Communication Law Chapters 7-11
New York Times v. United States
"Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. The Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment."
Press Enterprise v. Superior Court (II)
(2) Does the standard for closed preliminary hearings under the California Penal Code violate the constitutional rights of the public? Yes. The California court should have asked whether there was a substantial probability that the accused's right to a fair trial would be prejudiced, and whether any reasonable alternatives to closure could protect that right.
United States v. Progressive
1979. a federal judge issued a preliminary injunction stopping publication of a magazine article that specified "three key concepts necessary to construct a hydrogen bomb". the judge ruled determined that the article included information "not found in the public realm" and that the possibility of a direct effect of violence was likely. Little precedential value because it never reached the appellate court because a newspaper in wisconsin published the same information
"mother****er" trilogy
3 cases in which authorities sought to suppress people for saying the word in public. Rosenfeld v NJ, Brown v. OK, Lewis v. City of NOLA
Cohen v. California (landmark case)
A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "**** THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. 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 two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
Pentagon Papers
A 7,000-page top-secret United States government report on the history of the internal planning and policy-making process within the government itself concerning the Vietnam War.
Gooding v. Wilson
A Georgia state court convicted Johnny Wilson of violating a state statute. On appeal, Mr. Wilson argued that the statute violated the First and Fourteenth Amendments. The Georgia Supreme Court rejected the argument. Yes. The Supreme Court held that the Georgia statute was unconstitutional. With Justice William J. Brennan writing for the majority, the Court reasoned that the statute was unconstitutionally vague and overbroad. Quoting Speiser v. Randall, the Court noted that "the separation of legitimate from illegitimate speech calls for more sensitive tools than (Georgia) has supplied." Chief Justice Warren E. Burger dissented. He disagreed with not only the manner in which the majority reached its decision, but also its conclusion. Ultimately, he argued that the statute was narrowly tailored and did not suppress or deter "important protected speech."
Nebraska Press Association v. Stuart
A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused. The Court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, the unanimous court held that the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights.
Bigelow v. Virginia (landmark case)
A Virginia statute made it a misdemeanor for "any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, [from encouraging] or [prompting] the procuring of abortion or miscarriage." Bigelow, director and managing editor of the Virginia Weekly, was convicted under this law when his newspaper ran an advertisement for an organization which referred women to clinics and hospitals for abortions. The Court held that the Virginia law infringed upon Bigelow's First Amendment rights and violated the Constitution. Citing prior holdings such as New York Times v. Sullivan (1964), Justice Blackmun denied the Supreme Court of Virginia's ruling that commercial speech is not afforded First Amendment protection. Furthermore, the advertisement in question contained important information in the "public interest" which went beyond merely informing readers of a commercial service. Finally, the Court feared that the Virginia statute had the potential to "impair" national and interstate publications which might choose to carry similar advertisements.
post facto punishment
A concept which allows a message to be sent, but punishes the source of the message after communication has taken place.
Sixth Amendment
A constitutional amendment designed to protect individuals accused of crimes. It includes the right to counsel, the right to confront witnesses, and the right to a speedy and public trial.
Central Hudson Test
A four-part test used by the courts for determining restrictions on commercial speech. The Central Hudson test has a threshold prong - does the speech concern lawful activity and is it non-misleading. If it meets these requirements, then there are three other prongs: The government must have a substantial interest. The regulation must directly and materially advance the government's substantial interest. The regulation must be narrowly tailored.
Bantam Books v. Sullivan
A group of book publishers were suing a state commission created to take preventative action to stop juvenile delinquency, "to educate the public concerning any book . . . or other thing containing obscene, indecent or impure language" that could corrupt youth. The commission carried out this responsibility by threatening the distributors of material deemed to be "objectionable" with prosecution in an attempt to suppress obscene material. In the majority opinion, Justice Brennan addressed the arguments made by Rhode Island, writing that through its use of threats of prosecution, the commission engaged in actions that amounted to informal censorship. Furthermore, these actions constituted acts of the state under the Fourteenth Amendment because the commission operated "under color of state law."
Press Enterprise v. Superior Court (I)
A nurse in California was charged with killing 12 patients by administering massive doses of heart medication. During a preliminary hearing in the Superior Court of California, Riverside County, the nurse moved to exclude the public. California law requires preliminary hearings to be open to the public unless a closed hearing is necessary to protect the accused's right to a fair trial. The judge granted the motion because of the the national publicity surrounding the case. Additionally, the Press-Enterprise Co. was denied a transcript of the proceedings. (1) Does the public's constitutional right to access criminal proceedings extend to pre trial proceedings? The Supreme Court held that the First Amendment right of public access applies to preliminary hearings. Closed preliminary hearings are only permissible when specific findings on the record show that closure is essential.
compatible use rule
A refinement of time, place, and manner rules: The question being whether the manner of expression is incompatible with the normal activity of a particular place at a particular time.
