Congress shall make no law respecting an establishment of religion; or abridging the freedom of speech or of the press; or of the right of the people to peaceably assemble and to petition the government for a redress of grievances.
the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury . . . and . . . to be confronted by the witnesses against him; and to have a compulsory process for obtaining witnesses in his favor.
No state . . . shall deprive any person of life, liberty (including free expression) or due process of law. Interpreted in Gitlow v. NY in 1925 as protecting free expression from infringement by state and city governments.
Judge made law. Origins in England in the 12th and 13th Centuries when law was first developed. Disputes were initially settled according to custom (community custom), thus common throughout England or . . . common law (as distinguished from church law). Today, common law or case law is the custom of the court, based on precedent (what has happened in the past).
Legislative law, laws passed by Congress, state legislatures, city councils etc.
That which is written into the constitution and the amendments. Constitution is the Supreme Law of the Land.
Legal pronouncements by political executives. Elected officials from the U.S. president to mayors have limited powers to issue executive orders. (Bush II administration & signing statements)
let the decision stand. Common law or law based on precedent.
non-criminal law, involves individual private parties (companies, even government in limited cases) suing for some legal relief.
involves government prosecution of private individual on behalf of society; punishment usually fine or imprisonment (proof beyond a reasonable doubt required)
power to enforce laws . . . may be territorial or subject-matter related . . . i.e. broadcast, cable, copyright, patents, access issues are under federal jurisdiction; privacy, reputation, zoning, unfair competition, access to state & local government are under state jurisdiction; trademarks, corporate speech, advertising, antitrust and obscenity may be under both state and federal jurisdictions.
civil or criminal court where most cases begin; hears evidence and determines facts of the case.
law reviewing courts, consider whether or not the law has been properly applied in the trial court in light of the facts.
the first court to hear. The USSC is normally an appeallate court with original jurisdiction in limited cases, such as in the event of a legal dispute between two states.
cases appealed from other courts either by direct appeal or through a writ of certiorari. Most reach SC by way of a writ of cert, an order from the SC to a lower court that the records of the case be sent forward. Any party may request a writ as long as all possible legal remedies have been exhausted (i.e., a vagrant convicted by a municipal court with no direct appeal process may request a writ.) Four out of nine justices must vote to hear a case for a writ to be granted.
Writ of certiorari
(Certiorari) - Certiorari, meaning in Latin to "be more fully informed," is the procedure used by the Supreme Court and appellate courts to review the cases they hear. After receiving an appeal, the court decides whether to grant certiorari and review the lower court's case. If it grants certiorari, or "cert," then the higher court reviews the case. If the court denies cert, then the lower court ruling stands. In the Supreme Court, the votes of four justices are required to grant certiorari.
person bringing the suit, seeking some sort of relief or compensation.
in a civil case, person against whom suit is being filed; in a criminal case, the person being prosecuted
Per curiam decision
unsigned opinion representing an opinion of the court as a whole.
Basic Books v. Kinko's
ruled that Kinko's practice of copying articles and compiling them into custom textbooks to be sold to college students was an infringement.
Harper & Row v. Nation
ruled that Nation's publication of an excerpt from an unpublished book by Gerald Ford -- approx. 300 words about Ford's pardon of Nixon -- was not fair use. Based largely on right of first publication and the quality rather than quantity of the selection -- Ford's discussion of the controversial pardon was the heart of the book, the selling point.
Campbell v. Acuff-Rose Music, Inc.
parody case involving 2 Live Crew's parody of Roy Orbison's "Pretty Woman." SC supported the idea that the use was a parody protected by Fair Use even though a commercial.
The World Intellectual Property Organization
an agency of the United Nations; conference in 1996 adopted treaties granting copyright owners protection for distribution of their works in digital form (includes art, literature, film, computer software, and recorded music). WIPO administers the Berne Convention (80 countries) and the Universal Copyright Convention (70 countries).
an international copyright treaty, which the U.S joined in 1988. Applies international intellectual property restrictions to all member counties. The Universal Copyright Convention, 1955, is a similar agreement. Both are international agreements to respect copyright laws of member countries.
Digital Millennium Copyright Act
incorporates much of what was in the WIPO treaties.
• Prohibits circumvention of technology which controls access to copyrighted material on the internet.
• Outlaws manufacture of devices which are intended to circumvent controls.
• Exempts internet service providers from copyright liability for transmitting materials others have put onto the internet.
• Imposes a compulsory licensing/royalty scheme for the transmission of music on the internet.
A&M Records v. Napster
Napster provided the framework for peer to peer file sharing through a central server. Court ruled it was a contributory infringer and shut it down.
MGM v. Grokster
ruled that the act of distributing and promoting a product/software with the clear intent of fostering copyright infringement is liable for the resulting acts of infringement by others . . . inducement theory of contributory copyright infringement. This even though Grokster only provided software for users to share peer to peer.
body of law dealing with intangible property (intellectual property), which exists to protect the original/intellectual creations of authors, composers, artists, inventors, playwrights etc.
as opposed to copyright, patents protect utilitarian type items; includes protection for three different kinds of items:
1. Items which have utility such as a machine or process (typewriter or a way of reducing noise on an audiotape).
2. Design of an item, a piece of furniture for example.
3. Plants which are reproduced by cutting & grafting.
word, symbol, device or combination of the three that differentiates a company's goods and services from those of competitors.
