MMC4200 Exam 2:

Free Speech in Public vs. Private Schools:

(Not universities, but down below.) Public Schools: -Had some first amendment rights, but not the same as if off campus. -Not coextensive with rights of adults off campus. Private Schools: No rights. Only rights were what were established by heads of school.

I <3 Boobies: B.H. v. Easton Area School District:

-2013 3rd US Circuit Court of Appeals concluded that students had a first amendment right to wear breast cancer awareness bracelets saying "I <3 Boobies! (Keep a Breast)" after schools tried to get it banned under Fraser for lewd/vulgar language. -Said the bracelets were not plainly lewd and the school failed to show substantially disrupt proof under Tinker. -SCOTUS rejected school's writ, did not rule on whether age of students makes a difference in how a court decides banned/non banned language.

Connecticut vs. Baccala:

-2017 Connecticut Supreme Court case. -Lady berates manager of retail store calling him fat and dumb. -Court overturns her conviction. -While offensive, she was constitutionally able to say what she did. -Mangers must take more abuse verbally. -SCOTUS didn't hear case.

Transformative Use Test:

-A test to determine whether a creator has transformed a person's name, picture, likeness, voice or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator. -Does it add commentary? Does it add quality? Is it a literal depiction? -Are people buying this because they like the artwork or because they like the Three Stooges? -If there are added elements to the image, has parodied it, used a name in a song, lampooned the person, or used likeness as a vehicle for expression of ideas of opinion, then freedom of expression takes importance.

The Simpsons:

-App where you can simpson-ize your image. -Frank Sivero: plays mob characters in movies, was in Goodfellas. -Sivero sues for simpsons looking character, says "This is me." -The court rules for Simpsons, says it was transformative enough. -Didn't care that he lived next to two Simpsons writers. -A challenged work goes beyond literal depiction when a product is so transformed it has become its own expression.

Chaplinsky v. New Hampshire (1942)

-Chaplinsky, member of Jehovah's Witnesses, called police officers goddarn racketeers and darned fascists. -Tried and convicted of violating state law forbidding offensive or derisive speech/name calling in public. -Supreme Court affirms decision 9-0, creating fighting words doctrine.

Unprotected Categories of Speech:

-Child pornography involving real minors/Obscenity -Fighting words -Incitement to violence -Certain types of libelous statements -Advertising that is false, misleading, or about an unlawful product or service.

Who would overrule Tinker?

-Clarence Thomas: If given a chance, he would overrule Tinker as kids are better seen, not heard.

When Consent Might Not Work:

-Consent today may not be valid in the distant future, especially if i is gratuitous oral consent. -Some people (minors, wards of the state) cannot give consent. -Consent to use a photograph does not apply if the image is materially altered or changed.

Three key factors in a true threats analysis:

-Content Actual words being used. -Context If in a rally or rap, more hyperbole may be used. -Audience Reaction Watts vs. US

Dual Communicative Functions of Speech:

-Conveys ideas capable of relatively precise, detached explication and also emotions. -Words are chosen for emotive and cognitive force.

Who is trained to take on more abuse than others in jobs?

-Customer service members. -Police officers. -Managers of retail stores (in Connecticut)

Right of Publicity:

-Don't leave me alone, but do pay me. -Property right -Celebrities -Focus on economic rights.

Watts vs. US

-During Vietnam war, LBJ rally, Watts says "If I'm drafted and they put a rifle in my hand, the first person I'm going to kill is LBJ." -Court has to see if it's a true threat, but they say no bc it was political hyperbole. -Most people actually laughed after he said what he said.

Hulk Hogan v. Gawker

-Gawker posts sex tape without his awareness. -Sues for IIED, wins. -Media may face liability for IIED postings. -Didn't have to do 5th because it was a private/actual fact causing the harm.

George Wendt & John Ratzenberg Case:

-Host International runs restaurants, used in airports a bar that had robots that looked like Norm and Cliff, named Hank and Bob. -If a character is based off of someone/a character that is tied to the base, then you need to get permission from the person they are based off of. -The 9th US Court of Appeals ruled a performer doesn't lose the right to control the commercial exploitation of his or her likeness merely by portraying a fictional character in a motion picture or television series.

Two ways of IIED Liability for Media:

-How you gather the news. (Outrageous publishing tactics) Ex: KOVR-TV v. Superior Court. -Publishing the news. (outrageous messages) Ex: Armstrong v. H & C Communications.

Incitement to Violence:

-I am trying to incite you to attack violently against other people. Trying to get you to make violent or unlawful contact with someone else. -Started in 1969 in Brandenburg v. Ohio. -Modern day version of clear and present danger test (1919).

Consent:

-If you consent to allowing people to use your name in connection with a product, you will lose unless: 1) You are a minor (need parent/guardian consent). 2) Mentally challenged. 3) Consent has lapsed. 4) They went beyond scope of consent.

Why was the Cohen case important/why it was heard by SCOTUS:

-It deals with censorship of vulgarity (offensive speech) and political speech. -Refers to the draft. -It is criticism of the government.

Why did Morse lose down below?

-It didn't really lead to substantial/material disruption? -Some students threw coke bottles at each other, but that was it. -Bethel wouldn't apply because it's not sexually lewd/vulgar/etc. -Hazelwood doesn't apply because banner wasn't school sponsored.

