Comm 170 Final

Brown v. Board of Education (1954)

"We conclude that the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal"-Early Warren

U.S. v. OBrien

(1968) was a case decided by the Supreme Court of the United States that ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest that was unrelated to the suppression of speech and was tailored towards that end. Though O'Brien upheld the government's power to prosecute what was becoming a pervasive method of anti-war protest, its greater legacy was its application of a new constitutional standard. The test articulated in O'Brien has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech, though ostensibly neutral towards the content of that speech, violate the First Amendment. Though the O'Brien test has rarely invalidated laws that the Court has found to be "content neutral," it has given those engaging in expressive conduct —from the wearing of black armbands to the burning of flags —an additional tool to invoke against prohibitions.

Powell's "dicta"

(extraneous comment that lower courts are not expected to follow but have in this case) supplements and limits the NYT's decision.

Abrams v. U.S.

-2 leaflets (the defendant) printed and threw from windows of a building -First signed "revolutionists" denounced the sending of American troops to Russia -Second leaflet, written in Yiddish, denounced the war and U.S. efforts to impede the Russian Revolution -A few months later, the group -- which included a young anarchist named Jacob Abrams -- was tried, convicted, and sentenced to prison terms of 15 to 20 years. - in 1919 and 1920, the attorney general reported 877 convictions under the 1918 Sedition Act -Although the defendant's conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law -Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented "a clear and present danger" of imminent harm; Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the "clear and present danger test."

The Warren Court (1953-1969)

-Eisenhower nominated Earl Warren to be chief justice of the Supreme Ct. -many thought he would be a conservative but he was not so the court became more liberal; active court that made numerous key rulings -during johnson's presidency, the supreme ct. decided many cases involving controversial social, political, & religious issues -the supreme court supported civil rights, civil liberties, voting rights, and personal privacy -Mapp v. Ohio, Gideon v. Wainwright, Escobedo v. Illinois, Miranda v. Arizona

Espionage Act of 1917 vs. Sedition Act of 1918

-Espionage Act: a crime to interfere with the draft, spying, or obstructing the war effort -sedition act: made it a crime to say anything "disloyal, profane, or abusive" about govt

Kournikova v. General Media Communications, Inc

-Fake nude photographs of Anna that penthouse knew to be fake or should reckless disregard for the truth when they published the story according to Anna -the audience of penthouse magazine was hundreds of thousands of people -misrepresentations are libelous on their face -she has been exposed to hatred, contempt, ridicule or obloquy and has a tendency to injure her sponsorship -compensatory damages to her and punitive damages

What is FIRE? What did their report regarding free speech on college campuses reveal?

-Foundation for Individual Rights in Education -calls on campuses and police to do more to safeguard free speech; free speech on campus is facing a prominent threat: the angry mob; college leaders and law enforcement have to take a stand because this is not what democracy looks like

What did Trump say he would do to libel laws while campaigning? Are these promises in line with U.S. law?

-He said he was going to open up our libel laws so we can sue the media and win lots of money -Thankfully, the First Amendment—and freedom of the press in particular—would be safe under a Trump administration. -The Constitution imposes a high barrier for libel suits brought by public officials, like Mr. Trump, by the very virtue of the power they wield in society. For a public official to win a libel suit, the plaintiff must not only show that the defendant published a false and defamatory statement—but that the defendant did so maliciously

Bollea v. Gawker (2006)

-In 2006, Bollea was having sex with Heather Clem while being videotaped without his knowledge or consent. On October 4, 2012, Gawker editor AJ Daulerio published a two-minute extract from the 30-minute video, including 10 seconds of explicit sexual activity -On March 18, 2016, the jury delivered a verdict in favor of Bollea. The jury awarded him $115 million in compensatory damages, which included $60 million for emotional distress. The jury awarded Bollea an additional $25 million in punitive damages on March 21. -Billionaire Peter Thiel, a co-founder of Paypal and current Facebook board member, paid $10 million to help finance lawsuits against Gawker Media, including the Bollea lawsuit. He called his financial support of Bollea's case "one of my greater philanthropic things that I've done." Gawker published an article on Thiel, outing him in 2007. -Gawker went bankrupt after invasion of privacy suit -Univision Communications bought Gawker Media's assets for $135 million at a bankruptcy auction on August 16. The sale to Univision included six Gawker websites - Deadspin, Gizmodo, Jalopnik, Jezebel, Kotaku and Lifehacker - which were not involved with the publication of the Bollea materials. The sale did not include the continued operations of the flagship Gawker website. On August 18, it was announced that the main Gawker site would be shut down by the next week.