Federal Dilution Trademark Act
protects trademark owners from use of the same or similar trademark even on dissimilar products. Previously, for example, someone could not have used the Walkman name on a portable CD player but could have used it on a treadmill or other machinery.
the act of taking ideas, thoughts, or words from someone and using them/passing them off as your own
copyright law protects only original creations or those, which owe their origin to the creator. A transcript of a trial cannot be copyrighted, for example, because it has no original element; a Christmas parade cannot by copyrighted because it is a common idea; raw footage can be copyrighted because there is originality in its shooting.
Work made for hire
When working for someone else and you create a copyrightable work, unless there is an agreement to the contrary the work belongs to the employer; works for hire are protected for either 95 years from publication or 150 years from creation.
Eldred v. Ashcroft
U.S. Supreme Court upheld the Bono Copyright Term Extension Act which provided continued protection of copyrights held by companies such as Disney. Extended time limits by 20 years, life plus 50 years to life plus 70 years. Works for hire were extended to 95 years from publication or 120 years from creation.
collection of existing non-original, non-copyrightable materials may be protected if it requires some creativity in selecting and assembling, but not just because it was a lot of work.
or compilations of original, copyrighted or copyrightable pieces include original processes [selection, editing, etc.] and are copyrightable as a collection.
based on preexisting works and are copyrightable with the addition of sufficient originality. However, the original owner holds the right to create derivative works.
Feist Publications v. Rural Telephone Service Co., Inc.
- ruled that a list of names in a telephone directory is not copyrightable. Feist did not need permission to take names from Rural Telephone Service Company's directory and publish them in its own directory. Eliminated the "sweat of brow" argument. Labor invested to gather information does not give ownership when there is no original creation.
Miller v. Universal Studios
provides the current definition of obscenity:
1. An average person, applying contemporary local [not national] community standards, finds that the work, taken as a whole appeals to prurient interest.
2. The work depicts in a patently offensive way sexual conduct specifically defined by state law.
3. The work in question lacks serious literary, artistic, political, or scientific value.
the word Copyright, Copr., ©, the year of publication, and the name of the copyright holder - Copyright © 2001 Joe Doakes; not required under agreements of the Berne Convention.
largely common law which prevents one from either trying to pass off his/her work as the work of someone else, or trying to pass off the work of someone else as their own. A radio station which reads its news from a local newspaper, thus gaining an unfair advantage, would be guilty of misappropriation and unfair competition.
Fair use doctrine
provision of copyright law, which permits limited copying of protected materials for productive purposes such as criticism, comment, news reporting, teaching, and scholarship or research.
Judge's power to control what goes on inside his/her courtroom . . . punishable by a fine or time in jail. the extreme exercise of which is summary contempt power - the judge's power to accuse, find guilty and sentence in one blow of the gavel.
Summary contempt power
the judge's power to accuse, find guilty and sentence in one blow of the gavel
punishment used to protect the rights of a private party in a legal dispute, i.e., a reporter refusing to divulge a source gets jail time 'til compliance.
U.S. v. Dickinson
reporter ignored a judge's gag order and printed a story, reporter was cited for contempt, court of appeals struck down the judge's gag order but upheld the contempt citation.
contempt citation may stand even though a court order which resulted in the citation is later ruled invalid. (Not accepted in all jurisdictions).
punishment used to protect law, authority of the court, or power of the judge, i.e. reporter takes photo after judge orders no photos, or reporter tries to talk with a juror
Press Enterprise v. Riverside Superior Court (I and II)
ruled that the public and the press have the right to attend the voir dire process.
Press Enterprise v. Riverside Superior Court
opened pre-trial hearing except when . . .
1. It is proven that there is substantial probability that the defendant's right to a fair trial will be prejudiced by publicity.
2. A reasonable alternative to closure cannot protect defendant's rights.
Globe Newspapers v. Superior Court
Struck down a Massachusetts state law that required closure of trials during testimony of juvenile victims of sexual offenses. Said trial closure would need to meet strict scrutiny standards: compelling government interest, narrowly tailored for a specific situation. Note that this decision does not require open testimony in these cases, simply says a state law cannon mandate closure under any and all situations.
Free Flow of Information Act
federal shield law . . . with certain conditions would protect reporters from having to reveal confidential sources; introduced in Congress every year for the past several years; is yet to pass.
Promise of Confidentiality & Promissory Estoppel
law intended to prevent an injustice when someone fails to keep a promise . . . a promise on which someone has relied. Applied in Cowles v. Cohen.
1. defendant made a definite promise
2. defendant intended the promise and the plaintiff relied on the promise
3. upholding of the promise is required to prevent an injustice
Cohen v. Cowles
Dan Cohen offered information to reporters re a Democratic candidate for lieutenant governor. Reporter promised to not reveal Cohen's identity. The reporter's editor overruled her decision, citing a company policy, and printed the Cohen's name. Cohen sued for breach of contract . . . trial court awarded him $200,000 compensatory and $500,000 punitive under state laws re promissory estoppel. Minnesota Court of Appeals affirmed, but threw out punitive damages. Minnesota Supreme Court reversed the decision of the trial court. USSC reversed Minnesota Supreme Court ordering them to reconsider the promissory estoppel statute, noting that enforcement would not be a violation of the First Amendment. They then upheld the jury decision and the $200,000 award.
Branzburg v. Hayes
Branzburg was a reporter for the Louisville Courier-Journal. He did a story about making hashish from marijuana and about drug use in Frankfort County. He was called to testify before a grand jury, refused, and lost argument . . . appealed to USSC. RULING: Reporters do not have a right of confidentiality, no special privilege.
