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JAMS 559 Exam 1: First Amendment
Terms in this set (79)
Submit to authority for approval prior to publication
Suppression of an idea before it is made public
Punishment after an idea is made public
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances
Wisconsin Constitution Article 1, Section 3
Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press
Alien & Sedition Acts
Increased citizenship requirements, expelled aliens dangerous to the peace and safety of the U.S., government can punish "false, scandalous and malicious writing against the government"
Felony to cause insubordination in the military, to obstruct enlistment or to convey false statement with the intent to interfere with military operations, allow postal censorship
Made it a felony to hinder enlistment and recruitment, but also to "utter, print, or publish disloyal, profane, scurrilous, or abusive language about the form of government, the Constitution, soldiers and sailors, flag, or uniform of the armed forces, or by word or act support or favor the cause of the German empire or its allies
Masses Publishing v. Patten
Judge Learned Hand: "Direct incitement test," expression is protected up to the point where a person advises "others to violate the law as it stands... every political agitation which can be shown to be apt to create a seditious temper is illegal"
Appeals court rejects Hand's test
Schenck v U.S.
Justice Holmes' clear and present danger test
Applying the First Amendment to the states through the Fourteenth Amendment
All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S.and the State wherein they reside. No state shall make or enforce any law which shall abridge the privilege and communities of citizens of the U.S.; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
Gilbert v. Minnesota
Incorporation Doctrine was implied
Gitlow v. New York
Incorporation Doctrine was articulated
Near v. Minnesota
Incorporation Doctrine was applied. Justice Hughes: "It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action" "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official conduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege."
Acceptable prior restraints identified in Near
Times of war, obscenity, incitement to violence
Are sedition laws constitutional? New York Times v. Sullivan
People have a right to criticize government and government officials as long as it is done without knowing falsity or without reckless disregard of the truth
Acceptable limits on expression?
Forum analysis and time/place/manner restrictions
Traditional public forum, designated (limited) public forum, public property not a public forum, private property
Content neutral, narrowly tailored, serve a substantial government interest, leave open "ample alternative channels for communication"
Speech and the public forum: Davis v. Massachusetts
The Court affirmed that the state had the power to control First Amendment rights on public property.
Speech and the public forum:
Hague v. CIO
The Court kind of reverses Davis, saying that communication in public spaces, specifically streets and parks, is an ancient right and must be upheld.
Logan Valley (1968)
Union allowed to protest on mall property; mall is "functional equivalent of a 'business block.'"
Lloyd Corp. v. Tanner (1972)
Protesters do not have constitutional right to distribute handbills on mall property.
Hudgens v. NLRB (1976)
Union members cannot picket retail store in mall.
Pruneyard v. Robins (1980)
California can give protesters access to malls through state constitution.
Clark v. Community for Creative Non-Violence (1984)
National Park Service can prohibit protesters from sleeping in Lafayette Park and the Mall in Washington, D.C., time, place and manner test
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
Private group can prohibit group from marching in St. Patrick's Day parade because it disagrees with its message.
Justice Souter: Streets are a public forum but group should obtain its own permit and hold its own march.
Cantwell v. Connecticut: Time/place/manner
Speech can be prohibited if it is likely to provoke violence and "disturbance of good order." Personal abuse and certain types of language are not concerned with the communication of information or opinion.
Incitement to violence: Chaplinsky v. New Hampshire (1942)
Justice Murphy: Expression can be restricted if its very utterance would inflict injury or tend to incite an immediate breach of the peace.
Incitement to violence: Terminiello v. Chicago (1949)
Justice Douglas: Speech "may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
Speech protected "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest . . .."
Incitement to violence: Brandenburg v. Ohio (1969)
Ku Klux Klan leader threatened "revengeance" on president, Congress, and Supreme Court.
Court overturns conviction and relies on incitement standard (imminent and likely). Per curiam opinion ruled that:
Threat must be serious intent to incite illegal action (i.e., more than talk).
Threat must be immediate (i.e., impending, about to occur).
Incitement to violence: Cohen v. California (1971)
U.S. Supreme Court overturns man's conviction for wearing jacket with words, "F*** the Draft".
Cohen was not disruptive and words were neither erotic nor fighting words.
Court protects "symbolic speech"--not spoken.
Incitement to violence: Texas v. Johnson (1989)
No evidence of breach of peace.
Does state have a right to protect national flag?
Justice Brennan: "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."
Press and national security:
Pentagon Papers Case (1971)
Per curiam opinion: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."
Press and national security:
U.S. v. Progressive (1979)
Federal judge grants injunction preventing magazine from publishing article on how to make a hydrogen bomb.
Judge Robert Warren: "This Court can find no plausible reason why the public needs to know the technical details about hydrogen bomb construction to carry on an informed debate on this issue."
Press and students:
Stanley v. McGrath (1979)
Minnesota Daily case.
Public universities can only make content-neutral decisions.
Press and Students:
Kincaid v. Gibson (2001)
University yearbook is a limited public forum.
University can only make reasonable time, place, and manner restrictions.
Content restrictions only that advance a compelling state interest.
Press and students:
Hazelwood v. Kuhlmeier (1988)
High school administrators can make content-based decisions if:
They have a solid educational purpose.
They are reasonable in achieving that purpose.
Press and students:
Hosty v. Carter (2005)
U.S. Court of Appeals rules that Hazelwood standards apply to college press.
Determining factor for college press is whether it is a designated public forum.
West Virginia v. Barnette (1943):
Can citizens be forced to speak?
Public school students cannot be forced to stand, pledge allegiance to U.S. flag.
