JO350 Midterm Study Guide

Time, Place, Manner Restriction on Speech

-1st Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also, the laws that regulate these conditions (ex: laws that limit noise in hospital zones) -content-neutral: what you say doesn't matter, merely a restriction of where and when - intermediate scrutiny applied

Elonis v. US (2015) (Facts, Issue, Rule of Law, Analysis, Conclusion)

-Facts: Elonis arrested on 12/8/2010 with 5 counts of violating anti-threat statute after posting threatening Facebook statements. He said he didn't intend them as threats and asked for dismissal; motion denied, convicted of 4/5 counts Issue: Does a conviction of threatening another under federal anti-threat statute require proof it was definitely meant in a literal sense? Rule of Law: federal crime to transmit any communication containing a threat to injure another Analysis: a reasonable person standard is the correct legal test for determining whether Elonis could be communicating a threat under federal law (proof of intent missing) Conclusion: revised and remanded; 8-1 by Chief Justice Roberts in 2015; Alito concurred and dissented, Thomas dissented

Ollman v. Evans (1984) (Facts, Issue, Rule of Law, Analysis, Conclusion)

-Facts: Washington Post ran column by Evans and Novak in 1978 entitled "The Marxist Professor's Intentions"; Ollman, the professor, was being considered for a new position at University of Maryland; sued for defamation and the federal district court ruled against him, claiming it was constitutionally protected opinion; federal appellate court affirmed -Issue "...the allegedly defamatory statements set forth in column are constitutionally protected expressions of opinion or actionable assertions of fact" -Rule: 4 factors, Ollman test -Analysis: free flow of ideas is integral to democracy; we have to balance free flow of ideas with a person's interest in protecting their reputation; certain factors to distinguish and 4 questions to use to do so -Conclusion: SCOTUS affirmed

Libel

-a published false statement that is damaging to a person's reputation (plaintiff must show the statement was made public)

Opinion

-a strong 1st Amendment defense -once opinion is proven, there can be no libel (a constitutional defense)

Prior Restraint & When it Might be Considered Constitutional

-action taken by government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication -only justified when there is clear and convincing evidence that the speech will cause great and certain harm that cannot be addressed by less intrusive measures or when the speaker clearly engaged in criminal activity to obtain the info being banned

Truth

-always a defense to libel -what is true cannot be libelous -reputation my be harmed by truth coming out but that doesn't amount to a libel -substantial truth could be enough to prove there was no libel

Milkovich v. Lorain Journal (1980) (Facts, Issue, Rule of Law, Analysis, Conclusion)

-can't disguise fast as opinion -if it is a statement that can be proven true/false, it can be libelous -sports columnist at Ohio paper wrote wrestling coach, Milkovich, lied under oath -SCOTUS found statement fact rather than opinion -merely embedding statements of fact in a column does not transform them into expressions of opinion

Ollman Test and its Application

-court test to distinguish an assertion of fact from opinion -answers to elements should be evaluated in total to determine if something is opinion or not (they don't need to be proven individually) 1) is the statement verifiable? 2) what is the common usage/meaning of the words? 3) what is the journalistic context of the statement - op-ed/column with opinions usually or hard news? 4) what is the broader social context? Was it made in a place we'd expect opinion?

Rhetorical Hyperbole, Parody, and Satire

-if material in question is so outrageous that no reasonable person could believe it, the damage to plaintiff's reputation could not have happened -hyperbole is protected speech (libel defense); loose hyperbolic language generally communicates opinions; similarly, satire/parody meant to be humorous/offer social commentary is not libelous (superficial degree of plausibility = hallmark degree of satire) -context plays critical role in determining libel

Fair Report Privilege

-info in government records; statement from official gov. document you cannot be liable for libel; gives reporters breathing room to report from official gov. records; (not all states recognize fair report privilege) -when it works: info must be obtained from "official gov. record"; must fairly and accurately report the statement; source of info should be clearly noted in the story

Communications Decency Act Section 230 Immunity

-legal protection for ISPs and websites that publish libelous content -not considered publishers of "original material" but just distributors -protection not absolute -fact-by-fact determination including if the ISP had reason to know if material was libelous -(YouTube, Twitter, etc. that rely on user-generated content)

Libel-Proof Plaintiff

-one whose reputation is so badly tarnished they can't be libeled

Fair Comment and Criticism

-protects critics from lawsuits by those in the public eye (differs from public figure); separation of fact and opinion -generally applied when artists/entertainers sue arts and entertainment critics -theory: by placing your work in the public eye, you invite criticism -also applies to institutions whose work is made public, such as restaurants

Burden of Proof for Public Persons/Officials and Private Persons in Libel Cases

-public official plaintiffs must show that fault on the part of the defendant is at level of actual malice (official: public is justified in wanting to know because they serve the public) -public figure: plaintiff who is in spotlight voluntarily and must prove actual malice -private figures are usually required to show a lesser, easier to prove level of fault --> negligence