Richmond Newspapers v. Virginia
case the SC heard to clarify the ruling in Gannett. Overruled interpretation of Gannett as allowing closure of criminal trials. Said the public right to attend criminal trials is guaranteed by common law and the First Amendment. Requires extreme circumstances in order to close a criminal trial. Upholds interpretation of Gannett as allowing closure of pre-trial hearings.
Gannett v. DesPasquale
Supreme Court upheld an order banning a reporter from a pre-trial hearing . . . resulting in an avalanche of closings, and disagreements on the part of the justices re the interpretation.
Nebraska Press Association v. Stuart
trial of a man charged with six murders, restricted information during pre-trial, later only restricted confession. SC ruled that the restrictive (gag) orders were unconstitutional, saying . . . There must be a clear and present danger to defendant's rights in order for such an order to be allowed.
(Standards Relating to Fair Trial and Free Press) - report following the Sheppard case in which it was recommended that in order to ensure defendants in a sensational trial a fair hearing (1) lawyers and judges involved in the trial should not talk to the media, and (2) judges should use their restrictive powers and contempt citations against those who violate the restrictive orders.
Restrictive (Gag) order
measures used by a court to protect a defendant's right to a fair trial; usually involves either gagging media directly or restricting what trial participants are allowed to say.
a compensatory remedy intended to prevent jurors from being exposed to prejudicial publicity by isolating the jury during the course of the trial, usually in a hotel.
a compensatory remedy intended to prevent jurors from being exposed to prejudicial publicity in which members of the jury are "admonished" or instructed not to ready about, discuss, or otherwise consume media related to the ongoing trial.
compensatory remedy for prejudicial publicity in which the trial is postponed for a period of time until publicity dies down and a defendant may be more likely to receive a fair trial.
Change of venue / change of verniremen
compensatory remedies for prejudicial publicity; change of venue is when the trial is moved; change of veniremen is when the trial is kept in the same location, but the jury is chosen at a different location and imported daily to the trial site.
the questioning of jurors in the pre-trial process; a compensatory remedy for prejudicial publicity in which potential jurors with bias or prejudice are excused from serving on the jury. (for cause, peremptory)
Sheppard v. Maxwell
controversial trial in which conviction of Sheppard was overturned due to prejudicial publicity . . . . in which decision criticized the judge for not controlling the courtroom. Sheppard was a wealthy doctor in the Cleveland suburb of Avon Lake. His wife was killed while he was downstairs sleeping on the couch. He claimed he heard a noise, ran upstairs, fought with the assailant, was knocked unconscious by a figure huddled over his wife's bed. Press sensationalized Sheppard's affair with a nurse, quoted a judge as saying he was "guilty as hell," questioned why he had not been arrested and brought to trial, printed names of jurors and urged readers to call or write. Sheppard was convicted, overturned, re-tried, acquitted.
information that has the potential of affecting a defendant's right to a fair trial (Sixth Amendment).
KQED v. Vasquez
federal court upheld the prohibition on television coverage of executions.
Chandler v. Florida
ruled that cameras do not prevent a fair trial and that states may allow their presence in the courtroom. If a state allows cameras, their presence does not violate the constitutional guarantee of a fair trial. / If a state denies cameras, it is not a violation of the First Amendment.
Estes v. Texas
SC ruled that the First Amendment did not give the press the right to take photographs during a trial, but did say that at some point in the future when technology was not so obtrusive it might be allowed. Decision said:
1. Cameras interfere with jury - pressure due to exposure.
2. Interfere with witnesses - intimidating.
3. Impact on judge - burden of control.
4. Impact on defendant - harassment.
Federal Sunshine Act
federal open meetings law; applies to approximately 50 federal agencies, requiring that their meetings be conducted in public, that notices of meetings be give at least one week in advance, and that records be kept of closed meetings. Includes same nine exemptions as FOIA with the addition of a tenth exemption for meetings to discuss any legal arbitration involving the agency in question.
Homeland Security Act of 2002/Critical Information Infrastructure Act
response to 9/11 terrorist attacks; created the department of Homeland Security, reorganizing several government agencies under one director.
applies same rules as the original FOIA to electronic information. Includes same nine exemptions (see FOIA entry).
Freedom of Information Act
federal law providing access to all records held by federal agencies (except Congress and federal courts) with nine exemptions.
1. National security matters
2. Housekeeping - internal personnel rules and practices
3. Material exempted by statute, i.e. Nuclear Regulatory etc.
4. Trade secrets and financial information (SBA applications etc.)
5. Interagency memo and pre-decisional working drafts
6. Personnel and medical files, the disclosure of which would constitute an invasion of privacy
7. Law enforcement records can be exempted if:
a. interferes with law enforcement
b. would deprive a person of the right to a fair trial
c. would constitute an unwarranted invasion of privacy
d. identifies a confidential source
e. discloses enforcement techniques/procedures
f. endangers the life or safety of an individual
8. Financial records relative to banking/financial institutions
9. Geological and geophysical data (re maps, wells etc.)
Wilson v. Layne / Hanlon v. Berger
both involved cases in which law enforcement officers invited reporters/photographers to accompany them on arrests (Layne) or gathering evidence (Hanlon) on private property. Does not apply to ride-alongs etc. in public places.
