Media Law

Obscenity

-Whether the average person, applying contemporary [local] community standards would find that the work, taken as a whole, appeals to the prurient (obsessed) interest. -Whether the work depicts sexual conduct in a patently offensive way. -Whether the work taken as a whole, lacks serious literary value.

Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions:

1) On its face violates a provision of the Constitution (facial challenge) 2) Attempts to distort or rig the political process 3) Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.

US courts apply strict scrutiny standard in 2 contexts:

1) when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by Due Process or "liberty clause" of the 14th amendment 2) When a government action applied to a "suspect classification", such as race, national origin, or religion.

Gertz v. Robert Welsh Question: Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public figure?

5 votes for Gertz, 4 against Legal Provisions: Speech, Press and Assembly The Court reversed the lower court decision and held that Gertz's rights had been violated. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. However, continued Powell, the actual malice standard did not lose all significance in cases involving ordinary citizens as he advised states to use it in assessing claims for punitive damages by citizens suing for libel.

Miller v. California Conclusion: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

5 votes for Miller, 4 against In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States, holding that "the basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value" The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.

Roth v. United States Conclusion: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?

6 votes for US, 3 against In a 6-to-3 decision, the Court held that obscenity was not "within the area of constitutionally protected speech or press." The court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance". The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominate theme of the material taken as a whole appeals to prurient interest". The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Written by Brennan, he later reversed his position on this issue in Miller v. California (1973)

Liquormart v. Rhode Island Conclusion: Is Rhode Island's statute an infringement on the First Amendment right to commercial freedom of speech? If it is, can Rhode Island still pass such legislation under the Twenty-first Amendment which limits the dormant Commerce Clause by empowering the states to regulate the sale of alcohol?

9 votes for Liquormart, 0 against • Yes and no. In a fractious opinon for a unanimous Court, Justice Stevens found Rhode Island's statutory ban on liquor price advertising to be an unconstitutional infringement of the liquor sellers' First Amendment right to freedom of speech. In response to Rhode Island's claim that it passed the statutory ban to protect consumers from "commercial harms," Justice Stevens held that governmental impediments to truthful and accurate commercial messages rarely protect consumers. On the contrary, courts must take "special care" when considering such "protective" measures since they often hinder public choice and obstruct necessary debate over public policy issues. Furthermore, Rhode Island failed to show that its statutory ban would lower market-wide liquor consumption, must less alter alcohol consumption among abusive drinkers who are most in need of assistance. Finally, Justice Stevens held that although the Twenty-first Amendment did empower Rhode Island to regulate the sale of liquor, such regulatory power is not to be exercised to the detriment of its constitutional obligation to protect and abide by the First Amendment's freedom of speech guarantee.

Cohen v. CA, 1971 facts of the case

A 19 year old department store worker expressed his opposition to the Vietnam War by wearing a jacket with "F*** THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturbing the peace and quiet of any neighborhood or person [by] offensive conduct" Cohen was found guilty and sentenced to 30 days in jail.

Fundamental Rights

A group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process. Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional. Examples of fundamental rights not specifically listed in the Constitution include: the right to marry and the right to privacy, which includes a right to contraception and right to interstate travel.

Why is it important to know about New York Times v. Sullivan?

Actual Malice test for libel was established in this case

Why is it important to know about Gertz. v. Robert Welsh?

Because after that, ordinary individuals were allowed more protection from libelous statements than individuals in the public eye. ?

Due Process

Fair treatment through the normal judicial system. Principle that an individual cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards.

Chaplinksy v. New Hampshire facts of the case

Chaplinksy was convicted under a State statute for calling a City Marshal a "G-d damned racketeer" and a "damned fascist" in a public place. Facts: A New Hamsphire statute prohibited any person from addressing any offensive, derisive, or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinksy, a Jehovah's Witness, called a City Marshal a "G-d damned racketeer" and a "damned fascist" in a public place and was therefore arrested and convicted under the statute. Issue: Did the statute or the application of the statute to Chaplinsky's comments violate his free rights under the First Amendment of the Constitution?