Brandenberg v. Ohio (1969)

-Klan rally, outside of Cincinnati, covered by tv station; film of the leader talking about seeking "vengeance" if the president continued to suppress the white race -The Warren/Brennan Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, "imminent lawless. action." -The defendant, a leader of a Ku Klux Klan group, spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. His remarks included such statements as: "Bury the n*****s," "the n*****s should be returned to Africa," and "send the Jews back to Israel." -In an Ohio state court, he was convicted, under Ohio's criminal syndicalism statute, both for advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform, and for voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. -It was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action. Since the Ohio criminal syndicalism statute, by its own words and as applied, purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, the statute violated the First and Fourteenth Amendments.

What happened recently at Middlebury College?

-Students shouted and protested against author Charles Murray during his lecture about differences in racial intelligence resulting in a professor getting injured (The Bell Curve book)

publication

-a copy of the offending item. at law, a publication is proved if the circumstances suggest that anyone other than the author of the libel and its target saw the offending words (can be a letter typed by a secretary and seen only by person dictating it and person who is libeled)

the plaintiff

-a person who files the libel complaint, can be an individual, a business, but not a govt. institution. individual w/in the govt. can sue however

Eramo v. Rolling Stone

-article in rolling stone titled "a rape on campus" described a brutal gang rape on UVA campus -inititally praised, but later emerged that the magazine had not tried to independently verify allegations -dean Eramo sued for defamation; portrayed her as a villain and not willing to help with campus rape -acted with malice b/c did not attain a FERPA warrant to access university records that would have contradicted the story and hid that they only used one subjective source and rejected Jackie's request to withdraw from story & disregarded positive info about Eramo & repeatedly lied to bolster credibility -compensatory and punitive damages

McCarthyism

-based off of Joseph McCarthy -The Supreme Court fell prey to the witch-hunt mentality of that period, seriously weakening the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government -- even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution.

libel examples

-calling someone a communist, a crook, a call girl, accusing a minister of unethical conduct, saying a father broke the confidence of a son

Holder v. Humanitarian Law Project (2010)

-case decided in June 2010 by the United States Supreme Court regarding the USA PATRIOT Act's prohibition on providing material support to foreign terrorist organizations -U.S. Attorney General Eric Holder -The case represents the only time in U.S. First Amendment jurisprudence that a restriction on political speech has passed the Brandenburg v. Ohio test. -The particular speech in question in Humanitarian Law Project advocated only nonviolent, lawful ends; the plaintiffs principally sought to advocate for human rights and peace to and with the Kurdistan Workers' Party, a Kurdish organization in Turkey that the Secretary of State had designated as a "foreign terrorist organization." They did not intend to further the organization's illegal ends; indeed, they sought to dissuade it from violence, and to urge it to pursue lawful ends through peaceful means. The Supreme Court ruled against the Humanitarian Law Project, which sought to help the Kurdistan Workers' Party in Turkey and Sri Lanka's Liberation Tigers of Tamil Eelam learn how to peacefully resolve conflicts. -The Chief Justice Roberts writing for the Court concluded that Congress had intended to prevent aid to such groups, even if for the purpose of facilitating peace negotiations or United Nations processes, because that assistance did fit the law's definition of material aid as "training", "expert advice or assistance", "service", and "personnel". The finding was based on the principle that any assistance could help to "legitimate" the terrorist organization, and free up its resources for terrorist activities.