Appropriation:

-It is illegal to use an individual's name or likeness for commercial or trade purposes without consent. -Oldest of four privacy torts, used to be most comprehensible.

Right to Privacy:

-Leave me alone. -Emotional tranquility. -Privacy: a private ability to control how you are used. -One (defendant) who appropriates to his/her own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.

Intentional Infliction of Emotional Distress (IIED):

-Legal cause of action: a legal theory where someone is seeking compensatory relief. -Tort. -Would a reasonable person in the same place have suffered severe distress? (Avoids eggshell plaintiff). -Law always more skeptical of emotional injuries. -Traditionally this involved conduct, not speech until 1980s.

Expansion of Right of Publicity:

-Look-Alike -Sound-Alike or Voice-Alike -Catch Phrases -Robots/Objects -Videogame Avatars

Online/Social Media Threats:

-Lower courts split, Supreme Court silent so far. -If the student later downloads or accesses it on school grounds and shows it to others on campus, then the school has jurisdiction under Tinker. -Reasonably foreseeable that it would cause substantial or material disturbance.

The Producers:

-Mel Brooks satirizes Nazis with big banners in The Producers, and when a school makes them for a play in 2016, the superintendent takes them away not understanding the context they were to be displayed, but allows smaller ones on wristbands. -No lawsuit was filed, but disturbing on grounds of political correctness and interference with artistic freedom. -Hazelwood would have been used since it was a school-sponsored play.

True Threats Characteristics:

-More than hyperbole: it is about being put in fear of physical injury or death. -Speaker: means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. -Intent to communicate. -Speaker: need not intend to actually carry out the threat and need not have the means to carry it out. -Recipient: Fear of bodily harm or death.

Defenses and Exceptions a defendant can assert against a plaintiff:

-News and Public Interest Exception -Consent -Incidental use/Booth rule -Deceased

Florida Post-Mortem Statute:

-No person shall use for purposes of trade or for any commercial or advertising purposes the name, portrait, photo, or other likeness of any natural person without the express, written or oral consent. -If such person is deceased, any person, firm, corp. authorized in writing to license the commercial use of her or his name or likeness, or if no person, firm or corp is authorized, then by any one from among a class composed of her or his surviving spouse and surviving children. -Lasts for 40 years after the death of a person before it goes into public domain.

It is nevertheless often true that "...." Identify the key word from this statute that the quote helps to illustrate as it applies to what Cohen was accused of violating.

-One man's vulgarity is another's lyric. -Vulgarity: was not vulgar bc not directed at someone specifically or in a sexual way.

News and Public Interest Exception:

-Originally New York ruled against this being an allowed. -SCOTUS ruled the fact that newspapers and books and magazines are sold for profit does not deny them the protection of liberty of expression. -Very hard to determine what is newsworthy or what is news for entertainment purposes. -Convergence of information and marketing is contested issue, as advertising and editorial content go together and bring up potential exemption cases. -Can use people public/private in those events. -If you are pictured voting and posted in the alligator, you can be used. -Do not need to get permission if connected to a newsworthy story.

Why is Bethel not a Tinker case?

-Passive Expression v. Active Expression -Tinker did not speak so you could look away, Fraser did so all had to hear. -Pure political speech vs. Non-political speech. -Captive audience situation: Auditorium was captive audience that could not walk out. Tinker did not force people to look.

Fighting Words Criteria:

-Prohibited so long as the statutes are carefully drawn and do not permit the application of the law to protected speech. -Said in personal, face-to-face encounter. (Ex: Baseball manager yelling at umpire face-to-face. -Directed at someone (personally abusive epithets). -All context specific.

Snyder v. Phelps (2011)

-Protects hate speech in 2011 by Westboro Baptist Church. Facts: -WBC believes soldiers are killed as punishment for the US accepting homosexuality. -Protestors from WBC protested Matthew Snyder's funeral peacefully from 1000 ft away where police told them to, holding signs saying God Hates Fags etc. but not saying anything of Matthew specifically. -Albert saw on news that they were protesting, sues for tort liability for IIED, seeks monetary compensation. Issue: -Whether or not first amendment protects church's speech against liability for IIED and invasion of privacy. Ruling: -SCOTUS rules for WBC. -Held the speech in question dealt with matters of public concern (Political/moral conduct of the US, catholic misconduct, homosexuality). -The Church members had the right to be where they stood w/o violence. -Cannot prevent pain by preventing someone's right to speak on public issues. -Alito dissents, saying this was verbal assault not public debate. -Not fighting words because not held face-to-face or cursing. -Even though Snyder is private figure, it did not matter: What matters here is the speech is matter of public concern and is done so peacefully where they were told to stand.

Knox vs. Commonwealth of Pennsylvania:

-Rapper that makes song called F**k the Police. -After arrested, he posts this, but claims subjective intent was not to cause harm. -The Supreme Court of Penn. upheld the true threats doctrine, but other courts say otherwise. -Focused on actual naming of the police officers in their ruling, and that in background, there were sirens and gunshots going off. -Supreme Court may take up this, but minimalism is kicking this case down the road.