Houchins v. KQED
similar to Pell and Saxbe, an inmate in a California jail committed suicide, and a psychiatrist's report said the jail conditions may have contributed to the suicide. KQED TV requested permission to film in the part of the jail where the inmate resided, but the sheriff refused. They were offered a regular jail tour, the same tour offered the general public. However, it did not include the portion of the jail where the suicide had taken place. KQED argued that it had a constitutional right to gather information and challenged the restriction. SC Decision: Neither the First nor Fourteenth Amendments mandate a right of access to governmental information or sources of information within governmental control. NOTE: the decision does not preclude access, just leaves it up to the prison superintendent.
Pell v. Procunier / Saxbe v. Washington Post
in separate cases reporters requested but were refused the right to interview specific prisoners ..... both were told they could tour prison facilities and even talk with prisoners at random, but could not interview specific prisoners.
Media argues the denial was a violation of First Amendment rights.
SC Decision: Reporters have no constitutional right of access to prisons or their inmates beyond that afforded the general public. Press have the right to print whatever they can get, but government has no obligation to provide legal access beyond that given the general public.
Zemel v. Rusk
one of the earlier cases addressing the issue of information gathering, a U.S. citizen is denied a passport to go to Cuba to gather information. Chief Justice Earl Warren wrote: the right to speak and publish does not include the right to gather information.
Right to gather information vs. right to disseminate
while the right to disseminate information is almost unlimited (Cox v. Cohn), there are significant limits on the information gathering process (Zemel v. Rush, Houchins v. KQED, Wilson v Layne etc.)
an opinion of the court publishing the vote without a written opinion.
the right of any court to declare any law or official governmental action to be invalid because it violates the constitution (Marbury v. Madison, 1803).
the belief that a judge's role is not to make policy but to interpret the law as written in the constitution or passed by congress or the states. (Also called strict constructionism.)
judges who create rights (enact legislation) not explicitly stated in the constitution or overturn laws based on their feelings that a statute is unfair or bad policy.
constitution means the same thing today as it did when it was drafted in 1787, making no allowances for societal change. Proponents may come at the view as either textualists, those who look only at the words as they were written, and intentionalists, those who attempt to interpret the intent of the founding fathers' words. Justice Scalia is both an originalist and a textualist.
one who is a proponent of a more flexible and alternative interpretation of constitution, allowing for changes in society and promoting the public good.
absolute or literal interpretation of the "no law" statement. Nothing should infringe on 1st Amendment rights. If other rights conflict, 1st takes priority.
Ad hoc balancing Theory
balancing 1st Amendment freedoms against other rights on a case by case basis (i.e., free press v. fair trial etc.)
Speech related to the self-governing process receives absolute protection [maximum scrutiny] 2. Speech not related to self-governing process balanced w/other rights. [minimum/intermediate scrutiny]
Preferred Position Balancing Theory
in balancing free expression with other rights, it is assumed that any limitation on speech or press is illegal. Free speech will be preferred; and other party must justify an infringement. Based on belief that the maintenance of all rights is based on freedom of speech and press.
Flag Protection Act
adopted by Congress in 1989, intended to counter the ruling in Texas v. Johnson that flag burning was a protected form of expression. Ruled invalid in U.S. v. Eichman/U.S. v. Haggerty. Said flag burning is an act of free expression protected by the First Amendment.
Fighting Words Doctrine
words that have a direct tendency to cause acts of violence by the person or persons to who the remark is made; doctrine
that which causes damage/harm to a person's reputation - or exposes that person to hatred, contempt, ridicule; or that which:
• Damages one's reputation.
• Causes one's friends to avoid them.
• Deprives one of the ability to earn a living.
printed defamation as opposed to slander which is spoken (Virtually all media defamation is tried as libel) . . . also a false allegation of fact that is disseminated about a person and that tends to injure that person's reputation.
civil wrongdoing giving injured party legal remedy in civil court: invasion of privacy, libel, trespass, negligence etc.
Civil complaint - punishment used to protect the rights of a private party in a legal dispute, i.e., a reporter refusing to divulge a source gets jail time 'til compliance.
Hustler v. Falwell
re a fictitious interview with Rev. Jerry Falwell in which it was said that "his first time" was with his mother in an outhouse. Included a small disclaimer. Falwell sued for libel, invasion of privacy, and infliction of emotional distress. Judge dismissed the privacy claim but sent the libel and emotional distress cases to court. Jury dismissed the libel claim noting that it was so farfetched, no one would believe it was intended as the truth; but awarded $200,000 in emotional stress damages; U.S. Appeals Court upheld; U.S Supreme Court reversed. Rehnquist said that though most would consider it repugnant, it was satire and satirists must be protected. Said that in order to win an emotional distress claim, it would have to be shown: 1. That the parody or satire amounted to a statement of fact, not opinion. 2. That it was a false statement of fact. 3. That actual malice was involved.
Time v. Hill
requires proof of actual malice (knowledge of falsity or reckless disregard for the truth) in a false light privacy case. Hills held hostage; book Desperate Hours written, stretching the facts; play based on book; magazine coverage of play related to Hill family, took photo in front of their house. etc. etc.
Leverton v. Curtis Pub. Co
Post ran a photo of a child at an accident scene with a story of pedestrian carelessness. Accident had been fault of driver . . . therefore false light
Cox v. Cohn
Court ruled that it is not an invasion of privacy to publish the name of a rape victim when that name is a part of public record during a trial; Florida Star v. B.J.F., 1989, extended to legally obtained information gotten from outside of court.
Dieteman v. Time Inc
ruled that photos taken inside a private home w/o knowledge were an invasion of privacy. Cameras and voice recording devices are inconsistent with a person's expectation of privacy inside his/her home. Later rulings have differed when the facts involved secret recordings inside a place of business.