Canon 35
A rule prohibiting courtroom photography and radio broadcasting of federal criminal trials. However, states adherence to this rule was voluntary.
fair trial
A trial that follows the correct processes & procedures, with an independent judge/jury
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. On appeal from an adverse ruling by a three-judge District Court panel, the Supreme Court granted the Virginia State Board of Pharmacy review. 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.
symbolic expression
Action that warrants some First Amendment protection because its primary purpose is to express ideas.
Richmond Newspapers v. Virginia (landmark case)
After a series of mistrials in a murder case in the state of Virginia, a trial judge closed the trial to the public and the media. Defense counsel brought the closure motion; the prosecution did not object. Two reporters of Richmond Newspapers, Inc. challenged the judge's action. The Court held that the right to attend criminal trials was "implicit in the guarantees of the First Amendment." The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas. The Court also noted that the First Amendment guaranteed the right of assembly in public places such as courthouses. The Court emphasized that "certain unarticulated rights" were implicit in enumerated guarantees and were often "indispensable to the enjoyment of rights explicitly defined."
secrecy agreements / prepublication review
Agreements federal employees sign to withhold publishing or sharing government information that may be deemed classified, or at least to have the government review whatever they plan on publishing and censor all classified information.
shield laws
Laws that give reporters some protection against having to reveal their sources
Davis v. Massachusetts
An ordinance in the City of Boston prohibited any person from making "any public address" on public grounds without permission of the mayor. In 1894, Rev. William F. Davis attempted to preach in Boston Commons, a public park. Davis was arrested, fined, and jailed for violating the ordinance. Davis appealed his conviction, arguing, in part, that the Fourteenth Amendment Due Process Clause's protection of property entailed a right to access public property. In a unanimous opinion authored by Justice Edward D. White, the Court found the law did not contain "any proof whatever as to the nature of the ownership in the common from which it can be deduced that the plaintiff...had any particular right to use the common apart from the general enjoyment."
United States v. Washington Post
Another part of the "Pentagon Papers Case", the Nixon administration attempted to prevent the Post from publishing the Pentagon Papers, arguing prior restraint was necessary for national security. This was overturned by the Supreme Court, with the logic that the government did not provide enough evidence to justify prior restraint.
Collin v. Smith
Any restrictions on First Amendment rights require strict scrutiny. The Nazis must be allowed to march through a Jewish neighborhood.
commercial speech
Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.
Virginia v. Black
Black arrested for a cross burning. Appealed. Court rules yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined.
Brown v. Oklahoma
Brown, used the word twice to refer to police posted at a speech he delivered at the University of Tulsa. Supreme Court vacated the convictions and questioned whether the speaker's choice of words threatened imminent violence. In this case, the remarks were part of a public diatribe, directed towards no one.
Cantwell v. Connecticut
Cantwell and sons (Jehovah's Witnesses) arrested for (1) violation of a Connecticut statute requiring solicitors to obtain a certificate before soliciting funds from the public, and (2) inciting a common-law breach of the peace. In a unanimous decision, the Court held the Cantwells' actions were protected by the First and Fourteenth Amendments. Justice Owen Roberts reasoned that while general regulations on solicitation were legitimate, restrictions based on religious grounds were not. Because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments. Maintenance of public order cannot be used to justify the suppression of "free communication of views."
Chaplinsky v. New Hampshire (landmark case)
Chaplinsky was distributing literature that supported his beliefs as a Jehovah's Witness and attacked more conventional forms of religion. He was arrested and convicted under a state law that prohibited intentionally offensive, derisive, or annoying speech to any person who is lawfully in a street or public area. Writing for a unanimous Court, Justice Frank Murphy upheld Chaplinsky's conviction. The Court identified certain categorical exceptions to First Amendment protections, including obscenities, certain profane and slanderous speech, and "fighting words." He found that Chaplinsky's insults were "fighting words" since they caused a direct harm to their target and could be construed to advocate an immediate breach of the peace. Thus, they lacked the social value of disseminating ideas to the public that lay behind the rights granted by the First Amendment. A state can use its police power, the Court reasoned, to curb their expression in the interests of maintaining order and morality.