Differences between right of privacy and right of publicity:

-Right to privacy was meant to protect an individual from the emotional damage that can occur. Right to publicity is an attempt to remunerate individuals for the economic harm suffered. -Only well known people have a legally recognized economic value in their names or likenesses, and except in unusual cases, they are the only ones who can sue for damage to their right to publicity. The average person can only assert emotional damage in a right of privacy suit. -Celebrities can pass on property right in their name to heirs for after death suits. Private people lose right to privacy when they die.

Booth Rule:

-Shirley Booth: pictured in Holiday magazine, used for advertisement of magazine later. -News publication can reuse someone to tout a product. -After image is shown in news content, you can use the image in advertisements. -NOT just in place for rebroadcast of information. -Broadcast news: so long as story actually is aired later after promotional use in earlier news, they are protected.

Bell v. Itawamba County School Board (2015)

-Student makes rap to call out sexual assault by coaches at high school. -Tinker applies because he intentionally directed the rap at the school community, leading to a substantial disruption that reasonably could be forecast. -Pertained to school events, called out two teachers by name, threatened safety to third parties. -Bell filed writ in 2015, SCOTUS denied it. Courts conclude that: 1) A public school does have jurisdiction to punish its students for their off campus created speech posted online if the speech is directed at or otherwise targets other students or school officials. 2) Tinker's substantial and material disruption standard supplies the correct test for determining if punishment in any given case is justified.

Viewpoint Discrimination:

-The government restricts and restrains one side of a debate but not the other. -The government should be neutral in the marketplace of ideas.

Fifth Part of IIED for Celebs:

-The parody/satire amounted to statement of fact, not opinion. -That it was a false statement of fact. -That the person who drew the cartoon/wrote the article knew it was false, or exhibited reckless disregard for the truth or falsity of the material (Actual malice).

True Threats:

-Those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. -I say something to you that puts you in fear of reasonably bodily harm or death. -Started in 1969. -Fighting words can be used preemptively. -True threats place you imminently in the line of violence.

Fighting Words:

-Those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. -Are not essential to explain ideas, are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. -I say something to you that is personally abusive, and you are going to fight me because of it. -Started with Chaplinsky vs. New Hampshire. (1942). -Inherently likely to lead to violent reaction.

Woods vs. Rush

-Tiger Woods wins the masters, has an artist (Rush) who paints Woods winning the masters. -Sues Rick Rush, says violated right of publicity. -Rush wins -Finds work does contain significant transformative elements and is less likely to interfere with the economic interest protected by Woods' right of publicity. -Does not capitalize solely on a literal depiction of Woods: consists of collage of images.

Harris Faulkner Case:

-Toy Hamster vs. Hasbro -Harris Faulkner sued for naming of Littlest Pet Shop pet after her, settles lawsuit.

Legitimate pedagogical concerns

-Ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences. -Schools often try to block stories that make the teachers/admin look foolish.

V.A. v. San Pasqual Valley Unified School District (California)

-VA cannot take a knee in protest during anthem. -Order granting motion for preliminary injunction. -District court says you cannot stop him from taking a knee, he's taking passive speech. -Got rule from Bethel v. Fraser, Hazelwood, and Tinker. -Falls within the speech governed by Tinker. -Kneeling is easily interpreted as own expression not endorsed by the school. -All that happens is he kneels peacefully without incident, at an away game, a few students from other high school made racial slurs and sprayed cheerleader toward other football players of his team.

First amendment exceptionalism:

-We give a protection to hate speech. -In US, we protect a lot of hate speech in favor of protecting public debate.

What is not resolved about true threats?

-What level of intent must defendant have? -Is it enough to convict if reasonable person in your position would be put in fear of imminent bodily harm/death, or do we have to ask if speaker subjectively intended to put you into that position? -Does the speaker have to have the intent to put you in that fear of bodily harm, or does that matter at all? =If intent makes a difference, what level of intent do I have to have?

Woodie Allen vs. American Apparel:

-Woodie Allen billboard use without his consent as he was playing a rabbi character. -Reaches $5 Million settlement with American Apparel.

Incidental Use:

-You are in the background of a commercial for a split second. -Media is protected so long as image is fleeting. -Said it would cause an undue burden on expressive activities to penalize every single fleeting use.

The types of things that constitute commercial uses:

1) Use of a person's name or photo in an ad on TV, on radio, in newspapers, in magazines, on the internet, on posters, on billboards, and so forth. 2) Display of a person's photograph in the window of a photographer shop to show potential customers the quality of work done by the studio. 3) A testimonial falsely suggesting that an individual eats the cereal or drives the automobile in question. 4) Use of an individual's name or likeness in a banner ad or some other commercial message on a website. 5) The use of someone's likeness or identity in a commercial entertainment vehicle like a feature film, a TV situation comedy or novel.

First time SCOTUS extended first amendment rights to schools:

1969

Post-Mortem right of publicity:

A number of states have survival statutes: you (celeb) die, but after death they can give their likeness to someone as a property right.

Leonard Law

California statute - If you are in a private non-religious affiliated school, you have the same first amendment rights as those in public schools.