New York v. Sullivan (1964)

-concerns a full page ad in NYTs that said the arrest of MLK jr. for perjury was in effort to to destroy his efforts to integrate public facilities and encourage blacks to vote -L.B. Sullivan the Montgomery city commissioner filed a libel complaint against newspaper saying allegations against the police were personally defaming him -Under Alabama law he did not have to prove he had been harmed -the ad had factual errors so could not be proved truthful -Sullivan won -Ct. decided that the first amendment protects all statements against public officials unless delivered with malicious (with knowledge that they are false or in reckless disregard of their truth or falsity) intent proven

Dennis v. U.S. (1951)

-conspiracy under the smith act to teach Marxist thought and Marxist doctrine -party officers charged with organizing a political party with the purpose of over throwing the govt. & teaching others to join them in the process -convicted and sent to prison -supreme ct. says yes they should go to prison but only 4 agreed on why. Congress has the right to draft laws designed to protect the nation from violent overthrow

libel per quod and libel per se

-courts still use these terms and they are related to the method a jury may use in assessing damages against a losing defendant

Clear & Present Danger Test

-first developed early in the 20th century, to determine the proper balance between freedom of speech and harmful incitement of lawless activity. Under this loose test, courts asked whether the words used had a tendency to create the kind of danger lawmakers might constitutionally prevent -In early 20th century rulings, the Supreme Court used the test in several First Amendment cases and frequently upheld the constitutionality of laws that overtly constrained unpopular political speech. The test was fine-tuned over the years and eventually evolved into the current Brandenburg test.

Defamation

-is the language at issue defamatory? is it of such a nature as to lower the plaintiff in the estimation of others? At an early stage in the proceedings a judge must look at the evidence and decide as a matter of law whether defamation is present -This is easy if the item is definitely defamatory or not defamatory. Problems arise when, for instance, an officeholder has been accused of neglecting his duties. How is neglect defined? -Some states follow what is called the "innocent construction" rule. If a statement is capable of two meanings and one of them is defamatory and the other is not, the innocent meaning prevails

criminal libel

-most early law of this sort, interesting there is still a standing decision which says it is a criminal offense to libel any race color or religion -Beauharnais v. Illinois (1952)

liber per quod

-not evident on its face, language might even appear harmless but to those who knew what the unstated facts were the language would be defamatory (i.e. newspaper mistakenly list a single woman as having a baby)

truth

-not the defense of choice b/c truth can be difficult to prove to the satisfaction of the jury, courts required that the truth be proven with strict precision -this defense survives in an altered state and much stronger about NYT v Sullivan -truth=absolute defense against libel, no matter what its motives. now the burden of proof has been shifted to the plaintiff who must prove that an allegedly defamatory statement is false

identification

-often name, but even when there is no names mentioned it does not mean there is no possibility of libel (e.g. Richard R Ryder & Richard J Ryder) -which is why name age and address often accompany story in most newspapers

The Brandenburg Test

-prevails today. Even speech that advocates violence is often protected. -In 1969, the Supreme Court replaced the rather vague "clear and present danger" standard with the Brandenburg test to determine when speech is sufficiently likely to prompt illegal action that it no longer warrants First Amendment protection. The Brandenburg incitement test allows punishment of "advocacy of illegal action" if the speech is 1. Directed toward inciting, 2. Immediate violence or illegal action, and 3. Is likely to produce that action. The Brandenburg decision established that government may punish criticism of government or advocacy of radical ideas only when speakers intentionally incite immediate illegal activity. That remains the rule today.

USA Patriot Act

-prohibition on providing material support to foreign terrorist organizations -Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". -privacy concerns -too much power to law enforcement

What is the difference between private and public persons as to libel law?

