
No expectation of privacy when information voluntarily made accessible
4. False Light Privacy
Made public
About the plaintiff
Substantially false
A woman was walking out of a funhouse and a photographer took a picture.. it wasn't libel because that's what she looked like.. but it was offensive to a reasonable person & totally humiliated.
Illegal to publicize material that places an individual in a false light if:
1. offensive to a reasonable person (embarrassment is enough) and
2. The publisher of the material was at fault when the publication was made
In rules of journalism & photography:
"Yeah, I'd be careful doing any 'Hooker in High school' stories.."
Comparisons to libel
False light and Libel both require level of falsity
Libel must damage reputation
False light can merely cause embarrassment/humiliation
Distortion:
Most common false light claim against media.
information is omitted OR
information is used out of context
Fictionalization
The purposeful distortion of the truth for dramatic purposes
Minor Falsehoods
* Most false light cases result from:
Simple editing or writing errors, and/or
Misuse of photographs and video
Obvious falsehoods
Hard to win if comment is obviously false
The Fault Requirement
Plaintiffs required to prove actual malice in false light cases involving issues of public importance.
DEFENSES (used by the media):
First Amendment - right to publish information of public interest.
newsworthiness
consent – implied/explicit
(Truth is not always a defense in a false light case)
5. Emotional Distress and Personal Injury:
New area beyond defamation and invasion of privacy. Not tested.
courts have stated that plaintiffs can claim this:
. . .when another’s conduct is “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Intentional Infliction of emotional distress. Can possibly prove intention harm.-conduct was intentional or reckless
-conduct was extreme and outrageous
-conduct caused the plaintiff emotional distress
-emotional distress was severe
Supreme Court requires for a claim of Intentional infliction of emotional distress:
1. that the information be stated as fact, not opinion
2. that it is a false statement of fact
3. that the person writing or making the statement knew it was false, or exhibited reckless disregard for the truth or falsity of the material.
In other words. . .now, even for Emotional distress must demonstrate actual malice.
Fictionalization
Time (Life Magazine) v. Hill
Absolute Privilege & Qualified Privilege
Absolute Privilege - the info was presented in a protected environment. "They heard me (falsely) accuse the defendant of being the murderer" You can reported because you were in the context of an official legal proceeding: during a case in a courtroom.
Qualified Privilege: Reporting on anything that happens in a legal proceeding. (but can't editorialize)
Neutral Reportage: a usually reliable source screws up.
Right of Reply:
what kind of access does a person have to replay to Oprah's negative comment about you.
Public records are not invasion of privacy, no matter how long ago the record was..recorded.
Retrospectives: if you're gonna dredge up old news..there better be a good public interest to justify it.
(under revealing personal private facts)
Offensive Material
* If it is determined private facts received publicity, a court then asks:
1. Is the material offensive to a reasonable person, not someone who is overly sensitive?
2. Is the published material of legitimate public concern?
What is a legitimate public concern?
a. How much public interest or importance is there in the material?
b. How deeply do these facts intrude into an individual’s privacy?
c. How public or private is the individual in the story?
Ethics and Privacy
Ethics Code of the Society for Professional Journalists (SPJ):
“Recognize that gathering and reporting information may cause harm and discomfort. Pursuit of the news is not a license for arrogance.”
Journalists should “show good taste,” and “avoid pandering to lurid curiosity.”
Recounting the Past
* Two kinds of lawsuits arise about the past:
1. A news story, book or TV documentary that simply recounts the past
2. “Where they are now” stories; pushes beyond history
Private Facts on the Internet
The disclosure of private facts on the Internet is treated by the courts in the same
way as publication in a newspaper
"I could just dream..I don't care if it was a beach or a mental institution!"
3. Intrusion
(placing yourself into someone else's business)
Taking pictures from street of man beating his wife..(so hypothetical)
-Trespass
-Eavesdropping to overhear a conversation
-Gathering personal information from an individual’s private records (a biggie is medical records)
-Using a telephoto lens
Child star, growing up and getting busted for crack & drugs:
"Is he intentionally back in the news? No, he's just an idiot"
No Privacy in Public
-There is no expectation of privacy in public
-Anything visible or audible by any person in the vicinity is public, not private
-No expectation of privacy in places where people gather
Hidden Recording Devices
Ethical guidelines for when to use hidden recording devices:
-Information is of profound importance
-All other alternatives exhausted
-Apply excellence needed to pursue the story fully
-Harm prevented outweighs harm caused by the deception
-Journalists involved have conducted a meaningful, collaborative and deliberative decision to justify deception
TN – One person must know about recording
Publication of Information Obtained Illegally
Journalists can use illegally gathered material given them
Journalists cannot use information they have obtained illegally
Intrusion and the Internet
No expectation of privacy when information voluntarily made accessible
4. False Light Privacy
Made public
About the plaintiff
Substantially false
A woman was walking out of a funhouse and a photographer took a picture.. it wasn't libel because that's what she looked like.. but it was offensive to a reasonable person & totally humiliated.