Hazelwood School District v. Kuhlmeier (1988) Legal Standard:

Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored publications as long as their actions are reasonably related to "legitimate pedagogical concerns." Pedagogy: Learning or education. Reasonably: don't have to be directly related or tied to. Legitimate: Not important, compelling, substantial. Low threshold.

Privacy and Publicity both have the same _______.

Elements.

Why is Cohen not a fighting words case?

F**k was not used directed at another person.

Michael Jordan Cases:

Facts: -2010 suit against Safeway Inc. contending the companies (Jewel and Dominick) used his likeness without permission in the edition to tout their brands. -"Michael Jordan...you are a cut above." "Jewel-Osco salutes #23 on his many accomplishments." Issue: -Said to be violating Illinois Right of Publicity Act, the Lanham Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act and the common law tort of unfair competition. Ruling: -2015 lawsuit settled against Jewel Food Stores Inc. and Dominick's Finer Foods LLC. based on the unauthorized use of the basketball legend's likeness in a 2009 special edition of Sports Illustrated. -Dominick went to trial & lost $8.9 Million, Jewel did not.

Bette Midler case:

Facts: -Bette Midler successful case against Ford. -Do You Wanna Dance, Ford wanted to use it in their commercial. -She said no, they used a backup singer who sounded like her. -Sued Ford Motor Company, saying they used her for advertisement. Ruling: -If unclear who the singer is, they can sue. -Court rules for Middler saying a singer manifests themselves in their song and to impersonate it is to pirate her identity. -When the distinctive voice of a widely known professional singer is deliberately imitated, this can amount to an appropriation.

Olivia N. vs. NBC:

Facts: -Born Innocent movie depicts character being raped by plumber helper and girls in home for troubled youth. -The movie is protected by first amendment. -Kids watch the movie and rape Olivia N. (minor) with a coke bottle. -Olivia N. sues Born Innocent makers and NBC for broadcasting it. Ruling: -Court rejects negligence cause of action, but applies Brandenburg. -No intent to cause harm. -Not likely to occur. -Imminence: happened a few days afterwards. -Olivia loses.

KOVR-TV Case:

Facts: -Cameraman & Reporter knocked on door, three little girls answer the door. 11-7-5 -Dark outside, big city, big light rolling. -Little girls said they knew the girls from next door, reporter says that their neighbor had murdered the girls and committed suicide, getting huge reaction shot. -KOVR did not broadcast the interview. -Parents sue for IIED. Issue: -Interviewing children without parental consent. -KOVR claims free press, didn't intend to cause harm. Ruling: -Case balances free press vs. children rights. -Court: Minors home alone, too young to consent to interview, private residence, given no choice to have images/voices captured. Video shows strange adult uninvited. -Alarming absence of sensitivity.

Cohen v. California (1971)

Facts: -Criminal case. -Wore a "F**k the draft" shirt into a court room to protest the Vietnam war when he went to testify in another suit. -He allegedly violated the California Penal Code s 415, which prohibits maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct. -Convicted: given 30 days in prison. -Folded jacket up and put it over his arm when he entered the court room. -Court took case because of the Vietnam war controversy and court wanted to protect speech critical of government policy, also f word becoming popular. Issue: -Does his speech fall into an unprotected category of speech (obscenity/fighting words). Ruling: -Statute is about conduct, court points it is about speech. Pure speech case (printed words). -SCOTUS: "We now reverse" -California needs to show his speech falls into unprotected category of speech, fails. -We need to protect the emotive content of statements. -Offensive political speech in a public speech is protected under this case. -The court says censoring a word may risk ban -Absent more particular and compelling reason for its actions, the state may not with the 1st and 14th amendments make this display of a four letter word a criminal offense.

Tinker v. Des Moines Independent School District (1969)

Facts: -During Vietnam war. -Who: Christopher Eckhardt (16), John Tinker (15) and Mary Beth Tinker (13) -Tinker children objected to the war, fashioned homemade black peace sign arm bands worn during school to protest and call for truce over holiday season. -School creates a rule prohibiting their wearing of them, said they could cause fights. Issue: -Tinker kids take the case all the way to the Supreme Court saying it violates their free speech. -Kids have rights, but there has to be a line to see when they can censor your speech in school. Ruling: -Students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. -Narrow ruling in favor of the Tinker kids. -Schools can censor (in public school) if there are actual facts that predict the speech will cause substantial & material disruption of the educational atmosphere or interference with rights of other students. -There were no facts that would actually lead the school in Des Moines to think there would be a disturbance, so Court rules for them. -Applies in public elementary schools.

Johnny Carson Case

Facts: -Former host Johnny Carson: Here's Johnny. -Port-o Potty guy uses the catch phrase to name his company: Here's Johnny: World's Foremost Commodian. Issue: -Carson sues because he endorses other products. Ruling: -Even though Carson doesn't say the phrase, it is so closely connected with him that he has the ability to control it. -Can get away with using this catch phrase in an artistic work because it's artistic expression.

Lindsay Lohan v. GTA

Facts: -GTA V has a character named Lacey Jonas, but Lindsay says that the character is her. -Says she is the voice of a generation. -Image was used on promotional materials. Ruling: -Five-judge panel in Manhattan rules that her suit had no merit, saying the game's unique story, characters, dialogue, and environment with the player's ability to choose the storyline rendered it a work of fiction and satire. -They say the computer generated image may constitute portraits within the meaning of that law, but that the images are not recognizable as Lohan.