Cincinnati v. Discovery Network
Cincinnati decided to revoke permits allowing the Discovery Network to distribute advertisements from 38 news racks on city property because of an ordinance prohibiting the distribution of commercial handbills on public property. Discovery Networks and Harmon Publishing challenged the legality of the ordinance under the First Amendment. The district court and the Sixth Circuit Court of Appeals ruled against Cincinnati. The Supreme Court voted 6-3 in affirming the lower courts' decisions. The Court rejected the Cincinnati ordinance, noting that the removal of a small number of news racks did little to advance the city's interests in safety and aesthetics. In short, it was not a reasonable fit.
three-part public forum rule
Created in PERRY v PERRY Created 3 ways to classify public property: 1. Quintessential public forums (all purpose) 2. Public property that the state has opened for expressive activity (limited purpose) 3. Public property that is not by tradition or designation a forum for public communication (non-public)
Rosenfeld v. New Jersey
David Rosenfeld used the word 4 times while speaking at a school board meeting. Supreme Court vacated the convictions and questioned whether the speaker's choice of words threatened imminent violence. In this case, the remarks were part of a public diatribe, directed towards no one.
Doe v. Michigan
Doe v. University of Michigan (1989) was a case dealing with speech codes on college campuses and the overarching First Amendment right to free speech. The University of Michigan enacted a policy that they hoped would prevent discriminatory hate speech on their campus by prohibiting racist, sexist, homophobic, etc. statements. John Doe, a graduate student at this university, thought comments he made in the classroom as a biopsychology student could be considered offensive and result in punishment from the university. Doe thought this restriction infringed upon his constitutional right to free speech and brought a case against the university in court. The court ruled in favor of Doe, finding the university's policy to be too vague and broad— the university could not constitutionally restrict speech just because it may be offensive to some.
FCC V. Pacifica Foundation
During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. His list included shit, piss, ****, ****, ********er, mother****er, and tits. The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son. No. The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions. "[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."
Terminiello v. Chicago
Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot. In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Justice Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
Irvin v. Dowd
Facts: Leslie Irvin was convicted for a murder in Evansville, Indiana. Case received extensive publicity. Press called defendant "Mad Dog Irvin," and "Confessed Slayer of Six." Importance: The USSC stated that statements by jurors could be given little weight when so many jurors admitted to prejudice against the defendant so many times.
Privacy Protection Act of 1980
From ZURCHER The Privacy Protection Act of 1980 is legislation passed in the United States that protects journalists and newsrooms from search by government officials. The act protects "work products" and "documentary materials." A subpoena must be ordered by the court to gain access to the information.
Gentile v. State Bar of Nevada
Gentile was a defense attorney with a mafia client. -Said during press conference that people confessing against his client were paid by cops. -State bar had strict rules about what lawyers could and couldn't say. -Nevada's limits on attorney speech are too vague, but some limits are justified -Lawyers are officers of the court and must act with care. Gag orders are ok if they deserve it. -Lawyers are news sources that can be gag ordered.
Mutual Film Corporation v. Industrial Film Commission of Ohio
In 1913, Ohio established a board of censors for motion pictures under the auspices of the state's Industrial Commission. Mutual Film Corporation operated a motion picture exchange, leasing or selling annually roughly five thousand prints of films to exhibitors in Ohio and Michigan. The prints could not be exhibited in Ohio without the censor board's approval and all the films were reviewed at the corporation's expense. The Supreme Court dismissed Mutual Film's contentions that Ohio's law impeded interstate commerce, violated freedom of speech and publication under Ohio's constitution, and delegated legislative power to the board of censors.
Hague v. Congress of Industrial Organizations (landmark case)
In 1937, the Committee for Industrial Organization (CIO) gathered in New Jersey to initiate a recruitment drive. Police shut down the meeting based on a city ordinance that forbade labor meetings in public. Arguing that the ordinance violated the First Amendment protection of freedom of assembly, the CIO filed suit against several city officials. A District Court and the United States Court of Appeals for the Third Circuit agreed and invalidated the ordinance. In a plurality opinion authored by Justice Owen J. Roberts, the Court concluded that the actions taken by police violated the First Amendment, as applied to the states by the Fourteenth Amendment. The public long has used streets and parks to assemble and transmit ideas and speech on issues of public concern. Thus, the ordinances were void.
Feiner v. New York
In 1949, Irving Feiner, a white student at Syracuse University, made an inflammatory speech on a street corner in Syracuse, New York. In urging his racially mixed audience to fight for equal rights, Feiner made several disparaging remarks about local politicians, organizations, and President Truman. Two officers on the scene, fearing violence, asked Feiner to end his speech. After he refused, the officers arrested Feiner for inciting a breach of the peace. A trial court found Feiner guilty and sentenced him to thirty days in prison. On appeal, Feiner argued his arrest violated his right to free speech under the First Amendment. In a 6-3 opinion the Court upheld Feiner's arrest. The Court applied the "clear and present danger" principle it originally articulated in Schenck v. United States (1919). According to the Court, Feiner's arrest was a valid exercise of "the interest of the community in maintaining peace and order on its streets." The Court reaffirmed that a speaker cannot be arrested for the content of his speech.
