Mass media law notes

What are some important rules to understand when it comes to prior restraint cases involving the government?

1. Prior restraints on speech by the government are presumptively unconstitutional. The burden falls on the government to prove in court that a prior restraint is justified. 2. The government's burden is high, with courts often requiring it to prove there is a compelling interest justifying the restraint 3. The scope of any prior restraint must be very narrow, so as to not stop publication of any more speech than is necessary to serve the government's allegedly compelling interests 4. Speech that falls outside first amendment protection can be restrained by the government only after a court has determined that the speech is indeed not protected

What was the Smith Act?

A 1940 act that made it a federal crime to conspire to teach and advocate government overthrow

What are the Alien and Sedition Acts of 1798?

A law that forbade false, scandalous and malicious publications against the U.S. government, congress and the president. Also punished people who urged resistance to federal laws

What are the seven first amendment strategies that help SCOTUS judges develop a practical definition of freedom of expression?

Absolutist theory, ad hoc balancing theory, preferred position balancing theory, Meiklejohnian theory, Marketplace of ideas theory, Access theory, and Self-realization theory

What is the doctrine of counter speech?

Adding more speech to the marketplace of ideas to counteract or contradict disagreeable speech

What does the first amendment mean by "speech?"

Conduct

what is the marketplace of ideas theory?

Ideas should be aired freely and this will allow the public to compare competing ideas and the truth will be discovered

When is conduct treated as speech?

If 1. The person engaging in the conduct must intend to convey a particular or specific message with his or her conduct and 2. There must be a great likelihood, under the surrounding circumstances in which the conduct takes place, that some people who witness it will reasonably understand the particular message that was intended by the actor

What was the Espionage Act?

Passed in 1917, this law provided stiff penalties for spying on the U.S., aiding the enemy or interfering with army recruitment.

What was the Sedition Act of 1918?

Restricted freedom of speech by making derogative language against the United States criminal

What is the access theory?

The idea that freedom of expression is only easily available to those who have the economic means to get their voice out there, like newspaper owners and radio hosts. However the rise of the internet has helped to balance things out

What is self-realization/self-fulfillment theory?

The idea that speech is important to an individual regardless of its impact on politics or its benefit to society at large

What is Absolutist theory?

The idea that the government cannot censor the press for any reason

What is one specific issue that relates to freedom of expression?

The right of the people to criticize the government vs. the government's right to forbid the publication of ideas it believes to be harmful

True or false: some kinds of lies are not protected by the first amendment and can be punished, especially when they are intended to procure a material benefit

True

What does the first amendment mean today?

Whatever the SCOTUS says it means

What is Ad Hoc balancing theory?

When conflict occurs, it the responsibility of the court to balance the freedom of expression with other values on a case by case basis. (Ex: the right to freedom of expression must be balanced with the need for secrecy in the military)

What is prior restraint?

government action that seeks to prevent materials from being published

What is perjury?

lying under oath

what is Meiklejohnian theory?

the idea that freedom of speech and press are only protected in the constitution so that our system of democracy can function. Also, expression that relates to the self-governing process must be absolutely protected by the first amendment while expression that doesn't isn't protected absolutely

what is preferred position balancing theory?

the idea that the maintenance of all rights is dependent on free exercise of speech and press, thus freedom of expression is given a preferred position