Roberson v. Rochester Folding Box Company
Abigail Roberson's picture was reproduced on 25.000 copies of a poster advertising. She sued, but lost her case when the New York court ruled that there was no law of privacy. But the case generated such public outrage that the NY legislature passed the first statutory law of privacy making it illegal to use one's name or likeness for advertising or trade purposes without consent.
Pavesich v. New England Mutual Life Insurance Co
Atlanta artist Paolo Pavesich sued when his photo was used in a newspaper ad representing a happy, contented person with insurance. Georgia became the first state to recognize the right of privacy in common law when they awarded Pavesich $25,000 in personal damages due to the invasion.
Doe v. Cahill
ruled that an annonymous blogger need not be revealed unless the plaintiff can establish likelihood of prevailing in a defamation suit.
Zeran v. America Online
Court interpreted the Good Samaritan provision as providing total distributor/publisher immunity for ISPs: The provision "precludes courts from entertaining claims that would place a computer service provider in a publisher's role." While the total immunity stance has largely prevailed, some courts have returned to a traditional approach of requiring publisher responsibility.
Stratton Oakmont, Inc. v. Prodigy Services Co
cyber-libel ruling in which the ISP (Prodigy) was determined to be liable for defamatory statements published on its site because it had advertised to the public that it controlled the content of its bulletin boards and, in fact, screened out some content, therefore assuming the role of publisher rather than simply distributor.
Cubby v. CompuServ, Inc
early cyber-libel case in which it was ruled that the ISP (CompuServ) was not responsible for allegedly libelous statements made by a third party and posted on its online forum. CompuServ argued and the court agreed that it was an electronic distributor, not a publisher and therefore not liable.
Ollman v. Evans
ruled that it was an expression of opinion for columnists to have termed a college professor a Marxist and also to have said that a colleague rated him as having low status in his field. In determining that the statements in question were opinion, the court said that to be factually based the statements would have to be characterizable as either true or false.
Milkovich v. Lorain Journal
ruled that a statement, which has a factual connotation or which implies an assertion of object fact is not an opinion. In Milkovich, the assertion that someone had lied was ruled a statement of fact and not opinion. Writing for the Court, Chief Justice William Rehnquist said that "an expression of opinion may often imply an assertion of objective fact." He added that couching the accusation in such terms as "In my opinion, Jones is a liar," can cause as much damage to one's reputation as simply saying "Jones is a liar."
Time v. Firestone
Time magazine published a notice of the divorce of Russell Firestone from his wife on grounds of extreme cruelty and adultery. (Divorce was actually granted on the grounds that neither party was domesticated. Mrs. Firestone sued for libel. Time argued that she was a public figure because of all the publicity surrounding the divorce and that she should have to show actual malice. Court ruled that public controversy does not equate to public interest, that she did not voluntarily thrust herself into a public controversy, and that she would not have to show actual malice.
Gertz v. Welch
Elmer Gertz was retained by a Chicago family to bring civil action against a policeman who had shot and killed their son. Policeman had already been convicted of second degree murder. American Opinion magazine (Welch was publisher) ran an article saying Gertz was responsible for a frame-up of the policeman, that he was part of a Communist conspiracy to discredit local police, that he was a Leninist and a Communist . A jury found American Opinion guilty of libel per se & awarded Gertz $50,000. Court of Appeals ruled that because the American Opinion article concerned a matter of public concern (Rosenbloom), Gertz would have to show actual malice. Supreme Court reversed Rosenbloom saying private persons should not have to show actual malice as they do not have the same opportunity for rebuttal as public officials and public figures do. S.C. added that while private persons should not have to show actual malice to win, some form of fault should be required (to be set by states). Suggested a minimum of simple negligence or acting without reasonable care. S.C. then said that while private persons would not need to show actual malice to win a suit, such proof would be required in order to win punitive damages. S.C. decision also established two public figure categories:
All purpose or total public figure - someone with pervasive fame. Limited public figure - someone who has voluntarily thrust self into a public controversy with the intent to influence the outcome of that controversy.
Hepps v. Philadelphia Inquirer
ruling that changed the burden of proof requirement in libel law. Ruled that an individual suing the media for a damaging statement involving a matter of public concern is responsible for proving the statement false. Prior to this ruling, defendants in libel cases had to prove the truth of their statement(s).
Curtis v. Butts/AP v. Walker
applies the actual malice rule to public figures; and established the test for reckless disregard for the truth - urgency, source reliability, and probability.
New York Times v. Sullivan
public officials must show actual malice, actual malice defined as knowledge of falsity or reckless disregard for the truth. Justice Brennan: Free expression needs breathing space to survive. Ruling was the first step in doing away with strict liability - previous concept, which meant the defendant was responsible for the harm regardless of the cause. Brennan wrote, "Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
Schwarzenegger vs. Entertainment Merchants Association
ongoing case involving a California state law, which restricts the sale of violent video games to minors. The Entertainment Merchants Association and the Entertainment Software Association filed suit in federal court, alleging that the law was an impermissible restriction of speech in violation of the First Amendment. The district court and the Ninth Circuit ruled in favor of Entertainment Merchants. California appealed, asserting that the First Amendment does not protect the sale of violent video games to minors and that California need not show a direct causal link between violent video games and physical or psychological harm in minors before restricting such sales. The Supreme Court's decision will affect minors' constitutional rights, the power of states to control which materials children are exposed to, and the expression in media with violent content.