-public figure has much fighter burden of proof than a private plaintiff -private plaintiff only has to prove that the statement was a false statement of fact and that it damaged his or her reputation -public figure has to prove the statement is false and that the media published the false statement knowing it was false or with reckless regard for the truth (rare for them to win)

Schenck v. U.S. (1919)

-the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-war leaflets to draft-age men. -was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft. -not ordinary times: Nation at war and the Germans and socialists dangerous folks according to Oliver Wendell Holms

Brown v. Entertainment Merchants Association

-the U.S. Supreme shut down a CA state law banning the sale of violent video games to minors -cant restrict the ideas to which to which children may be exposed, can only protect from harm

Chaplinsky v. New Hampshire (1942)

-the court held that so-called fighting words which by their very utterance inflict injury or tend to incite an immediate breach of the peace, are not protected -the decision was based on the fact that fighting words are of slight social value as a step to truth -established fighting words as an unprotected category of speech

absolute and qualified privilegeare i

-the statement & the communicator could be protected by privilege -what does privilege mean? in legal terms it means "immunity". a defamatory statement is immune from legal action if it serves some public purpose -when the public's business is being conducted the need for complete candor is so great that communicators should have absolute protection from libel actions

Why did Melania Trump file a libel suit against The Daily Mail?

-they called her modeling agency an escort service -this is resulting in a loss of millions of dollars of potential money for her and her brand that she could have made based off of being the most photographed woman in the world due to lost commercial deals, etc.

What are the 3 types of defense a media outlet can use in a libel suit?

-truth -absolute and qualified privilege -fair comment

Robert Reich: 7 warning signs present when tyrants try to hijack democracies

1) They exaggerate their mandate to govern 2)They turn the public against journalists or media outlets that criticize them 3)They repeatedly lie to the public 4)They blame economic stresses on immigrants or racial or religious minorities 5)They attack the motives of anyone who opposes them, including judges 6)They appoint family members to high positions of authority 7)They keep their personal finances secret and draw no distinction between personal property and public property

Under common law, the plaintiff had to offer evidence of 3 elements

1) publication 2) identification 3)defamation

NYT's v. Sullivan: The Court made 4 fundamental changes in libel law:

1. THE PROTECTION OF EDITORIAL ADVERTISING 2. THE FIRST AMENDMENT AND LIBEL PER SE 3. THE PARTIAL PROTECTION OF FALSE STATEMENTS 4. PROVING ACTUAL MALICE

absolute privilege

3 types: 1) generally agencies of govt., courts, & govt. officials are immune or protected by absolute privilege when conducting official business 2)consent given to publish 3)broadcasts by political candidates *even under common law it was recognized that people have the right to be informed about the activites of the govt.

What happened at the White House press briefing on Friday, February 24th?

5 media outlets were blocked

Powell's dicta 1) Libel is limited to false and defamatory assertions of fact.

A libel action cannot be taken for an opinion, but there is not constitutional value in false statements of fact. Defamatory statements are only actionable if they are assertions of fact.

Elonis v. U.S.

Anthony Elonis wrote violent posts on facebook after his wife left him -convicted under federal law and sentenced to 4 years in prison for communicating threat or intent to injure another -This is the first time the Court has heard a case considering true threats and the limits of speech on social media. -claimed they were therapeutic and rap, fictional lyrics - Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a "reasonable person" would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort -Not convicted by supreme ct. b/c law requires proof of defendants intent to harm, not a reasonable listeners test

Morse v. Frederick

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. Chief Justice Roberts said: Freedom of speech does not extend to speech that directly contravenes an important school anti-drug policy. The "special environment" and the educational mandate of the schools permitted officials to prohibit student speech that raises a "palpable" danger to established school policy.

Who had the burden of proof before and after New York Times v. Sullivan?