Pittsburgh Press v. Pittsburgh Commission on Human Relations
In 1969, consistent with the ban on employment discrimination in Title VII of the 1964 Civil Rights Act, the city of Pittsburgh adopted an ordinance mirroring Title VII's prohibition on employment discrimination on the basis of sex unless sex is a "bona fide occupational qualification" (BFOQ). In October 1969, the National Organization for Women (NOW) filed a complaint with the Pittsburgh Commission on Human Relations charging the Pittsburgh Press Company with violating the ordinance by allowing employers to place sex-designated ads for jobs in which sex was not a BFOQ. In a 5-4 decision, with Justice Lewis F. Powell Jr. announcing the decision, the Court upheld the Commission's order, basing its decision on the commercial speech doctrine that allows states more leeway in regulating advertisements, or pure commercial speech, as opposed to political speech.
Zurcher v. Stanford Daily
In 1971, officers of the Palo Alto, California, Police Department obtained a warrant to search the main office of The Stanford Daily, the student newspaper at the university. It was believed that The Stanford Daily had pictures of a violent clash between a group of protesters and the police; the pictures were needed to identify the assailants. The officers searched The Daily's photographic laboratories, filing cabinets, desks, and waste paper baskets, but no materials were removed from the office. In a 5-to-3 decision, the Court held that the "third party" search of the newsroom did not violate the Fourth Amendment. The Court held that such searches, accompanied by warrants, were legitimate when it had been "satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises."
Adderley v. Florida
In Adderley v. Florida, 385 U.S. 39 (1966), the Supreme Court found no violation of federal law or of the First Amendment in the arrest of students demonstrating against segregation at a county jail in Florida and against the arrest of other protestors.
Amalgamated Food Employees Union v. Logan Valley Plaza
In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968), the Supreme Court held that the state courts of Pennsylvania could not enjoin peaceful union picketing by nonemployees directly in front of a nonunion grocery store in a private shopping mall. In the majority opinion, Justice Thurgood Marshall explicitly drew an analogy between municipally owned business centers (such as town squares) and a shopping mall.
Boos v. Barry
In Boos v. Barry, 485 U.S. 312 (1988), the Supreme Court ruled that a District of Columbia law violated the First Amendment by banning the display of signs criticizing a foreign government outside that government's embassy.
Cameron v. Johnson
In Cameron v. Johnson, 381 U.S. 741 (1965) and 390 U.S. 611 (1968), the Supreme Court first remanded the case — concerning allegations that a Mississippi anti-picketing statute was overly broad and was designed to discourage civil rights activities — and then affirmed a lower court's dismissal of injunctive relief.
Ladue v. Gilleo
In City of Ladue v. Gilleo, 512 U.S. 43 (1994), the Supreme Court ruled that city officials could not flatly prohibit homeowners from displaying political signs on their own property.
Edwards v. South Carolina
In Edwards v. South Carolina, 372 U.S. 229 (1963), the Supreme Court ruled that South Carolina had violated students' First Amendment rights of peaceable assembly, speech, and petition when the police dispersed a peaceful protest against segregation. The case illustrates one of the roles played by the First Amendment in the civil rights movement of the 1950s and 1960s.
Ohralik v. State Bar Association
In February 1974, 18-years-olds Carol McClintock and Wanda Lou Holbert were seriously injured when an uninsured motorist hit the vehicle McClintock was driving in their hometown of Montville, Ohio. When Albert Ohralik, a local attorney, learned of the accident, he visited McClintock in the hospital and offered to represent her in exchange for a portion of the proceeds collected from her insurer. Ohralik also approached Holbert at her home and obtained her oral assent to representation, which he secretly tape-recorded. Both women eventually discharged Ohralik and filed grievances with the local bar association, which in turn filed a formal complaint against Ohralik with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio (Board). The Board found that Ohralik violated provisions of the Ohio Code of Professional Responsibility that banned a lawyer's in-person solicitation of employment to a non-lawyer and publicly reprimanded him. On appeal, the Supreme Court of Ohio rejected Ohralik's claim that his conduct was protected under the First and Fourteenth Amendments and increased the sanction against Ohralik to indefinite suspension. No. Justice Lewis F. Powell, Jr. delivered the opinion for the 8-0 majority. The Court held that a state may constitutionally discipline a lawyer for soliciting clients in person and for financial gain under circumstances likely to pose dangers that the state has a right to prevent.
heckler's veto
In First Amendment law, a heckler's veto is the suppression of speech by the government, because of [the possibility of] a violent reaction by hecklers. It is the government that vetoes the speech, because of the reaction of the heckler. Under the First Amendment, this kind of heckler's veto is unconstitutional.