Snyder v. Phelps
ruled that the First Amendment protects fundamenalist church members who stage anti-gay protests outside military funerals. Decision favors members of the Westboro Church headed by Fred Phelps who regularly show up at military (and celebrity) funerals waving signs with slogans such as "God Hates Fags," "God Hates Fag Enablers," "Thanks God for Dead Soldiers," etc. They content that the deaths are punishment for America's increasing support of gay rights. Roberts wrote, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Brandenburg v. Ohio
law must distinguish between advocacy of ideas, and the incitement to unlawful conduct. (Targeted speech much be directed at inciting or producing imminent lawless action and be likely to produce or incite such action.)
BRANDENBURG INCITEMENT TEST
1. Does the expression advocate the use of illegal force or violence?
2. Is it directed toward actually inciting such iillegal conduct?
3. Would the advised conduct be imminent, or immediate?
4. Is the expression actually likely to produce the illegal conduct?
Schenck v. U. S.
Socialist Charles Schenck published pamphlets urging draft resistance. He was convicted (under sedition laws) and his conviction was upheld. In the ruling, Justice Oliver Wendell Holmes wrote that Schenck's publication would have been ok in normal times, but in a time of war constituted a "clear and present danger of substantive evil" to national security . . . thus, the clear & present danger doctrine.
Virginia v. Black
Asks if Virginia anti-cross burning law violates 1st Amendment. Under Virginia law, it is a felony "for any person or persons, with the intent of intimidating any person or group of persons, to burn or cause to be burned, a cross on the property of another, a highway or other public place . . . any such burning of a cross shall be prima facie (pry-muh fa-she) evidence of an intent to intimidate a person or group of persons." The SC ruled that a state has the right to ban cross burning done with the intent to intimidate (signals impending violence), but said the prima facie (pry-muh fa-she) evidence provision is unconstitutional . . . still may burn a cross for ceremonial purposes
R.A.V. v. St. Paul
Robert Victora and other youth burned a cross on the lawn of a black family in St. Paul, Minnesota. In addition to the usual trespass, damage to property laws, the teenagers were charged under a St. Paul ordinance which forbid the display of a burning cross or Nazi swastika or any writing or picture that arouses the anger, alarm or resentment in others on the basis of race, color, creed, religion or gender -fighting words. The U.S. Supreme Court struck down the St. Paul ordinance because it was content based -- specifying particular words that relate to race, creed, gender or sexual preference, while allowing other words. Justice Scalia wrote that while it is permissible to attempt to stop fighting words, the law cannot be used to prohibit speakers from expressing views on "disfavored subjects." He called it unconstitutional viewpoint discrimination.
Village of Skokie v. National Socialist Party
Group of American Nazis wanted to march in Skokie, which had a high percentage of Jewish residents. The village tried to prevent the march, arguing that the swastika constituted symbolic fighting words. The Illinois Supreme Court refused to enjoin the march noting the march could not be forbidden merely because it would offend residents, or because it could provoke a violent reaction by those who view it. The Court said no one was compelled to view or listen.
Gooding v. Wilson
Court ruled that fighting words laws must be restricted to words that have a direct tendency to cause acts of violence by the person to whom the remarks are made. Case struck down a Georgia state law, which provided that, "Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor."
Chaplinsky v. New Hampshire
defined fighting words as those which by their very utterance inflict injury or tend to incite an immediate breach of peace. In this case, a JW called a town marshal a G-damned racketeer and fascist, violating a state law forbidding derisive or abusive language. The decision stated: "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality."
U.S. v. Eichman/U.S. v. Haggerty
The two defendants burned flags to protest the passing of the Flag Protection Act. They were immediatedly arrested. Court, 5-4, struck down Flag Protection Act as unconstitutional, noting that flag burning was an act of free expression and thus protected by the First Amendment. Justice Brennan wrote, "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."
Kincaid v. Gibson
Federal court ruled that Kentucky State University officials had violated the First Amendment when they confiscated the student yearbook because of the book's content and quality. The decision here points to the tendency of courts to treat students at the university level more as they would adults in a professional media world.
Morse v. Frederick
SC ruled that school officials can prohibit students from displaying messages that promote illegal drug use. ["Bong Hits 4-Jesus"] Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use.
Layshock v. Hermitage School District
U.S. district court ruled that a student's First Amendment rights were violated when his principal suspended him for content on a personal MySpace page mocking the principal. The school claims that the MySpace page was subject to school disciplinary authority, even though the page was created at a private home outside of school time, and did not threaten violence or otherwise encourage any disturbance at the school. The court found that "[t]he mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the World Wide Web. Public schools are vital institutions, but their reach is not unlimited." The case is under appeal.
Doninger v. Niehoff
A federal appeals court ruled that a high school was within its rights to punish a student for writing critical comments about school administrators on the Internet. The 2nd U.S. Circuit Court of Appeals said Lewis Mills High School in Burlington, Conn., has a responsibility like any school to teach students the boundaries of socially appropriate behavior. "Vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school," the unanimous three-judge panel ruled in. She was disqualified from running for senior class secretary.
Doninger was disciplined after she used derogatory language to describe the administrators in a blog entry she made outside of school in April 2007.
"We have determined . . . that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct 'would foreseeably create a risk of substantial disruption within the school environment.'
Evans v. Bayer
Katherine Evans created an off-campus Facebook account in which she complained about "the worst teacher I've ever met." The public high school's principal chose to punish her by removing her from AP classes at the school and by suspending her for three days. She filed suit and a federal district court ruled that since her speech was neither disruptive (Tinker) or vulgar (Bethel) the prinicpal could not punish her. The case is important in that it signifies a movement toward protecting student speech while off campus.