Before: defendant After: plaintiff

GERTZ V. ROBERT WELCH, INC. (1974)

Case facts: Elmer Gertz is a lawyer who represents the parents of a Chicago youth shot to death by a police officer. After the officer is found guilty of 2nd degree murder they sue the city of Chicago. The magazine American Opinion, run by the John Birch Society, founded by Welch refers to the lawyer as "Leninist Gertz" and as member of the "Red Guild" also said Gertz had a police record which he did not. Gertz sues the magazine publisher Welch Lower courts held that article discussed an issue of public importance and decided that Gertz could not sue. Appealed to the Supreme Court. Supreme Court ruling: Reversed, said Gertz could sue. The majority held that the nature of the plaintiff is crucial in deciding whether the New York Times rule protects the defendant The Supreme Court concluded that Elmer Gertz, the plaintiff in the defamation action and a leading Chicago civil rights attorney, was not a public figure for constitutional purposes. Moreover, the Court said, as a private person, Gertz need only show that a defamatory falsehood was made negligently, not that it was made with actual malice. Finally--in what turned out to be a major victory for the media--, the Court ruled that in the absence of a showing of actual malice, private plaintiffs are limited by the First Amendment--at least with respect to comments about a matter of public concern-- to recovery only for actual damages, and not for punitive or presumed damages.

Espionage Act of 1917

Congress set penalties for those who spoke or published "false" statements intended to interfere with the war effort Later amended and called the sedition act of 1918

Texas v. Johnson

In 1989 (Texas v. Johnson) and again in 1990 (U.S. v. Eichman), the Court struck down government bans on "flag desecration."

United States v. Stevens

In 2004, Robert J. Stevens was indicted for creating and selling three video tapes, two of which depicted pit bulls engaged in dog fighting. The third tape depicted a pit bull attacking a domestic pig as part of the dog being trained to catch and kill wild hogs; this video included "a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig." Although Stevens' criminal prosecution concerned only three tapes, he had made $20,000 in two and a half years from selling nearly 700 videos Stevens was not accused of engaging in animal cruelty himself, nor of shooting the original footage from which the videos were created. However, the footage in each of the videos "is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author." The Court struck down the law as overly broad because it penalized speech that did not fit within a historically recognized First Amendment exception. The Court stated that "Neither Congress nor the Supreme Court has freewheeling authority to declare new categories of speech outside the scope of the First Amendment."

Tinker v. Des Moines

In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. Case facts: Three public school pupils in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands. The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the conduct of school activities. Prior restraint and student publications The Supreme Court Held: 1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. 2. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment. 3. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.

R.A.V vs. city of st. paul

In the early morning hours of June 21, 1990, the petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. The cross was erected and burned in the front yard of an African American family that lived across the street from the house where the petitioner was staying. The Supreme Court ruled in 2002 that a city ordinance that prohibited anyone from expressing religious hatred through methods such as painting swastikas on building or burning crosses in people's yards was unconstitutional -cross burning speech is protected-to ban it would not be content neutral

Escobedo v. Illinois (1964)

Individuals accused of a crime must be given access to an attorney while being questioned

Virginia v. Black

Modified the ruling somewhat in 2003 States may now ban cross burning if the main intent of the symbol is intimidation

Cohen's jacket (1971)

Paul Cohen walks into LA courthouse wearing a jacket bearing "F the Draft" -convicted for violating CA penal code -court of appeals upheld the conviction and said offensive conduct disturbs the peace -Supreme ct. said state cannot make the display of this 4 letter word a criminal offense based on first and fourteenth amendment

Nonuniversity Student Speech

Recent Supreme Court decisions on student expression generally approach nonuniversity student speech cases in one of three ways: 1. Is the speech disruptive? If the speech disrupts the functioning of the public school or violates the rights and interests of other students, it may be regulated.1 2. Is the speech of low value? If the speech is lewd or if it conflicts with the school's pedagogical goals or public values, it may be regulated.2 3. Is the speech sponsored by the school and therefore perceived to reflect the school's official position and attitude? If the speech occurs in a school-sponsored forum or event, if it is part of the school's official curriculum, or if it appears to entangle the school with a particular religious viewpoint, it may be regulated.