Hustler vs. Falwell (1988)

Facts: -Hustler posts parody of Rev. Jerry Falwell, says is parody and fiction at bottom in small disclaimer. -Falwell sues for invasion of privacy and libel over accusations in it that he slept with his mother and drinks before he goes to pulpit. Ruling: -Invasion of privacy is dismissed. -Jury said no person could possibly believe it described actual events, but did award him $200K in damages for emotional distress. -Hustler appeals, but 4th circuit upholds the ruling for Falwell, so it goes to Supreme Court. -Court unanimously rules for Hustler, noting that though gross, there can be little doubt that political cartoonists/satirists would be subjected to damages awarded without any showing that their work falsely defamed its subject. -Say remedy should have been to fight in court of opinion, not law. -Create fifth element of IIED. -Court balances the common law for IIED against 1st amendment free press interest to mock, criticize, and poke fun. -If private figure instead of public (had mother been alive, etc) and sued, they would only need to have 4 elements.

Lohan Legally Mauled by Pitbull:

Facts: -In "Give Me Everything," Pitbull uses lyric "I got it locked up like Lindsay Lohan." Issue: -Lindsay is upset and sues alleging she didn't consent to or authorize the use of her name and that it constituted appropriation. Ruling: -Feb. 2013 judge dismisses suit saying under NY misappropriation statute, the use of an individual's name even without his consent is not prohibited if that use is a work of art. -Use in a song does not constitute use for advertising. -Use was incidental.

Nwanguma v. Trump (6th Cir. 2018)

Facts: -Incitement to violence claim. -Spawned from Trump campaign rally March 1st, 2016 in Louisville, KY. -Guma and other plaintiffs are protesting at the rally, later pushed by two individuals and shouted at (Korean war vet and white nationalist). -Trump sees the protesters and says "Get them out of here" five times. Later on says "But don't hurt her, I always get in trouble for the media. -Guma sues Trump and two individuals. -They stipulate in answers that they would not have done what they did if Trump had not said to get her out of there. Issue: -Had to see if the first amendment immunizes Trump from punishment under state law. Ruling: -For Trump because he did not specifically indicate imminent lawless action. -Trump's words may have a tendency to use force, but did not advocate for listeners to take unlawful action. -Was trying to get his security to take people away, not anyone specifically identified. -Doesn't use words of violence. -There is no tendency test. -"Don't hurt them" undercuts the alleged violence part. -Unmistakeable and consistent focus on the actual words used by the speaker. -The fact two people followed his words doesn't make a difference. Counter: -Context might have needed to be paid more attention to since he was doing so sarcastically.

Morse v. Frederick (2007)

Facts: -Joseph Frederick: wants to get on TV today with duct tape, holds up 13-14 ft banner saying "Bong Hits For Jesus." -Joseph said his language was meaningless, funny, and done in order to get on TV, principal Morse says it is a pro-drug message conflicting with school (take DARE money). -Frederick suspended for 10 days. Issue: -Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events. Ruling: -The 9th circuit court of appeals rules first amendment protects a student's right to unfurl, while standing on a sidewalk across the street from his high school. -SCOTUS rules Frederick's rights were not violated, saying schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. -Decision limited in scope to nonpolitical speech that advocates or celebrates the use of illegal drugs. -Extended to use against mass violence threats. -Kennedy and Allito concur to emphasize that had Frederick had social/political commentary, they might have ruled for him.

Bradenburg v. Ohio (1969)

Facts: -KKK member leader Brandenburg, klan holds rally in corn field with camera crew, burn cross, use usual anti jew anti black rhetoric. -He is arrested and convicted for inciting violence by saying that if the entities at large do not take a stand, they may have to take revenge. Issue: -Abstract advocacy on unlawful conduct vs. speech unprotected under the test. Ruling: -Court says you can say this in abstract all you want, but not if it applies to the Bradenburg test. -No one was around, it was not likely that people would be harmed. -His speech was conditional: if, possible, might. -Not advocating the harm, speaking in the abstract.

Elonis vs. United States (2015)

Facts: -Man writes about wife who obtained a protection from abuse (PFA) from him in angry facebook rap post with violent insinuations. -Says rap is not to be taken literally, so any threats of his are entertainment. -Sentenced to 44 months in jail. -After female FBI agent investigates him, he posts more violent lyrics now directed at her. -Prosecuted under federal statute making it a crime to transmit in interstate commerce any communication containing any threats to injure another person. -3rd Court of Appeals upholds decision, Elonis appeals to Supreme Court. Issue: -Elonis says his intent makes a difference because he never intended to put them into fear. Is it really true threats? Ruling: -As of 2016, 3rd Circuit Court of Appeals ruled that, even had a jury considered his intent, no jury would have doubted Elonis knew his lyrics would intimidate his targets. -Supreme Court rules against third circuit, reversing the ruling. -Supreme Court remands decision without solving the main issue, merely addressed statutory grounds for conviction (subjective intent). -3rd Circuit later upholds their ruling, saying Elonis clearly knew, intent didn't make any difference, all that matters is he meant to communicate the message to see. A reasonable person would interpret it as threatening.