Forsyth County Georgia v. Nationalist Movement
In Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992), the Supreme Court established limits for city permitting schemes in ruling that a county's ordinance violated the First Amendment.
Grayned v. Rockford
In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court ruled that a city's anti-picketing ordinance was overbroad and violated the Fourteenth Amendment's equal protection clause. However, the Court upheld the anti-noise ordinance, finding that it was narrowly tailored to meet the city's compelling interest in having undisrupted schools. Therefore, the anti-noise ordinance did not violate First and Fourteenth Amendment protections of freedom of speech. "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."
Greer v. Spock
In Greer v. Spock, 424 U.S. 828 (1976), the Supreme Court decided that, despite First Amendment protections, areas on military bases generally open to the public were not necessarily open to civilians seeking to distribute political literature or engage in political forums.
Hudgens v. National Labor Relations Board
In Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976), the Supreme Court ruled that there was no right to exercise free speech in privately owned malls under the First Amendment.
International Society for Krishna Consciousness v. Lee
In International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), the Supreme Court held that a regulation prohibiting solicitation of funds in an airport was constitutional. The decision turned on the determination of whether an airport operated by a government agency is a public forum.
Jamison v. Texas
In Jamison v. Texas, 318 U.S. 413 (1943), the Supreme Court overturned the conviction of a Jehovah's Witness who had violated a Dallas, Texas, ordinance prohibiting the distribution of handbills on the streets. The Court based its decision on the First and Fourteenth Amendment rights of freedom of the press and religion. This decision, although still a valid precedent, would not exempt the distribution of religious pamphlets from valid time, place, and manner restrictions.
Marsh v. Alabama
In Marsh v. Alabama, 326 U.S. 501 (1946), the Supreme Court held that a person distributing religious literature on the sidewalk of a "company town" was protected by the First Amendment rights of freedom of the press and religion and could not be arrested for trespass.
Mills v. Alabama
In November 1962, the Birmingham Post-Herald ran an editorial on election day castigating the city government and urging readers to vote for a city initiative to establish "mayor-council" government in Birmingham. The newspaper's editor, James E. Mills, was arrested and charged with violating Alabama's Corrupt Practices Act. On the merits, the Court held that the prohibition against election day editorials or other forms of "electioneering" violated the First Amendment. Although states have the power to regulate conduct in and around polling places to maintain order, the Alabama law unconstitutionally impinged on the free discussion of political affairs.
Texas v. Johnson
In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court struck down on First Amendment grounds a Texas flag desecration law. The 5-4 decision has served as the center point of a continuing debate regarding the value of free speech as exercised through the burning of the U.S. flag as a form of political protest.
United States v. Eichman
In United States v. Eichman, 496 U.S. 310 (1990), the U.S. Supreme Court struck down the Flag Protection Act of 1989 on First Amendment grounds, reaffirming its holding in Texas v. Johnson, which invalidated a Texas flag desecration statute.
United States v. O'Brien
In United States v. O'Brien, 391 U.S.467 (1968), the Supreme Court upheld a federal law prohibiting the knowing mutilation of draft cards, rejecting the First Amendment arguments of an anti-war protester. Of more lasting importance to First Amendment jurisprudence, the Court created the O'Brien test.
West Virginia v. Barnette (also in Chapter 3)
In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court invalidated a compulsory flag salute law in public schools and established that students possess some level of First Amendment rights.
Near v. Minnesota (landmark case)
In a Minneapolis newspaper called The Saturday Press, Jay Near and Howard Guilford accused local officials of being implicated with gangsters. Minnesota officials sought a permanent injunction against The Saturday Press on the grounds that it violated the Public Nuisance Law because it was malicious, scandalous, and defamatory. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined from further committing or maintaining the nuisance. the Court held that the statute authorizing the injunction was facially unconstitutional, meaning the decision was based on an analysis of the law's general applications, not the specific context of this case. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. The Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.