NY Times v. Sullivan, 1963 Facts of the case

Civil Rights leaders published a full-page ad in the New York Times alleging an "unprecedented wave of terror" (corruption was going to occur) against those pressing for desegregation. The ad alleged that the arrest of Rev. Martin Luther King Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blanks to vote. L.B Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper. Sullivans name wasnt menitioned in the newspaper. The add contained some small errors. THe errors were libel, so thats how he could sue for actual malice. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgement.

The Hicklin Rule

Defined obscenity in terms of its effects on the most susceptible members of society. Allowed a work to be ruled obscene based on isolated passages taken out of context If any part of a book or other work had the tendency to deprave or corrupt any person (such as a child or overly sensitive individual) who might happen to see the work, the material was obscene and no person could buy it or see it. In 1957, the Supreme Court ruled in Roth v. US that the Hicklin rule was inappropriate, and the Roth test became the new test for obscenity

Gertz v. Robert Welch Inc. (1974) Facts of the Case

Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist -fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz lost his libel suit because a lower court found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964)

Actual Malice

In United States law is a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that is was published "with reckless disregard of whether it was false of not"

Intermediate Scrutiny

Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To past intermediate scrutiny: 1. The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. 2. Government action to restrict speech is valid if narrowly drawn to advance a substantial state interest 3. Only has to be a substantial interest to limit commercial speech (as an example) 4. Also includes content neutral time/place manor speech (ex. Cant honk horn in neighborhood after XYZ time), these regulations relate to a specific time, time and place restrictions -intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases. Examples: Laws preventing house-to-house pamphleteering after 10 p.m, local ordinance preventing chalking on city sidewalks (content-neutral regulation), challenge of school policy requiring students in a public high school to wear uniforms

Miller v. California (1973): Facts of the Case

Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.

Strict Scrutiny

Most rigorous test used by courts to determine the constitutionality of laws that restrict speech. To pass strict scrutiny, the legislation must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

Did the statute or the application of the statute to Chaplinsky's comments violate his free rights under the First Amendment of the Constitution?

No. The lower court is affirmed. The Court set forth a "two-tier theory" by which certain "well-defined and narrowly limited" classes of speech receive no constitutional protection. Time has weathered the two-tier theory. Libelous publications and even verbal challenges to police officers have been granted constitutional protection Considering the purpose of the First Amendment of the Constitution, it is obvious that the right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include "fighting words", words that inflict injury or tend to excite an immediate breach of the peace. Such words are of such little expositional or social value that any benefit they might product is far outweighed by their costs on social interests in order and morality. The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law, has defined the Statute as applying only to "fighting words". Therefore, the Statute does not unconstitutionally impinge upon the right of free speech

Fighting Words

Words which would likely make the person whom they are addressed commit an act of violence. Fighting words are a category of speech that is unprotected by the First Amendment. Chaplinsky v. New Hampshire.

What must an individual prove to win a libel case?

Public persons must prove actual malice. Private persons in matter of general public interest: state law, but must prove at negligence (intermediate scrutiny) AND the actual malice standard required to award punitive damages. Private persons in matter of private interest: state law

Liquormart v. Rhode Island (1995) Facts of Case

Rhode Island passed a statute banning the advertisement of retail liquor prices in places where liquor is not sold. Petitioners filed suit claiming that the statue violated their First Amendment right to freedom of speech. The District Court found the ban unconstitutional, noting that it did not serve any interest Rhode Island might have had in promoting temperance. The Court of Appeals reversed, holding that open competition for liquor pricing would be harmful insofar at it would increase consumption. The Supreme Court granted certiorari. (a writ or order by which a higher court reviews a decision for a lower court)

Roth v. United States: Facts of the Case

Roth operated a book-selling business in New York and was convicted of mailing obscene materials and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products

Virginia Pharmacy Board v. Virginia Consumer Council (1976) Facts of Case

The Virginia Consumer Council brought suit against the Virginia State Board of Pharmacy, challenging a 1968 state law that said it was unprofessional conduct for a licensed pharmacist to advertise prices of prescription drugs. The council claimed that the First Amendment entitled users of prescription drugs to information about drug prices and that to prohibit pharmacists from providing that information through advertising and other promotional means was unconstitutional. The three-judge district court agreed, and the Supreme Court, by a vote of 7 to 1, affirmed.