Natural Born Killers (1994)

Facts: -Movie satirizes societies' love for violent killers. People go and kill people in it. "The media made them superstars." -A couple of people who are on drugs watch movie, go to convenience store, and shoot the clerk, rendering her to a wheelchair. She sues and claims the movie inspired and led to her harm. Brandenburg test: -Had no intent to cause harm, just wanted to entertain. -Not face to face. -No imminence: gap between movie coming out and violence happening. -Not likely to cause harm: out of millions who see movie, only two cause harm.

Herceg vs. Hustler Magazine

Facts: -Orgasm of death. -Hustler gives editor note saying do not attempt method, saying facts of autoerotic asphyxiation is merely for educational purposes not instruction. -Minor tries practice after taking magazine and dies. -Mother/friend finds him with magazine at his feet. Ruling: -Lower court ruled Troy had been incited, appellate court said it could not prove he had been incited. -Hustler is cleared non-responsible for inciting the death.

Kate Dean:

Facts: -Rare instance where the Supreme Court ruled a school violated the rights of another under Hazelwood. -Utica High School Arrow article reported on lawsuit between UCS and two local residents, Joanne and Rey Frances, depicting how bus fumes led to injuries and illnesses to them. -Arrow is school sponsored and for credit. -Editor Katy Dean writes balanced and accurate article, but school removes it because of inaccuracies (citing USA Today) and pseudonyms. -ACLU files lawsuit for Dean. Ruling: -Dean wins. -Judge says school's claims were faulty and lacking in credibility, also it did not raise any privacy concerns like in Hazelwood case, include sexual speech, or make grammatical errors. -Violated rule against viewpoint-based discrimination as they said the article wouldn't have been removed if it took district's side of the case.

E.A. Sports v Hart & Keller

Facts: -Rutgers QB Ryan Hart an Arizona State QB Sam Keller sue on separate occasions for having their likeness and biographical information included in NCAA Football video game. -Never says players' name anywhere, but uses statistics and colors. Issue: -ASU and Rutgers QBs say their likenesses are being exploited. -EA says this is transformative: putting them into context of the video game. Rulings: -Hart: 2013 3rd US Circuit Court of Appeals rules the transformative use test applies and that a mere literal depiction of a celebrity recreated in a different medium is not transformative use. -Hart's identity was not transformed, avatar looked a lot like him. -Context was the same in game as in real life. -Keller: 2013 9th Circuit Court of Appeals ruled very similarly against EA. -Games have them doing the exact same things they are being made famous for in real life. -Led to EA ending the production of the video game, settled.

Vanna White v. Samsung (1992)

Facts: -Samsung had advertising campaign: things we know today will change radically in the future, but Samsung products will keep working. -"Longest running gameshow, 2012 A.D." robot that looks like her next to wheel of fortune looking board. -White sued Samsung, saying it suggests it doesn't take a person to turn the letters. Ruling: -Won, court said it was a use of her image. -She wins but it was a huge stretch: there were dissents. -When does it become too much to sue because something looks like a celebrity?

Armstrong v. H&C Communications (1991)

Facts: -Six year old girl was abducted in Orlando. Later a body is found and turns it in. Police Department fails to identify until ten months later. -When memorial service is held, a reporter goes to police department to see skull, stages police officer to remove it from the box to get a video of it. -Reitz showed aversion to broadcasting the tape, but allows it to be given to the advisor. -Meeting is had where it is says "F**k it! We're going to run it." -No one had seen the film before this is made. -Ramsey said the quote when anchor and reitz is not for airing (Do not tell family of it). -Broadcast airs, skull is shown, Armstrong family unexpectedly sees and scares 12-year-old sister, creating outrage. Issue: -Family alleged Channel 2 should have known that the family did not wish to display the skull. Ruling: -Trial court dismissed the case for outrage. -Intermediate court reversed.

Bullard v. MRA Holding LLC.

Facts: -Supreme Court of Georgia 2013 Decision -Illustrates first category of commercial use. -Lindsey Bullard claimed the use of her photo on a box cover for Girls Gone Wild constituted misappropriation. -A video of her flashing her breasts ended up in MRA Holding's possession and they used a screenshot. -Image appeared on TV and internet ads. Ruling: -Georgia's high court rules Bullard can be seen as endorsing College Girls Gone Wild video in the use of her image, rejecting the notion that her consent to be videotaped amounted to consent for MRA Holding to use her image on the box cover. -She did not give permission for them to use her image promotionally.

Victor v. Manteca Unified School District

Facts: -Victor wore shirt saying "No one knows I'm a lesbian" and was told to remove it. -Vice Principal said she was not allowed to display her sexuality on clothing, said it violated dress code by being disruptive. Another admin said it was promoting sex and was an open invitation to sex. Settlement: -She could wear shirt to school and school would change dress code to clarify students will not be prohibited from wearing clothing, jewelry, personal items that express self identification with or support for individuals or groups on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion or sexual orientation. -The school retained a consultant on first amendment rights. Ruling: -Students don't leave first amendment rights at schoolhouse gates. -Schools cant censor the personal beliefs of students just because they think it might be controversial.