Lovell v. Griffin
JW arrested for distributing pamphlets in violation of city ordinances. SC ruled that the ordinance was a violation of the First Amendment.
1. Included pamphlets under First Amendment protection.
2. Protects distribution of written materials.
Texas v. Johnson
Ruled that Gregory Lee Johnson's flagburning demonstration outside Republican National Convention in Dallas was an acceptable form of communications. Justice Brennnan wrote: "If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable."
Gitlow v. New York
Extends First Amendment protection by interpreting 14th Amendment as preventing abridgement of speech or press by state governments . . . extended to include local and regional as well.
Marbury v. Madison
established the concept of judicial review in the United States, setting the precedent that the U.S. Supreme Court can determine actions of the other branches invalid based on constitutionality.
Cohen v. California
Reversed "offensive conduct" conviction of Cohen for wearing a coat with "**** the Draft" into the LA County Courthouse. Court ruled that the expression was protected speech absent a compelling reason to prevent. Political speech or expressive content based speech protected under the strict scrutiny guideline. Justice John Paul Harlan wrote: "For while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves manners of taste and style so largely to the individual."
U.S. v. O'Brien
O'Brien burned draft card to protest Vietnam War in violation of federal statute making it a crime to knowingly destroy draft cards. Court determined that the federal restriction of expressive conduct could be upheld as long as the law:
1. was not intended to suppress expression
2. involved a substantial gov. interest (intermediate scrutiny)
3. was no greater than necessary to achieve that interest
In making the ruling, the Court reasoned that the law (draft card law) was not intended to suppress speech, but rather to properly maintain a Selective Service system.
Texas v. Johnson
flag burning case in which Johnson was convicted under Texas flag desecration law. Court determined that the law was aimed at the expressive nature of the act of burning a flag, rather than at the conduct itself, and thus had to meet a strict scrutiny test. They found no compelling justification for banning the burning of a flag.
Near v. Minnesota
Near was publisher of Saturday Press in Minneapolis. He attacked corruption in government, claiming Jewish gangsters were in control of gambling and bootlegging and accused local officials of failing to act. The Minnesota Gag Law allowed courts to declare any obscene, lewd, lascivious, malicious or defamatory publication a public nuisance and stop publication. It was enforced against Near. USSC declared the law unconstitutional. Said prior restraint unacceptable except in unusual circumstances (war, nat'l security, obscenity, etc.) PRESS SHOULD BE PUNISHED AFTER THE FACT WITH LIBEL LAWS.
Tinker v. Des Moines
Symbolic speech. Students wore black arm bands to school protesting the Vietnam War. They were suspended from school. They argued that the arm bands were a form of expression protected by the First Amendment. Supreme Court agreed. Said students do no lose their First Amendment rights just because they are in school. However, the court did say that any action, which disrupts (substantial disruption/ interference with school activities), could be restrained. Tinker used as precedent in 2003 ruling, Barber v. Dearborn Public Schools, the "Bush/International terrorist" case.
Bethel School District v. Fraser
Court ruled that schools could limit/sanction lewd, vulgar, offensive remarks by a student in pubic assembly. Considered one of the three most significant school rulings . . . Tinker, Kuhlmeier, Fraser. If you add in the recent Morse case, in spite of the ruling in Tinker, courts have been stingy with First Amendment rights when public school students are involved.
Hazelwood v. Kuhlmeier
In a 5-3 decision, the Supreme Court ruled that when a high school principal removed articles on teenage pregnancy and the impact of divorce on children, he was exercising reasonable censorship of a school sponsored newspaper, publised as a part of a class. Or: Administrators of public high schools have the right to censor school-sponsored papers, particularly those published as a part of a class.
Note distinction between this case and Tinker. Tinker involved personal expression. Hazelwood involved expression as part of school curriculum.
USA Patriot Act
(Uniting & Strengthening America by Providing Appropriate Tools Required to Intercept & Obstruct Terrorism Act of 2001)
• expanded authority of FBI to issue National Security Letters requiring businesses to turn over customer records (and not tell customer)
• sharing of grand jury information
• sharing of contents of wire, oral and electronic communications obtained by
• access to stored voice mail
• expanded power to access electronic communications
• greater authority to trace internet communications
• greater power re search warrants
• REAPPROVED IN 2006 WITH REWRITES/CIVIL LIBERTY SAFEGUARDS
use of a person's name or likeness in advertising for a particular medium if the name or likeness has or will be used as a part of the medium's news or information content is not an appropriation, may be used in same medium or across media.
walking through the scene or background of a movie, insignificant uses of an individual's name, being a part of a large group; not donsidered appropriation.
Electronic Communication Privacy Act
comprehensive in protecting against hacking and interception of private e-mail, although it does not apply to employers.