Mapp v. Ohio (1961)

Ruling: evidence seized illegally cannot be used in a trial

3. THE PARTIAL PROTECTION OF FALSE STATEMENTS

So far, Brennan has said that "Heed" is protected despite the fact that it is paid advertisement and was libelous on its face. BUT the Question still remained: Does the First Amendment also protect falsehoods? YES Here, Brennan quotes James Madison: "Erroneous statement is inevitable in free debate,and...it must be protected if freedoms of expression are to have "breathing space" that they need to survive." But, what about the idea that defendants prove the truth of their remarks as a defense? Common law provides for this as a defense couldn't traditional notions of libel be upheld on this ground? Nope. Requiring a defendant in a libel case to prove truth did not adequately protect robust debate about the conduct of public officials. Common law libel laws cannot be saved by permitting publishers to win libel suits by proving the truth of their statements. A rule compelling a critic of official conduct to guarantee the truth of all his factual assertions--and to do so on the pain of libel judgments of virtually unlimited amount--leads to self censorship.

2. THE FIRST AMENDMENT AND LIBEL PER SE

Sullivan's next argument when right to the heart of the common law of libel, the concept of libel per se. Under Alabama law a statement was libelous on its face if it imputed misconduct to a public official. If the jury found that the words applied to the official they had to assume that his reputation suffered harm. In fact the Supreme Court had said in the past that libel per se like obscenity and fighting words and other language devoid of idea content was outside the scope of the First Amendment. Brennan said no exception to First Amendment Protection: Libel cannot claim immunity from constitutional limitations it must be measured by standards that satisfy the First Amendment. Debate on public issues should be uninhibited, robust, and wide open, and that may well include vehement, and sometimes unpleasant attacks on government officials

Gideon v. Wainwright (1963)

Suspects who cannot afford a lawyer have the right to free legal aid

How do threats of national security impact First Amendment rights?

That is when first amendment protection is not provided

What is the importance of UCSD's The Koala?

The American Civil Liberties Union has filed a lawsuit claiming UC San Diego and the Associated Students Council violated the First Amendment rights of the satirical newspaper The Koala and other campus publications by cutting their funding last year. The suit, filed in federal court Tuesday afternoon, asks the school to reverse the Associated Students' decision from November and restore funding to all campus publications.

Hatch Act

The Hatch Act legitimized McCarthy's investigations into Communists-in-government. Passed in 1939, the Act made it illegal for the federal government to employ Communists.

intimidation

The Supreme Court generally has said the Constitution prohibits punishment for vague statements with distant or speculative harms, but in recent years the Court has developed the concept of "true threats." When speech becomes an overt act of threat or intimidation it may be regulated.

hate speech

The Supreme Court has not established "hate speech" as a specific category of speech. The Court's most relevant decisions suggest that attempts to prohibit unpopular or racist speech as a subset of fighting words will rarely be constitutional. -should we give the govt. power to decide which opinions are hateful? -a category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect, or the like

offensive speech

The U.S. Constitution protects the right to express ideas in an offensive manner because effective speech has both cognitive and emotional content. -The Court has suggested that laws that target highly offensive speech are constitutional only if they are extremely narrowly tailored to address real and demonstrable harms.

4. MUST PROVE ACTUAL MALICE

The constitutional guarantees require, said the Court, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"--that is knowledge that it was false or with reckless disregard of whether it was false or not

the defenses to a claim of libel

The defense could win the case by: 1) Proving the charge or the offending language was true. 2) The statement and the communicator could be protected by privilege. The only question for the jury is was it a fair and accurate report of the public proceedings of some agency of the gov't or court. 3) Fair comment on the plaintiffs activities.

1. THE PROTECTION OF EDITORIAL ADVERTISING

The first change in conventional law was to counter Sullivan's contention (once the case got to the Supreme Court) that "Heed" was not protected by the FA because it was an advertisement. There was some precedent for this. The SC had held in the past that handbills advertising some product were not protected by FA. Brennan said: The publication here... communication information, expressed opinion, recited grievances, protested claimed abuses, sought financial support on the behalf of some movement whose concerns were of the highest public interest The fact that the Times was paid to carry this advertisement is immaterial. • Any other conclusion would discourage newspapers from carrying "editorial advertisements" of this type and so might shut off an important avenue for ideas from people who do not ordinarily have access to publishing facilities--who wish to exercise their freedom of speech even though they are not members of the press. • So we have the first principle--editorial advertising stands on higher grounds than ordinary commercial advertising

West Virginia State Board of Education vs. Barnette.