Bates v. State Bar of Arizona
In regulating the Arizona Bar, the Supreme Court of Arizona restricted advertising by attorneys. Bates was a partner in a law firm which sought to provide low-cost legal services to people of moderate income who did not qualify for public legal aid. Bates and his firm would only accept routine legal matters (many of which did not involve litigation) and depended on a large number of patrons given the low financial return from each client. In assessing their concept of legal services, Bates's firm decided that it would be necessary to advertise its availability and low fees. The Court found that the rule violated the First and Fourteenth Amendments. Justice Blackmun argued that commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in the American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services.
United States v. Grace
In this case, one protester distributed leaflets on the sidewalk outside the Court in Washington, D.C., and another had carried a First Amendment sign before being told that their actions violated a section of the U.S. Code prohibiting the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the vicinity. "[t]here is no doubt as a general matter peaceful picketing and leafleting are expressive activities involving 'speech' protected by the First Amendment." "public places" were generally connected to "public forums" and that the government could enact reasonable time, place, and manner restrictions so long as they "are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."
Cox v. New Hampshire
Jehovah's witnesses assembled to march on public streets and interfere with normal foot travel. Marchers arrested for violating a state statute that required a license to parade on public grounds. Result: The government cannot place regulations on content of speech but on the time, place, and manner on speech for public safety. = content neutral License required - 14th A.
Lewis v. City of New Orleans
Lewis used the word to admonish police who were attempting to arrest her son. Supreme Court vacated the convictions and questioned whether the speaker's choice of words threatened imminent violence. In this case, the words were directed towards the police, and "a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen".
voir dire
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.
Organization for a Better Austin v. Keefe
Keefe, a real estate agent, obtained a temporary injunction prohibiting the Organization for a Better Austin (OBA) from passing out literature criticizing Keefe's real estate activities in Austin, Illinois, arguing that the literature distributed by OBA in his neighborhood of Westchester, seven miles from Austin, invaded his right of privacy and was coercive rather than informative. By an 8-1 vote, the Court reversed the Illinois state court ruling, held that those seeking a prior restraint on expression carry "a heavy burden of showing justification for the imposition of such a restraint."
Cox Broadcasting v. Cohn (also in Chapter 5)
Martin Cohn was the father of a seventeen-year old girl who was raped and killed in Georgia. After obtaining information from the public record, a television station broadcast the name of Cohn's daughter in connection with the incident. This violated a Georgia privacy statute which prevented members of the media from publicizing the names or identities of rape victims. The Court held that the Georgia statute violated the Constitution. Justice White recognized the primacy of issues of privacy and press freedom, but he also identified compelling reasons why the press should not be restricted in this case. First, the news media is an important resource for citizens which allows them to scrutinize government proceedings. The commissions and adjudication of crimes are issues relevant to the public interest. Second, in the development of the privacy right, the Court has held that the interests of privacy "fade" in cases where controversial "information already appears on the public record."
Freedman v. Maryland
Maryland required that all films be submitted to a board of censors before being exhibited. The board could disapprove films that were obscene, debased or corrupted morals, or tended to incite crime. There was no time limit on the decision-making process. Ronald Freedman challenged the law as unconstitutional due to the procedures to obtain approval. The Court found the Maryland law to be invalid. The Court decision reflected a concern that the statute provides the danger of "unduly suppressing protected expression." The board was allowed overly broad licensing discretion with a lack of statutory provisions for judicial participation in the the procedure to prohibit a film. The Court established three guidelines as adequate safeguards to protect against the "undue inhibition of protected expression." (1) place the burden of proving the film is unprotected expression on the censors (2) require judicial determination to impose a valid determination (3) require prompt determination "within a specified time period."
Schneider v. State (also in Chapter 11)
Milwaukee, Wisconsin, Los Angeles, California, Worchester, Massachusetts, and Irvington, New Jersey—banned hand-to-hand distribution of pamphlets in public places and private residences. Defendants convicted of violating these ordinances in each city argued that the ordinances violated the Free Speech Clause of the First Amendment. The cities argued that the bans upheld their municipal prerogative to keep streets clean and reduce littering. The Supreme Court consolidated the four cases for review. A unanimous Court concluded the bans violated the First Amendment. The Court reasoned that the purpose of the ordinances to keep the streets clean and of good appearance was insufficient to justify prohibiting defendants from handing out literature to willing recipients. Municipalities may lawfully regulate the conduct of those using the streets, for the purpose of keeping them open and available for movement of people and property, so long as such legislation does not abridge the constitutional liberty of citizens to impart information through speech or the distribution of literature.
change of venue
Moving a lawsuit or criminal trial to another place for trial.