Intentional Infliction of Emotional Distress
tort involving outrageous conduct intended to cause severe emotional damage to another. Requires that:
1. Defendant's conduct is intentional or reckless
2. Defendant's conduct is extreme and outrageous
3. Defendant's caused plaintiff emotional distress
4. The emotional distress was severe
determined by "reasonable expectation of privacy"; if the court feels the plaintiff had a reasonable expectation of privacy at the time a photo is snapped or a voice is recorded then the plaintiff will win.
form of invasion of privacy; publication of false information. Similar to libel in that it deals with falsity, but does not have to be damaging, merely offensive. (This category is the one adopted by the least number of states.)
government action is valid if narrowly drawn to advance a substantial state interest . . . protected with limits (truthful commercial advertising . . . doesn't contribute to important social discourse, and lottery advertising for example.) Also applied to most all content neutral TPM (time, place, manner) restrictions . . . posters on telephone poles, time limits on residential solicitation, signs impeding clear view etc. Expressive conduct cases [i.e. nude dancing] also may sometimes be decided under intermediate scrutiny.
government action is constitutional only if narrowly drawn to advance a compelling government interest. Fully protected speech (political speech, expressive content based speech. (Cohen v. California, 1971, case . . . re "f the draft" on back of coat worn into LA County Courthouse . . . Cohen convicted under California law, which prohibits disturbing the peace by offensive conduct. Court ruled protected speech absent a compelling reason to prevent.
the act of restraining or preventing publication. Most believe that if nothing else the First Amendment meant freedom from prior restraint.
Time, Place, Manner Restrictions
narrowly defined free speech/expression restrictions based on factors other than content (content neutral). Must past intermediate scrutiny consideration.
Clear and present danger
In Schenck v. United States (1919), Justice Oliver Wendell Holmes articulated this test, which said that the government may suppress speech that presents a clear and present danger, as long as the government can show that that danger is both real and imminent.
as defined by libe law, anything that is seen by a third person (personal letter from me to you about a third person is considered published). Includes anything published in a magazine, newspaper, aired on radio or tv, or appearing in a blog, tweet, or textmessage shared with a third person. Publication as defined by law of privacy requires exposure to a mass audience.
a requirement for proving libel, one may be identified by name, photo, pen name, nickname, initials, pen/ink drawing, circumstance, putting two stories together. (Note that mis-identification is determined by audience perception. While you may have a person in mind, if the audience perceives the information to be about someone else, then that someone else is identified. . . making it important to accurately identify people).
defamatory comment about a large group of (more than 25) or more generally is not viewed as constituting libel against an individual member of the group. However, individual members of small groups may be defamed by blanket statements or slurs.
every republication of a libel is a new libel. Newspaper A reports that the Mayor of Burlington was arrested for soliciting a prostitute.
Radio station B reports the story - even attributes the information to Newspaper A. Both the newspaper and the radio station can be sued. EXCEPTION: Those who distribute or sell the product not responsible - news vendors, book sellers, local TV stations transmitting network reports.
concept in law in which a defendant would be held responsible for damages to an individual without proof of fault; existed in libel law prior to Times v. Sullivan, Curtis v. Butts, and Gertz v. Welch.
Libel per se
libel on its face (thief, burglar, embezzlers).
Libel per quod
innocent on its face, but libelous when considered with other facts: To say someone is pregnant ok, 'cept when considered with the fact that the husband is and has been overseas for past 10 months.
defined as knowledge of falsity or reckless disregard for the truth; level of fault required in libel suits by public officials and public figures; enunciated in New York Times v. Sullivan, 1964.
In New York Times Co. v. Sullivan (1964), the Supreme Court defined actual malice as a state of mind in which a person or publication makes an untrue and defamatory statement about a person "with knowledge that it was false or with reckless disregard of whether it was false or not." In order to recover damages for libel or defamation, a public official or public figure must be able to show by clear and convincing evidence that the defendant acted with actual malice.
one who is elected to office or w/significant responsibility for government affairs (budget etc.)
procedure by which a lawsuit is ended prior to a trial. In a libel case, for example, if a plaintiff cannot make a clear case for one of the requirements (publication, identification, defamation, falsity or fault), the judge may issue a summary judgment for the defendant. Three-fourths or more of all libel cases end in summary judgment. Request is filed after plaintiff has filed written arguments and before the trial begins.
The defendant must show either:
1. Plaintiff failed to make a case for either publication, identification, defamation, falsity, or fault.
2. There is a legal defense (statute of limitations, privilege, fair comment etc.)
exaggeration or exaggerated statements of opinion; unbelievable rhetoric which no one would believe to be an assertion of fact.
libel defense allowing defamatory opinion on matters of public concern. Matters of public concern: educational, religious, charitable, and professional organizations; manufacturers of products sold to the public; businesses serving the public (restaurants, theaters, etc.); any literary or artistic work; artists, writers, actors and actresses, athletes, coaches etc.
Statute of Limitations
time limit for filing suit, usually 1-3 years. In North Carolina, a libel suit must be filed within one year. (May sue in any state in which the libel is published/broadcast. So if the statute of limitations has expired in one state, it is possible to file in a state with longer period).
offering the target of a potentially damaging statement the opportunity to respond before published; may contribute positively to the defense.
timely publication of a correction of a libelous publication may reduce potential damage awards in many states.
Wire service defense
libel defense; not responsible if received from a reputable news-gathering agency, did not know story was false, nothing in story to make suspect, and no substantial changes to the original.
protected in reporting accusation about a public figure from a reputable source even if suspect story is false; news is in the fact that the accusation is being made.
libel defense; when a plaintiff's reputation is so bad additional false accusations could not be shown to be damaging.
in a libel award, damages for actual harm; harm (mental anguish and suffering, damage to reputation) must be demonstrated.
in a liblel award damages for specific monetary loss; a more precise damage than in actual and requires a higher level of verification.
damages awarded without proof of harm; public or private person suing for libelous statements involving matters of public concern must show actual malice.
damages awarded to punish the defendant; public or private person suing for libelous statements involving matters of public concern must show actual malice.