MC 3080 - Test 1 - Unit 3 & 4

What is the clear and present danger test from Schenck v. United States?

(1919) Government has a right and a duty to prevent speech that presents a clear and present danger to the nation, doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm

What did Cohen v. California reveal about First Amendment protection for offensive speech?

- (Wore F*** the Draft shirt in LA Court) - Supreme Court acknowledged that court officials, like school administrators, have broad authority to maintain order and decorum. - However, if the speech did not disturb the court's functioning, government could not ban particular words it found offensive unless the words fell into an unprotected category such as obscene, incitement or fighting words - AND the Court said the 1st amendment protected both the content an emotional value of a message - Ex. His message wouldn't make an impact if he just said "Please don't support the war"

What did Whitney v. California indicate about whether membership in a party may be sufficiently dangerous enough to pose a clear and present danger?

The Court accepted, without evidence, that the Communist Labor Party was violent. Whitney's membership in the party WAS Sufficient to pose a danger that was imminent and constituted a threat that was relatively serious.

What is the modern day incitement test?

The incitement test allows punishment of "advocacy of illegal action" if the speech is... 1. Directed toward inciting immediate violence or illegal action and 2. Likely to produce that action

What are fighting words? How does the First Amendment protect them?

words not protected by the First Amendment because they cause immediate harm or illegal acts

What is hate speech?

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

What is the fighting words doctrine from Chaplinsky v. New Hampshire?

fighting words are not protected when by their "very utterance inflict injury or tend to incite immediate breach of the peace"

What is a public forum, a limited purpose forum, and a non-public forum?

limited purpose forum - public schools and universities, including school-sponsored events, publications, funding and physical spaces - as limited public forums

What are the four parts of the Central Hudson test and how has the US Supreme Court defined the key terms from that test?

1. Government may ban false and deceptive advertising and ads that promote illegal products or services. Once an advertisement meets that standard, the Court said, regulation is constitutional only if 2. government establishes a substantial state interest in the regulation 3. the regulation directly advances that interest and 3. the regulations the "least restrictive means" to achieve that interest so that it restricts as little free speech as possible Applying to this new test, the Court found the total ban on advertising in Central Hudson was unconstitutional

To win a lawsuit for injury caused by media negligence, what must a plaintiff prove?

1. reasonable foreseeability of harm 2. Proximate (directly related) harm - Plaintiffs generally fail to convince courts that media intentionally encourage people to harm themselves or others. Also must prove they demanded immediate action.

What is incitement?

the action of provoking unlawful behavior or urging someone to behave unlawfully.

What is a 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

Does the First Amendment allow governors to punish offensive speech on the basis of the viewpoint expressed by the speech?

No?

What type of commercial speech falls outside the scope of speech the First Amendment protects?

Regulate advertising that is false, misleading, or deceptive; or for unlawful goods and services

How did the incitement doctrine replace the clear and present danger test? (what court cases)

- Brandenberg v. Ohio (KKK member who promised "revengeance" against govt. officials) ruled that advocacy of using force does not remove speech from 1st amendment protection - Hess v. Indiana - Hess was arrested at an anti-Vietnam protest for disorderly conduct for using a curse word - Supreme Court reversed this saying his words were not intended to and not likely to provoke an imminent violation of the law - The Brandenberg/Hess rulings were meant to protect speech unless a speaker so inflamed a crowd that people responded to their emotions with immediate, illegal acts - The incitement test requires a plaintiff to show that media content would result in violent or unlawful activity immediately after media exposure, that is nearly impossible to prove

Why have Supreme Court justices questioned the soundness of the clear and present danger test?

- During the anti-communist wave in the 50s, Justice Hugo Black said the clear and present danger test did not protect unpopular or radical political positions - Members of the Court started to question the test and ruled that regulation of speech that is not narrowly tailored and does not address a problem more severe than mere expression is UNCONSTITUTIONAL - "Too often is it fear which inspires such passions, and nothing is more reckless or contagious" - Test was too flexible, subjective and easily swayed by political realities

What did RAV v. St. Paul indicate about regulating hate speech?

- Supreme Court reversed the decision that the boys should be punished for burning cross in black family's front yard - Five judges said the law was too narrow, or underinclusive, because it only punished specific subset of fighting words that the government found particularly objectionable. Thus, the law imposed unconstitutional viewpoint based discrimination - The other four judges said the law was overbroad, it punished too much speech. They said the law went beyond fighting words to punish speech that did not arise in face to face encounters and whose only harm was to prompt "generalized reactions" or hurt feelings. - Since RAV, most efforts to tailor a constitutional hate speech ordinance have failed

For example, what type of speech can only be regulated by regulations that pass the Central Hudson test?

Commercial speech

Why is NYT v. Sullivan significant for advertising and public relations law?

It gave advertising its First Amendment protection. Ads which that are communicated information, expressed opinions, and seek support on behalf of a movement are political speech and ARE protected by the First Amendment.

How has the incitement test been applied to determine whether producers of media content could be liable for inciting immediate unlawful activity?

It has only been applied once in the case of a book published called: Hit Man: A Technical Manual for Independent Contractors. Book publisher said it intended for criminals to purchase and use the book. Court said the First Amend didn't protect it because the book encouraged, aided, and abetted a crime

How is political communication by a corporation treated differently than commercial speech?

It is more protected

What are true threats, as the standard of law was described in Virginia v. Black and in Elonis v. US?

define: speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety - In Virginia v. Black, the Supreme Court ruled that the 1st amendment allows states to punish individuals who set crosses on fire with the intent to intimidate - Court said laws may constitutionally target a specific subset of fighting words, such as cross burnings, that is so intertwined with a clear and pervasive history of violence that it constitutes a true threat - In Elonis v. United Staes, the SC avoided the 1st amendment question of when Internet posts constitute true threats punishable by law - The SC did not decide whether the "true threats" exception to the 1st amendment 1. covers only statements said with the purpose of putting someone in fear 2. applies also to statements said knowing that the target will be put in fear 3. applies also to statements said knowing that there's a serious risk that the target will be put in fear or 4. covers all statements that a reasonable person would view as aimed at putting the target in fear Summary: Virginia v. Black concluded that punishment of true threats is acceptable under the Constitution. Court said that Elonis should not have been charged for posting scary violent rap lyrics promising to kill his wife and kindergartners. Said that online threats, like any criminal conviction, requires a showing that the defendant intended to violate the law and make a true threat

What is symbolic speech?

expression that might anger or upset people does not cross the line into hate speech, fighting words, threats or incitement, does not take the form of words (nonverbal expression) ex. burning flags, wearing armbands, marching through the streets, court says symbolic speech DOES deserve 1st amend protection in some cases but as rejected the view that "an apparently lmitless variety of conduct intends thereby to express his idea", only actions closely akin to pure speech are viewed as symbolic speech