Bethel School District v. Fraser (1986)

Facts: -Matthew Fraser at Student Government Forum gives nominating speech for Jeff Coolman in front of entire high school full of double entendre, sexual innuendo speech where friends "Hooted and Yelled." -Some graphically simulated actions described. -Two teachers had to take time to describe to students that this was wrong behavior. -Fraser is suspended from school, which he is upset about because he is applying to college. -He and his dad sue for equitable remedy, say the school was violating his freedom of speech to give governmental speech for friend. Issue: -Lower courts asked was 2 or 3 teachers taking time out of lesson equal to a substantial or material disruption? Ruling: -No. -Supreme Court reverses and rules for Bethel School District. -Schools may censor expression that is sexually lewd, indecent, or offensive, aka that undermines a school's basic educational mission. -It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse, as society has an interest in teaching students the boundaries of socially appropriate behavior.

Hazelwood School District v. Kuhlmeier (1988)

Facts: -Principal censored the school newspaper (The Spectrum) by completely removing two pages containing articles about teen pregnancy and the impact of parental divorce on children. -The articles did not use names, but school concerned identities may nevertheless be known, text unbalanced. Really nervous about PR scandal. -The articles were a part of a paper published as part of school curriculum. Issue: -Was it okay to censor the story? -Hazelwood concerns the authority of educators over school-sponsored publications. Ruling: -The censorship was permissible under the first amendment. Schools can censor out material bc of ungrammatical material, poorly written, inadequate research, bias, vulgar or profane material, unsuitable for immature audiences. -May not have necessarily applied to an extracurricular paper in same situation. -Didn't note if this applied to collegiate papers. -Kuhlmeier loses the case.

Four Parts of an IIED Tort:

Four Parts: -The defendant's conduct was intentional or reckless (I intended to cause/it was reasonably foreseeable that my conduct would cause emotional distress and I didn't stop it). -The defendant's conduct was extreme and outrageous (Conduct that goes beyond the bounds of decency and is utterly intolerable in a civilized society.) -The defendant's conduct caused the plaintiff emotional distress (Did the defendant's actions really cause the emotional distress? Or did something else cause it?). -The emotional distress was severe (substantial and enduring.)

Bradenburg Test:

Free speech does not permit a state to forbid or proscribe advocacy of the use of force or of law except... -Where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. -Directed: speaker must intend. -Imminent lawless action: timeliness requirement between speech and action. Proximity and time must be close. -Likely: Is speech going to incite such action? -Substantially likely to occur. If any of these missing, the speaker will be protected.

Why didn't they extend Leonard's law to religious schools?

Freedom of religion may be messed with, causing another issue.

Constitutional avoidance:

If the Court can resolve a case on statutory grounds without ever reaching the constitutional issue, then it should do so.

Virginia v. Black (2003)

Issue: -What about symbolic acts that attempt to communicate the same kind of message as hate speech, such as burning a cross? Facts: -St. Paul Minnesota ordinance banned the display of a burning cross or Nazi Swastika or any writing or picture that arouses the anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender. -Minnesota courts approved it saying "arouses...others" is another term for fighting words. -High court disagrees. Ruling: -Shot down ordinance because it was content based and only applied to fighting words that insult or provoke violence on the basis of race, color, creed, or gender. -Later, the court revisited the decision and said a state can proscribe cross burning without infringing on first amendment freedoms so long as the state made it a crime to burn a cross with the purpose to intimidate the victim. -Intimidation factor is the key, leads to true threats creation.

Stricklin v. Stefani (and live nation) (W.D. N.C. 2018)

Issue: Can we hold Stefani liable to something someone did? Facts: -At a concert, plaintiff attended in reserved seating. -Stefani allowed people to come on down closer to fill in seating that was open. -Plaintiff was terrified as crowd came moving forward, leaves seat and moves forward to try to escape, trampled and forcibly pushed into a wall, breaking her tibia. -She is suing for negligence. 1) Owed plaintiff duty of reasonable care. 2) Stefani breached that duty. 3) Her breach was an actual and proximate cause of Plaintiff's injury. 4) Plaintiff felt harm as a result. Ruling: -Stefani says her speech was protected, says using her artistic expression to enhance their concert experience is not dangerous, but the court rejects it. -SCOTUS says her speech doesn't fall within a Brandenburg speech category. -She cannot create a "sweet escape" of her own where she is not liable for negligence. It is not a song, it is an instruction. -Her being in person giving instructions harmed her case.

Comedy III Inc. v. Gary Saderup Inc.

Issue: Where do we draw the line of artistic expression vs. ability of control where likeness is used if in something? Facts: -Comedy 3: Owns Three Stooges estate. -Saderup does a lifelike artwork of the Three Stooge, allegedly used the likeness without permission by putting it on products. -Saderup says this is free speech. Ruling: -Court draws line: has to see if it is transformative of the image of the Three Stooges. -Court says Saderup made too realistic of an image for personal gain, not transformative enough, violating publicity rights.

Kansas v. Meadors:

Issue: -Can swearing sometimes amount to fighting words, particularly when an unfriendly tension already exists between the individuals involved? Facts: -Divorced couple sharing custody of children gets into altercation where husband berates her with "I hate you" and other bad words. -The husband was arrested on disorderly conduct, he claims his first amendment rights were violated. Ruling: -Court decides his language was fighting words and that a threat of violence is not needed in order for speech to be fighting words. -A threat is merely another factor to be considered by the courts when determining whether the words spoken were fighting words. -Legislators must be very precise when they try to carve out statutory exceptions for unprotected speech.