Rational Basis Test

The level of judicial review for determining the constitutionality of a federal or state statute that does not implicate either a fundamental right or a suspect classification under Due Process and Equal Protection Clause of the constitution. When a court concludes that there is no fundamental liberty interest or suspect classification at stake, the law is presumed to be Constitutional unless it fails the rational basis test. Under the rational basis test, the courts will uphold a law if it is "rationally related" to a" legitimate government purpose." The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it. This test is the most respectful of the 3 levels of review in due process or equal protection analysis, and requires only a min. level of judicial scrutiny. Ex. courts use the rational basis test when analyzing the constitutionality of statutes involving age discrimination, disability discrimination, or the Congressional regulation of aliens.

Footnote Four

US v. Carolene Products Company in 1938, decision by the United States Supreme court is best known for "Footnote Four". Court established the system of heightened scrutiny for laws targeting "discrete and insular minorities", compared with the lower scrutiny applied in this case for economic regulations. Case dealt with federal law that prohibited filled milk from being shipped in interstate commerce. The court applied minimal scrutiny (rational basis review) to the economic regulation in this case. Footnote Four introduced explicitly to Supreme Court jurisprudence the idea of levels of judicial scrutiny and established the rational basis test.

Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

Unanimous Decision for New York Times Company. Legal Provisions: Amendment 1: Speech, Press and Assembly. The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity) Under this new standard, Sullivan's case collapsed.

When can government regulate commercial speech?

When it is misleading and untruthful, when government interest is substantial, when regulations advanced the government interest, when the regulation is no more extensive than necessary.

What kinds of speech constitute fighting words?

Words directed at individuals, intended to incite, aimed at hostile crowds.

Did California's statute, prohibiting the display of offensive messages such as "F*** the Draft," violate freedom of expression as protected by the First Amendment?

Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric" In doing so, the Court protected 2 elements of speech: The emotive (the expression of emotion) and the cognitive (the expression of ideas)

Virginia Pharmacy Board v. Virginia Consumer Council: Conclusion Is a statutory ban on advertising prescription drug prices by licensed pharmacists a violation of "commercial speech" under the First Amendment?

Yes. in a 7-to-1 opinion, the Court held that the First Amendment protects willing speakers and willing listeners equally. The Court noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit, or involves financial solicitations, is protected. The Court concluded that although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful competitive pricing terms.

Commercial Speech

a US legal term relating to speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product.

Libel

a published false statement that is defaming someones character using fighting words. Libel is written or broadcasted, slander is spoken. In a lawsuit, person must prove the statement about him/her is a lie

Fair Comment

a statement of opinion (no matter how ludicrous) based on facts which are correctly stated, and which does not allege dishonorable motives on the part of the target of the comment. The U. S. Supreme Court has ruled that to protect free speech, statements made about a public person (politician, officeholder, movie star, author, etc.), even though untrue and harmful, are fair comment unless the victim can prove the opinions were stated maliciously---with hate, dislike, intent and/or desire to harm. Thus, a public figure may not sue for defamation based on published opinions or alleged information which would be the basis of a lawsuit if said or published about a private person not worthy of opinion or comment. Fair comment is a crucial defense against libel suits which is put up by members of the media.

Why is it important to know about Roth v. United States?

the Court for the first time addressed that obscenity is not protected by the First Amendment.

Why is it important to know about Virginia Pharmacy Board v. Virginia Consumer Council?

the Court for the first time held that commercial speech is entitled to First Amendment protection. Since Virginia Pharmacy Board the Court has continued to provide some protection for commercial speech, but less than for non-commercial speech. In assessing the interest of government in regulating protected speech, the Court requires that this interest be "compelling" in the case of non-commercial speech but only "substantial" for commercial speech.