Branzburg v. Hayes
Newspaper reporter Paul Branzburg of Kentucky refused to answer questions before grand juries regarding stories that he had authored and published involving illegal drugs. Writing for the majority in the 5-4 decision, Justice Byron R. White clarified that this case did not involve the core values of the First Amendment. The reporters had not been required to reveal their sources nor had they been prevented from using any source of information, confidential or otherwise. Use of RELEVANCE TEST
limited purpose public forum
Places that are not automatically open for public use, such as the auditorium of a municipal building. When the government opens these places for expressive activity, public forum rules apply. (Rules that require equal treatment of communicators in scheduling and use of the facility, and limit prohibitions to those that are "narrowly drawn to effectuate a compelling state interest")
quintessential ("all purpose") public forum
Public parks, squares, streets, and sidewalks. Places "which by long tradition, have been devoted to assembly and debate" Supreme Court has been reluctant to expand this definition in recent years.
Wilson v. Central Intelligence Agency
Publishing company attempted to publish Wilson's memoir, the CIA rejected certain passages in the manuscript regarding when she worked for the CIA upon review. Wilson challenged this in court, arguing that information on the dates of her service had been "officially disclosed". Second Circuit court disagreed and ruled for the CIA: Because Wilson had signed a secrecy agreement, the CIA could legally prevent her from including classified info, and their concern was not limited to "the simple disclosure of a few dates".
44 Liquormart v. Rhode Island Liquor Stores Association
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 statute 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. Yes and no. Justice Stevens found Rhode Island's ban on liquor price advertising to be an unconstitutional infringement of the liquor sellers' freedom of speech. 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, much less alter alcohol consumption among abusive drinkers who are most in need of assistance. Finally, 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.
Preppy Murder case study
Robert Emmet Chambers Jr. was dubbed the Preppy Killer by the media after the August 26, 1986, New York City Central Park strangulation death of 18-year-old Jennifer Levin, for which he was originally charged with second degree murder. He claimed the death was accidental and the result of rough sex, and later pleaded guilty to manslaughter at the end of his trial.
United States v. Stevens
Robert Stevens was convicted under 18 U.S.C. Section 48 in a Pennsylvania federal district court for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." The U.S. Court of Appeals for the Third Circuit agreed with Mr. Stevens and reversed his conviction, holding unconstitutional 18 U.S.C. Section 48. The court reasoned that the dog fighting videos he sold were protected speech and that 18 U.S.C. Section 48 did not serve a compelling governmental interest. Yes. The Supreme Court held that 18 U.S.C. § 48 is substantially overbroad, and therefore invalid under the First Amendment. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that depictions of animal cruelty are not categorically unprotected by the First Amendment. The Court further reasoned that because a "substantial number" of § 48's applications are unconstitutional, the law is overbroad and, thus, invalid. Justice Samuel A. Alito dissented. He disagreed with the majority opinion arguing that § 48 was not intended to suppress speech, but rather to "prevent horrific acts of animal cruelty." He was concerned that the majority holding will practically legalize the sale of such videos and spur the resumption of their production.
R. A. V. v. St. Paul
Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."
Sheppard v. Maxwell
Sheppard was jailed for murdering his wife, but the ruling was overturned after the supreme court decided he did not have his right to a fair trial due to the immense publicity. Led to establishment of Restrictive Orders.
Snepp v. United States
Snepp published a book critical of the rapid American evacuation of Vietnam without submitting the manuscript to the CIA. Although the book contained no classified material, the agency brought suit for breach of contract. a. The Supreme Court rejected Snepp's argument that the CIA imposed unconstitutional prior restraint b. Snepp's publication might inadvertently reveal classified information and perhaps inhibit sources from confiding in the CIA if they thought the agency could not keep a secret.
non-public forum
State does not have to make all its property a public forum. As long as the regulation on speech is reasonable, the state may reserve the forum for its intended purposes.
Board of Trustees of the State University of New York v. Fox
Students brought the suit, contending that the state had violated their free speech rights by preventing them from conducting commercial product demonstration parties in dorm rooms. Court holds that government interest in regulating commercial activity to protect students is 'significant' Justice Antonin Scalia wrote for a six-person majority in Fox that the requirement for a reasonable fit between the state's ends and means was a more appropriate standard "in a field (commercial speech) 'traditionally subject to governmental regulation.'" Modified central hudson test and made it easier for govt. to restrict commercial speech.
Perry Education Association v. Perry Local Educators' Association
The Supreme Court decision in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), elaborated on the Court's use of the public forum doctrine to decide cases involving regulation of the time, place, and manner of communication. The Court had developed the more formal set of regulations to define the First Amendment right to free speech protections granted to speakers on government-owned property.