Klen v. City of Loveland

Issue: -Does swearing at members of a government committee to express frustration with their actions (or lack thereof) constitute fighting words? Facts: -10th Circuit Court of Appeals ruling Edward and Stephen Klen were building contractors upset at what they perceived to be unreasonable, deliberate delays over the issuing of permits by officials in Loveland. -Used profanities on multiple occasions out of frustration when discussing delays with officials. Ruling: -10th Circuit Court of Appeals rules language didn't constitute as fighting words because there is no indication their words were accompanied by provocative gestures or threats. -Use of vulgar or offensive language didn't try to provoke a fight, but express idea they were upset. -Offensive speech is not necessarily the same as fighting words.

Jason Olive:

Jason Olive: $1 Million right of publicity. Used likeness in a General Nutrition Centers thing after right expired. Successful out of California appellate court. GNC admitted it was unauthorized but they contested the damages. He got $213K in actual damages, $910K in emotional distress damages. They went beyond scope of consent.

What is the remedy the Court suggests? Would it be effective if Cohen had spoken the words?

Look away; no because you cannot avoid it.

The various aspects of a person's identity that are subject to illegal uses:

Name -Stage names, pen names, pseudonyms count as real names in eyes of law. -Names of businesses, corporations, schools and other things are not protected under the law. Likeness -Characters they play in shows. -Photo doesn't have to be facial shot. -"Clear representation of identifying features" Voice -May be encompassed in name or likeness cases.

Are there specific fighting words?

No: no list.

Tort:

Non-contractual civil wrongdoing suit.

First Amendment only protects ______ places.

Public

Why is Cohen not an obscenity case?

Speech is not erotic: very niche group would be satisfied.

Legal Standard in Tinker:

Students have a first amendment right to express their opinions even on controversial subjects if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others. -An undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.

Dariano v. Morgan Hill Unified School District

The Facts: -Students wanted to wear American flag shirts on Cinco de Mayo. The Issue: -Is it right for a school to ban certain clothing under certain circumstances? The Rule: -The judge upheld Morgan Hill Unified School District's decision to ban the American flag gear, citing recent ongoing racial tensions and gang violence may make the choice in clothing leas to a substantial disruption of the educational atmosphere. -A near-violent event surrounding the American flag wearing had happened last Cinco de Mayo, which reasonably forecast trouble at school from clothing.

Barber vs. Dearborn Public Schools (2003)

The Facts: -Where: Dearborn, Michigan at Dearborn High. -Many residents had fled here to avoid Saddam Hussein. -What: Barber wore shirt labeling George W. Bush as an international terrorist to express disliking of his policies and the war in Iraq to school. Went through 3 class periods without any pushback, until 1 student complained to the assistant principal at lunch. Had relative in Iraq, other veterans in family. Told to remove the outfit or turn it inside out, be he refused and warn home to file federal lawsuit. Issue: -Lawsuit challenged whether the school violated Barber's free speech and political expression rights. Ruling: -Duggan ruled the case was more a Tinker case than a Bethel or Hazelwood case. -Reasoned that the school officials' decision to ban Barber's shirt only can withstand constitutional scrutiny if they show that the shirt caused a substantial disruption of or material interference with school activities or created more than an unsubstantiated fear or apprehension of such a disruption or interference. -Ruled he did not find any of this, so Barber won his case.

What court commonly uses constitutional avoidance?

The Roberts' court.

K.A. v. Pocono Mountain School District

The Tinker test has the requisite flexibility to accommodate the age related developmental, educational, and disciplinary concerns of elementary school students.

Oldest Public School Speech Case:

Tinker v. Des Moines

Only case where kids win in front of Supreme Court on free speech:

Tinker v. Des Moines

Three Key School-Speech Cases Prior To 2007 (In Summary)

Tinker: -School officials may regulate speech that they reasonably believe will materially and substantially disrupt or interfere with classwork, educational activities and/or discipline. Hazelwood: -Schools may regulate speech that is school sponsored and/or that is part of the school curriculum, so long as the censorship is reasonably related to legitimate pedagogical (teaching and learning) concerns. Bethel: -Schools may regulate sexually offensive speech that is lewd, vulgar or indecent (they also can regulate obscene speech since it is without first amendment protection); Fraser's language about speech that would undermine the school's basic educational mission also is used successfully by some schools to ban images and ads for drugs, tobacco, and alcohol.

Elements of Right of Privacy:

Unauthorized -You did not give consent to the use. -Exceptions: some cannot give consent, consent may have expired. Use of -Can be basic: billboard, newspaper, photos of haircuts in windows. Another's Name/Likeness -Expanded beyond a name and likeness. -Stage names included, drawings. For Benefit/Advantage -Commercial

Is hate speech protected under the First Amendment?

Yes - It is protected by first amendment unless words that are hateful are used in either of the three contexts/categories.

Duane Rede:

You can get sued for using people's likeness to insinuate that they shop at your place.