Illegal to publicize material that places an individual in a false light if:
1. offensive to a reasonable person (embarrassment is enough) and
2. The publisher of the material was at fault when the publication was made
In rules of journalism & photography:
"Yeah, I'd be careful doing any 'Hooker in High school' stories.."
Comparisons to libel
False light and Libel both require level of falsity
Libel must damage reputation
False light can merely cause embarrassment/humiliation
Distortion:
Most common false light claim against media.
information is omitted OR
information is used out of context
Fictionalization
The purposeful distortion of the truth for dramatic purposes
Minor Falsehoods
* Most false light cases result from:
Simple editing or writing errors, and/or
Misuse of photographs and video
Obvious falsehoods
Hard to win if comment is obviously false
The Fault Requirement
Plaintiffs required to prove actual malice in false light cases involving issues of public importance.
DEFENSES (used by the media):
First Amendment - right to publish information of public interest.
newsworthiness
consent – implied/explicit
(Truth is not always a defense in a false light case)
5. Emotional Distress and Personal Injury:
New area beyond defamation and invasion of privacy. Not tested.
courts have stated that plaintiffs can claim this:
. . .when another’s conduct is “so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Intentional Infliction of emotional distress. Can possibly prove intention harm.-conduct was intentional or reckless
-conduct was extreme and outrageous
-conduct caused the plaintiff emotional distress
-emotional distress was severe
Supreme Court requires for a claim of Intentional infliction of emotional distress:
1. that the information be stated as fact, not opinion
2. that it is a false statement of fact
3. that the person writing or making the statement knew it was false, or exhibited reckless disregard for the truth or falsity of the material.
In other words. . .now, even for Emotional distress must demonstrate actual malice.
Fictionalization
Time (Life Magazine) v. Hill
Absolute Privilege & Qualified Privilege
Absolute Privilege - the info was presented in a protected environment. "They heard me (falsely) accuse the defendant of being the murderer" You can reported because you were in the context of an official legal proceeding: during a case in a courtroom.
Qualified Privilege: Reporting on anything that happens in a legal proceeding. (but can't editorialize)
Neutral Reportage: a usually reliable source screws up.
Right of Reply:
what kind of access does a person have to replay to Oprah's negative comment about you.
Tuesday, October 2, 2012
Privacy
LAW
CLASS EXAMPLE:
"Oh it was full of snark"
INVASION OF PRIVACY
Libel - must be false/must damage reputation
Privacy – not necessarily false and can protect feelings
4 Categories of Invasion of Privacy
1. Appropriation/Commercialization
(stealing my face to promote their product)
2. Revealing Personal private facts
3. Intrusion
- trespassing, spying on somebody on the farm
4. False Light
- has to be primarily/substantially false, look like it's false, hold you up to some humiliation because of its interpretation
1. Appropriation/Commercialization
Using an individual’s name or likeness for commercial /trade purposes without consent
Two rights involved:
1. Right to Privacy –a personal right
2. Right of Publicity – a property right – protects economic value of name or likeness
"we can take our own pictures and make our own money"
Video/Photo issues: Individuals? not so much but Disneyland or Elvis
News and Information Exception
Individuals cannot sue for appropriation in a news story
Booth Rule
The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content.
"You can buy anything" Pay for the rights.
Consent as a Defense
Written consent is generally uncontestable
Oral consent does not offer the same protection; it can be easily contested
When Consent Won’t Work
1. Consent today may not be valid in the distant future
2. Some persons (minors, wards of the state) cannot give consent
3. Consent to use a photograph does not apply if image is altered or changed
Life After Death
The right to privacy is a personal right that dies with the individual
Several states have laws stating a right to publicity may live on after death
2. Revealing Personal Private Facts
-Truth is not a factor
damages are not lessened by retraction (can’t take back embarrassment)
"She gave me a D on that paper..i'm gonna print out these fliers that reveals that she has AIDS"
-Easier to prove embarrassment than actual damage to reputation
It is illegal to publicize private information if facts:
-Would be highly offensive to a reasonable person,
-Are private, and
-Not of legitimate public concern
It's not illegal to reveal a rape victim, but it is generally not shown/told.
Private facts –
not known to the public
not public record
not precious revealed by person
not taking place in public
not in view of public
Can report most anything that happens or is seen in public.
Publicity in privacy law differs from publication in libel law
Publicity—communication of information to a large number of people
Publication—the communication of information to a single third party
CLASS EXAMPLE:
"Oh it was full of snark"
INVASION OF PRIVACY
Libel - must be false/must damage reputation
Privacy – not necessarily false and can protect feelings
4 Categories of Invasion of Privacy
1. Appropriation/Commercialization
(stealing my face to promote their product)
2. Revealing Personal private facts
3. Intrusion
- trespassing, spying on somebody on the farm
4. False Light
- has to be primarily/substantially false, look like it's false, hold you up to some humiliation because of its interpretation
1. Appropriation/Commercialization
Using an individual’s name or likeness for commercial /trade purposes without consent
Two rights involved:
1. Right to Privacy –a personal right
2. Right of Publicity – a property right – protects economic value of name or likeness
"we can take our own pictures and make our own money"
Video/Photo issues: Individuals? not so much but Disneyland or Elvis
News and Information Exception
Individuals cannot sue for appropriation in a news story
Booth Rule
The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content.