The last time the U.S. Supreme Court ruled on the Pledge of Allegiance was in June 1943 in West Virginia State Board of Education vs. Barnette. In 1942, West Virginia's State Board of Education mandated that the flag salute become "a regular part of the program of activities in the public schools." Any student failing to comply could be charged with insubordination and expelled. For religious reasons, Walter Barnette, a Jehovah's Witness, refused to allow his children to salute the flag and say the Pledge. In a 6-3 decision, the Supreme Court ruled in his favor.

fair report privilege

The statement and the communicator could be protected by privilege. The only question for the jury is was it a fair and accurate report of the public proceedings of some agency of the gov't or court.

Bethel School District v. Fraser

Tthe Court upheld the right of Washington state high school administrators to discipline a student for delivering a campaign speech at a school assembly that was loaded with sexual innuendo. The Court expressed the view that administrators ought to have the discretion to punish student speech that violates school rules and has the tendency to interfere with legitimate educational and disciplinary objectives.

Brown V. Entertainment Merchants Association: Breyer's dissent

Unlike the majority, Justice Breyer identifies special features of video games, including the physical action and interaction upon which they depend. Video games, he notes, are particularly effective in developing habits and rewarding the participant. He discusses how the Armed Forces rely on video games as evidence of their power in train-ing and cultivating habits. He notes that game-based rewards for aggressive play could be no less effective with children but with less desirable results. Justice Breyer turns to social science studies on this point. Here hendoes much more than rely on studies cited by the parties and friends of the Court. He reports on the results of a search of peerreviewed academic journals, a search "on the topic of psychological harm resulting from playing violent video games" that he conducted with the assistance of the Supreme Court Library. He offers two instructive ideas in dealing with the numerous and conflicting studies: (1) he turns to experts engaged in reviewing the field and in conducting meta-analyses ("studies of the studies") who find that these establish harm; and (2) he uses the conclusions of experts and the meta-analyses as sufficient basis to respect the California legislature's view. He argues that the resolutions and joint statements of research organizations, alongside studies of studies, supply enough reason for judges to respect legislative facts, involving technical matters, even in First Amendment cases. Justice Breyer's approach contrasts sharply with the majority's view, which announces its own assessment of the studies as failing to establish harm from violent video games sufficient to justify regulation.

fighting words

While the First Amendment protects most forms of offensive speech, the U.S. Supreme Court has established fighting words as a disfavored category of speech. -insulting or fighting words are no essential part of exposition of ideas, and are of such flight social value as a step to truth that they may be abridged by the states w/o violating the first amendment -words not protected by the first amendment because they cause immediate harm or illegal acts

What is the level of protection from liability for libel that the media enjoy since New York Times v. Sullivan?

a journal who published erroneous info about a public figure w/o knowing it was wrong is constitutionally protected

sedition

advocating the overthrow of the govt.

before and after NYT v Sullivan (truth)

before: under common law, The courts assumed that the offending language was false and assumed that the victim suffered harm. after: could not even just prove not true, plaintiff had to prove reckless disregard for truth by defendant

non libelous example

calling a political foe a thief or liar calling someone a loser or a bitch or butthead, etc

libel per se

certain classes of words ("so and so committed a crime") were considered so harmful on their face-per se-that courts said that persons to whom they were directed did not need to prove harm. Harm was assumed with no need to show financial damages or loss of standing in the community. This idea will be challenged in NYT v. Sullivan ex: disease, crime, malpractice, impotence/chastity ex: Anna Kournikova

what do we mean by defamatory comments

communications that tend to expose a person to hatred ridicule or contempt -defamation may reflect negatively on someone's morality, integrity, discredit his occupation, involve accusations of mental or physical illness

punitive damages

damages to punish the defendant for what they did and make a point • Punitive Damages: The big money awards usually come from punitive damages. Punitive damages are intended to punish the publication of defamation rather than compensate for injury to reputation. They are private fines levied by juries to punish reprehensible conduct and deter it future occurrence. • The SC in Gertz said that all plaintiffs-public officials, public figures, and private persons-- could only win punitive damages by proving NYT's actual malice. • Some states: Washington, Oregon, Massachusetts, do not permit punitive damages.