Scarcity, diversity, deregulation
Communication Act of 1934
Licenses should be issued as "public convenience, interest, or necessity requires."
Telecommunication Act of 1996
Congress takes control of U.S. communications policy
Competition is the key to all telecommunications markets
Section 230 of Telecom Act: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
Ownership Rules Today
Television/newspaper cross ownership banned, with some exceptions.
No entity can reach more than 39 percent of the national TV viewing audience; some limits on ownership of local TV stations.
No limits on national radio ownership; some limits on local radio station ownership.
Prometheus Radio Project v. FCC (2004)
Challenged FCC's desire to loosen ownership rules.
Other than 39-percent rule, FCC has failed to justify ownership rules.
Subsequent changes have been rejected by courts.
NBC v. U.S. and CBS v. U.S. (1943)
Justice Frankfurter: "Because it cannot be used by all, some who wish to use it must be denied."
The Marketplace Theory
"Instead of defining public demand and specifying categories of programming to serve this demand, the (FCC) should rely on broadcasters' ability to determine the wants of their audiences through the normal mechanisms of the marketplace. The public's interest, then, defines the public interest."
FCC v. WNCN Listeners Guild (1981)
FCC rules that "public interest" means what survives in the market.
Supreme Court rules FCC can define "public interest" how it wants to.
FCC promoting minority ownership of broadcast outlets since 1978.
1985: Federal court encourages FCC to give "enhancement points" to minority applicants.
Metro Broadcasting v. FCC (1990)
Are "enhancement points" constitutional?
Justice Brennan: Everyone in society benefits from diversity, not just minority groups.
1995: Supreme Court rules that preference programs are unconstitutional.
Telecommunications Act and Diversity
Creates fund to aid minority ownership.
Deregulation has driven up price of properties.
Equal Time Provisions
Assures that broadcast media will be responsive to needs of political system.
Stations must give equal time to qualified candidates for public office.
Exemptions to Equal Time
Newscast, News interviews, Incidental appearance on news documentary, Spot news coverage
Who's a qualified candidate?
Publicly announced candidacy
Qualified to hold office
Qualified for a place on the ballot or has publicly committed to a write-in campaign
Broadcasters should cover controversial issues of public importance.
Reasonable opportunity for significant opposing viewpoints.
Abolished in 1987
Red Lion Broadcasting v. FCC (1969)
Fairness Doctrine is constitutional
Justice White: "It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here."
Miami Herald v. Tornillo (1974)
No right of access to print media.
Florida law is content based, and content decisions should be left up to editors.
Access to broadcast media: CBS v. Democratic National Committee (1973)
CBS v. Democratic National Committee (1973): Broadcasters have discretion over programming.
Arkansas Educational Television Commission v. Forbes (1998): State-owned network allowed to exclude third-party candidate from debates.
Under 1992 law, broadcaster can choose one of the following:
Must-carry: Cable system must carry local broadcast outlet; broadcaster will not be compensated.
Retransmission consent: Broadcasters can negotiate with cable system for compensation.
Turner Broadcasting v. FCC (1994)
Turner Broadcasting claims must-carry rules violate its First Amendment rights.
Supreme Court: Rules don't violate First Amendment, but government must prove need for must-carry rules.
Justice Kennedy: "A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch. The potential for abuse of this private power over a central avenue of communication cannot be overlooked."
Scarcity examples of telecommunication regulation:
CBS and NBC cases
Telecommunication Act of 1996
Diversity examples of telecommunication regulation:
Deregulation examples of telecommunication regulation:
Red Lion to DNC
Reno v. ACLU (1997)
Communications Decency Act unconstitutional because:
Internet is not as invasive as broadcast, no scarcity problem.
ICANN: Internet Corporation for Assigned Names and Numbers
Nonprofit corporation charged with maintaining internet's functionality.
Doesn't regulate; coordinates
Diversity and Net Neutrality
Net neutrality would prohibit Internet Service Providers (ISPs) from making content-based decisions.
Telecommunications Act of 1996
Telecommunication service vs. information service
Telecommunication service regulated as a common carrier.
Information service not a common carrier; enjoys more regulatory freedom.
Broadband and DSL (digital subscriber lines) are considered information services after 2005.
FCC and Open Internet
Transparency: providers must disclose accurate information about service
No blocking: Cannot block lawful content and services
No unreasonable discrimination: Cannot discriminate against lawful network traffic
Verizon v. FCC (2014)
FCC has chosen not to treat broadband carriers as common carriers. Therefore, they cannot be regulated as common carriers.
FCC and Net Neutrality
2015 FCC reclassifies broadband as telecommunications service.
U.S. Telecom. Assoc. v. FCC (2016): FCC can reclassify internet providers as common carriers.
Computer Fraud and Abuse Act
Felony to hack into a protected computer, transmit a virus, or traffic in computer passwords.
Identity theft and the internet
Identity Theft and Assumption Deterrence Act
Identity Theft and Assumption Deterrence Act
Prohibits knowing transfer, possession, or use of another person's identification without authorization to commit a crime.
Subject to fine or up to five years in prison or both.
Scheme to defraud or obtain money or property under false pretenses.
Fines up to $250,000 or 20 years in prison.
Criminalizes e-mail fraud, phishing.
Impact on commercial speech.
Maximum penalties up to five years in prison.
Regulating virtual space: Voyeur Dorm v. City of Tampa (2001)
City cannot zone adult-oriented business since it is offered only in "virtual space.
Trespass and cyberspace
Courts differ on whether trespass is possible.
Unlawful use of computer communications
Unlawful to use computer communications with "intent to frighten, intimidate, threaten, abuse or harass another person."
Reasonable expectation that person will receive the information.
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