"You can buy anything" Pay for the rights.
Consent as a Defense
Written consent is generally uncontestable
Oral consent does not offer the same protection; it can be easily contested
When Consent Won’t Work
1. Consent today may not be valid in the distant future
2. Some persons (minors, wards of the state) cannot give consent
3. Consent to use a photograph does not apply if image is altered or changed
Life After Death
The right to privacy is a personal right that dies with the individual
Several states have laws stating a right to publicity may live on after death
2. Revealing Personal Private Facts
-Truth is not a factor
damages are not lessened by retraction (can’t take back embarrassment)
"She gave me a D on that paper..i'm gonna print out these fliers that reveals that she has AIDS"
-Easier to prove embarrassment than actual damage to reputation
It is illegal to publicize private information if facts:
-Would be highly offensive to a reasonable person,
-Are private, and
-Not of legitimate public concern
It's not illegal to reveal a rape victim, but it is generally not shown/told.
Private facts –
not known to the public
not public record
not precious revealed by person
not taking place in public
not in view of public
Can report most anything that happens or is seen in public.
Publicity in privacy law differs from publication in libel law
Publicity—communication of information to a large number of people
Publication—the communication of information to a single third party
Thursday, September 27, 2012
Turner v Dolcefino Discussion
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
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
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
Thursday, August 30, 2012
Intro to Media Law
Media Law: Freedom of Expression
The Legal System
4 Jurisdictions of Law
1. International Law
2. Federal Law
A. Constitutinoal Law
B. Federal Statutes (Satutory Law)
C. Administrative Law (FCC, FDA, etc)
3. State Law
4. Local Law
** Read the Westboro Article (on Pipeline) **
(in discussing the Murfreesboro mosk)
"The jusge was villified by locking up these God-fea....good people..."
Court Systems
Trial Court - court of original jurisdiction
-fact finding court that hears evidence
-can use juries or judge only
Appellate Court - reviews process of trial
-everyone has a right to one appeal
-no new evidence can be presented
-no juries
The Federal System: (must involve Federal Law)
Federal Trial court - U.S. District Court
Federal Appellate Court - US Court of Appeals (are in curcuits)
Supreme Court - Court of Last Resort (no right to appeal to this court)
Two ways to hear cases:
1. Direct Appeal - e.g. conflict with Constitution rights. (14th Ammendment, Civil Rights is one of the more common reasons for direct appeal, along with the 1st ammendment)
2. Writ of Certiorari - Parties involved must request their case be heard
-Rule of Four (4 members of the supreme court must agree to hear case)
-Cert is either granted or denied
The State System: (must involve State Law)
States similar to Federal system.
Trial court [civil (pay money, person against person) criminal (jail time, state vs person)]
Appellate court
Supreme (or Superior) Court.
LAWS
Legislative Branch - makes laws and policy
Executive Branch - protects and enforces laws
Judicial System - determines if laws or policies have been violated
Types of Law:
Constitutional Law - Supreme law of the land. No other law can contradict (states can also have state constitutions)
Statutory Law - passed by legislators (elected officials)
Executive Actions - operations law
Administrative Law - Federal Agencies
Common Law - law formulated by justices "just because it's right" like laws you can't eat ice-cream in church on Sunday..says a judge.
Equity Law - "what's fair is fair" old school.
Two sources of Litigation:
Criminal Law - involves fines or jail.
Civil Law - damages only
- individual vs individual
Lawsuits:
Civil Suit: Plaintiff - initiates civil action
Defendant - person accused
Appeal - person seeking appeal is the appellant; other is respondant
US v Nichols - US is the plaintiff. The plaintiff (complainer) is always listed first.
Someone v US - so someone's bringing the case and is an appellant case (but can also be US vs Someone in an appellant court if US didn't like the origional ruling)
Criminal Suit:
Charges are brought by the state
Arraignment - is a formal reading of the charge and defendant gives plea
If guilty - judge determines sentence
If not guilty - trial is set
Appellate Court - was trial held in a fair manner - no new evidence
Supreme Court - No evidence, witnesses, testimony. Constitutional issues only
Supreme court/Appellate Court decisions
** Write a brief about the Westboro Case **
Giving em just the facts..wade through the case and pull out the pertanant stuff.
The opioinn of the court, 8 justesices held that...
in the decenting opionon, on ejustice held that (summerized their opion)
anyhting u feel important
no more than a page and a half
(typed, printed (don't email)
* *Read Chapter 2**
Opinion of the court - written by one judge and joined by a majority of others
Dissenting Opinion -when one or more judge disagrees with the majority
"well, I disagree because"
Concurring Opinion - one or more judge(s) agree with the outcome of the case but for different reasons. . or to add thoughts or comments to the opinion of the court. Can have several dissenting and/or concurring opinions.
Majority opinion - at least 5 votes. If any in the majority write a concurring opinion, it weakens the strength of the precedent
Plurality opinion instead of a majority opinion if less than 5 judges agree.
Per Curium is an opinion that is usually brief and unsigned. This is the part of the opinion all agreed on.
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