material support

defined in the statute to to include, among other things, speech, in the form of "expert advice," "training," "service," and "personnel." This includes almost any kind of support for blacklisted groups, including humanitarian aid, training, expert advice, "services" in almost any form, and political advocacy. -The Patriot Act broadened these provisions in the wake of 9/11

civil libel

in 20th century most libel of this sort individuals who believe they are defamed claim monetary damages

actual malice

knowledge of falsity or reckless disregard of the truth (public officials need to prove this)

Sedition Act of 1918

made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States" or to "willfully urge, incite, or advocate any curtailment of the production" of the things "necessary or essential to the prosecution of the war."

material support statute

makes it a crime (punishable by up to 10 years in prison) to provide "material support" to any foreign organization the Secretary of State has designated as terrorists

damages

monetary compensation that may be recovered in court for any person who has suffered loss or injury. Damages may be compensatory for actual loss or punitive as punishment for outrageous conduct

compensatory damages

money to the plaintiff for losses In Gertz, the SC said plaintiffs who did not prove NYT's actual malice could only collect for actual damages. Injury to reputation had to be shown rather than presumed. One way to show actual damages is out of pocket monetary loss such as loss of restaurant customers. The more usual claim of actual harm inflicted by the defamatory falsehood include impairment of reputation, standing in the community, personal humiliation, mental anguish and suffering. Actual injury must be supported by "competent evidence."

symbolic speech

nonverbal expression whose purpose is to communicate ideas. has 1st amendment protection Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn. The State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.

slander

oral defamation

Why did Milo Yiannopoulos resign from Breitbart?

pedophilia comments

Miranda v. Arizona (1966)

police must inform accused persons of their rights before questioning them

What are the rights of students under the First Amendment?

supreme court views schools as limited public forums which means schools may impose reasonable content neutral time place and manner regulations on student speech activities to advance educational objectivies. they may adopt regulations to achieve their educational goals even if the rules incidentally limit the freedom of speech of student s and teachers. they may not dictate the content of student speech except to prevent speech that would directly undermine the school's educational mission

Hazelwood v. Kuhlmeier

the Court relied heavily on Bethel to uphold the right of school administrators to censor materials in a student-edited school paper that concerned sensitive subjects such as student pregnancy, or that could be considered an invasion of privacy.

Who did Trump claim is the enemy of the people at CPAC?

the media

the defendant

the media entity, writer or speaker

qualified privilege

the news media has this, it may report on defamatory comments made in official proceedings qualified only by the requirement that the reports be fair and accurate. The reporter need not worry about the accuracy of the remarks so long as made in official proceedings

burden of proof

the requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. In libel law, for example, the plaintiff has the burden of proof

common law defense of fair comment & criticism

the writer or speaker is protected if 1)statement was personal opinion 2) backed by fact 3)must relate to matters of widespread public interest. applies to the criticism of anyone offering his or her services or goods to the public. The public performance of a govt. official or some other individual whose work or behavior invited public comment such as an actor or musician, scientist, public institutions and those who staff them such as doctors nurses

What is the significance of New York Times v. Sullivan pertaining to state libel laws

usually states had the power over libel issues, now nationwide standard of plaintiff proving malice for centuries libel was a matter of state common law or statute law which is why a great deal of it does not make sense. legal principles evolved from various state courts. in general, the idea is that anyone who was the target of harmful words had a right to sue for damages It federalized much of libel law, moving it out of common law and state statute, into the realm of constitutional law.

libel

written or printed defamation