6 Sources of Law & How They are Created

1) Constitutional Law: set of laws that establish nature, functions, and limits of government 2) Statutory Law: written law formally enacted by city, county, state, and federal legislative bodies; [Black-Letter Law: formally enacted, written law that is available in legal reporters or other documents] 3) Equity Law: law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy 4) Common Law: judge-made law comprised of the principles and traditions established through court-rulings; precedent-based law; [Doctrines: principles/theories of law that shape judicial decision making 5) Administrative Law: orders, rules, and regulations promulgated by executive branch administrative agencies to carry out their delegated duties (FCC, etc.) 6) Executive Orders: orders from government executives (President), governor, or mayor that have the force of law

Elements of Libel

1) a statement of fact 2) that is published 3) that is of and concerning the plaintiff 4) that is defamatory 5) that is false 6) that causes damage (or harm) and 7) for which the defendant is at fault MUST PROVE ALL IN ORDER TO SUCCESSFULLY SUE FOR LIBEL

Tinker v. Des Moines Independent Community School District (1969) (Facts, Issue, Rule of Law, Analysis, Conclusion)

Facts: 1965, 3 public school students wore black armbands to school to protest Vietnam War; school said anyone who did so would be suspended for disrupting school activity. They did so anyway, refused to remove them, and were suspended. They sued, claiming a 1st Amendment violation; Federal District court dismissed the case; Tinker family appealed and US Court of Appeals 8th circuit upheld Issue: Is symbolic speech in a public school that doesn't cause disruption protected by 1st Amendment? Rule of Law: purely symbolic speech is protected free speech and extends to teachers and students Analysis: pure speech is most protected; politically charged views can't be banned solely because school doesn't agree. Fear symbolic speech will cause disruption is not enough - must have proof Conclusion: case reversed

New York Times v. Sullivan (1964) (Facts, Issue, Rule of Law, Analysis, Conclusion)

Facts: AL Supreme Court upheld a judgment awarding LB Sullivan (police commissioner) damages in a civil libel action; NYT appealed; Sullivan filed after NYT ran full-page ad for civil rights leaders Issue: Did AL's libel law, by not requiring Sullivan to prove speech was motivated by actual malice, unconstitutionally infringe on the 1st Amendment's freedom of speech and freedom of press protections? Rule of Law: Constitution guarantees a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves the statement was made with actual malice Conclusion: 9-0 ruling in favor of NYT (monumental case); (the 1st Amendment protects all publication except actual malice)

Gertz v. Welch (1974) (Facts, Issue, Rule of Law, Analysis, Conclusion)

Facts: policeman, Nuccio, killed youth, whose family got a lawyer to represent them in a civil case against him; Elmer Gertz (lawyer) was called a "Communist fronter" in American opinion magazine because he represented clients suing law enforcement; filed libel suit; district court ruled NYT standard applied, so publisher Welch escaped liability unless Gertz PROVED a falsehood was published with actual malice; appellate court affirmed judgment for Welch Issue: Does NYT standard requiring plaintiff to establish actual malice to bring defamation suit against public figure extend to private individuals? Rule of Law: more vulnerable to injury from defamation; only have tp prove negligence Conclusion: SCOTUS reversed and remanded; Gertz being private held a different standard than NYT

Marbury v. Madison (Rule of Law Est.)

Under Article IV, Sec. 2 of the US Constitution, the Supreme Court is implicitly given the power to review acts of Congress and to strike them down as void if they are "repugnant" to the Constitution

Compelling Government Interest

a government interest of the highest order, an interest the government is required to protect (ex: national security, the electoral process, and public health and safety)

Hate Speech & Constitutional Protections

category of speech that demeans others on basis of race, color, gender, ethnicity, religion, national origin, disability, and the like insulting speech is protected unless it incites immediate violence/disturbance of the peace

Supboena

command for someone to appear/testify in court or to turn over evidence (such as notes or recordings) with penalties for noncompliance

Negligence

generally, the failure to exercise reasonable or ordinary care; plaintiffs suing for physical harm usually argue media negligently distributed material that led to injury or death; must show media defendant had a duty of due care, breached that duty, and the breach caused the plaintiff's injury (ex: NBC not held accountable when 9 y/o was raped 4 days after airing "Born Innocent") - would be self-censorship

Grand Jury

group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and charges should be filed - do not determine guilt (county, state, or federal level; 12-23 members)

2-part Brandenburg Test from Brandenburg v. Ohio (1969)

incitement test allows government constitutionally to prohibit speech that is 1) directed toward inciting immediate violence/illegal action and 2) likely to produce that action (also requires proof that media content is likely to cause a reasonable person to act illegally)

Who/What can sue for libel?

individuals and businesses

Writ of Certiorari

petition for review by the Supreme Court ("to be informed of"); when a case poses a novel or pressing legal question

Tort

private or civil wrong for which a court can provide remedy in form of damages (provides mechanism for injured party to establish fault and receive compensation; standard of proof is lower than criminal cases)

Motion to Dismiss

request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way

Summary Judgement

resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgment; seek to avoid cost and loss, usually prior to trial

Probable Cause

standard of evidence needed for an arrest/to issue a search warrant; more than a mere suspicion, it is a showing through reasonably trustworthy info that a crime has been or is being committed

Chilling Effect

the discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right

Affirm

to ratify, uphold, or approve a lower court rating

Overrule

to reverse the ruling of a lower court

Remand

to send back to the lower court for further action (may not be appealed)