O'Brien Test
Test for determining whether expressive conduct or symbolic speech merits First Amendment protection. See p. 309 of textbook.
relevance test/ alternative means test/ compelling interest test
Tests to determine if a journalist should be compelled to testify or divulge sources. 1. The relevance test: The government must show that there is probable cause to believe that the newsman has info which is clearly relevant to a specific probable violation of law. 2. The alternative means test: The government must demonstrate that the info sought cannot be obtained by alternative means less destructive of First Amendment rights. 3. The compelling interest test: The government must demonstrate a compelling and overriding interest in the information.
Lorillard Tobacco v. Reilly
The Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. Members of the tobacco industry filed suit challenging the regulations. Claimed the regulations were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), which prescribes mandatory health warnings for cigarette packaging and advertising and that the regulations violated the First and Fourteenth Amendments. The Court held that the FCLAA preempts Massachusetts' regulations governing outdoor and point-of-sale cigarette advertising and that Massachusetts' outdoor and point-of-sale advertising regulations related to smokeless tobacco and cigars violate the First Amendment, but that the sales practices regulations related to all three tobacco products are constitutional.
Greater New Orleans Broadcasting Association v. United States
The Greater New Orleans Broadcasting Association (Association) wanted to run advertisements for lawful private casino gambling in Louisiana and Mississippi. The Association challenged the government's prohibition against such radio-and television-based advertising. After suffering defeat in both trial and appellate courts, the Association appealed and the Supreme Court granted them certiorari. In a unanimous decision, the Court found the advertising restrictions unconstitutional insofar as they applied to Louisiana-based advertisers - where the gambling activities being promoted are legal. The government failed to demonstrate that its restriction would alleviate harmful gambling practices to any material degree. Instead, the Court noted, the regulations in question provided only ineffective and remote support for the government's concerns, since all sorts of other gambling activities would continue unaffected. Thus, the government restrictions unfairly singled out a specific form of speech for regulation while leaving others untouched.
Burstyn v. Wilson (also in Chapter 5)
The New York Board of Regents rescinded the license to show The Miracle, finding it "sacrilegious." Joseph Burstyn, the film's distributor, challenged the ruling. The New York Appellate Division upheld the decision, and the New York Court of Appeals affirmed. The Supreme Court unanimously reversed. Court stated prior restraint permissible only in exceptional circumstances and asserted that government bore a heavy burden in demonstrating the need for it, and NY had not met that burden.
Central Hudson Gas and Electric v. Public Service Commission
The Public Service Commission of New York (PSC), in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use. The PSC's regulation distinguished promotional advertising from informational advertising, which was permitted. Central Hudson Gas and Electric challenged the regulation in a New York State Supreme Court, which upheld the regulation. The Appellate Division of the New York State Supreme Court affirmed the decision, as did the New York Court of Appeals. Yes. In an 8-1 opinion, the Court overruled the Court of Appeals of New York and held that the New York's ban violated the right to commercial speech. Writing for the majority, Justice Lewis F. Powell cited the protections for "commercial speech from unwarranted governmental regulation" set forth in Virginia Pharmacy Board v. Virginia Citizens Consumer Council. The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising regardless of its effect on electricity use, it violated the First and Fourteenth Amendment under First National Bank of Boston v. Bellotti. Justices William J. Brennan, Jr., Harry A. Blackmun, and John Paul Stevens each wrote opinions concurring in part and in the judgment.
Lloyd v. Tanner
The Supreme Court's decision in Lloyd Corporation, Ltd. v. Tanner, 407 U.S. 551 (1972), which emerged from the divisive debates that surrounded the Vietnam War, specified the limits to free speech on private property. Rule that private property can limit free speech.
Estes v. Texas
The case arose from the trial of Billie Sol Estes for swindling. Although live coverage was limited during the trial itself, the opening days of the preliminary hearing had developed into a circus atmosphere as dozens of cameramen staked out the courtroom. Court indicated that this disruption had been enough to deny due process to Estes. Acknowledging the important role that the press could play in "informing the citizenry of public events and occurrences, including court proceedings," Clark thought that the media at the preliminary hearing had created enough distraction to both the judge and the jury as to interfere with the chief judicial task of ascertaining the truth.
Deep Throat (confidential source)
The confidential informant who provided crucial details in the Washington Post investigation of watergate. Revealed to be W. Mark Felt after 30 years.
jury instructions/admonition
The term 'admonition to jury' refers to formal verbal statement made during a trial by a judge to advise and caution the jury on their duty as jurors. A judge may admonish the jury on: 1. What they must do and how they must behave. 2. The admissibility or non admissibility of evidence. 3. What evidence they can use to make their decision. 4. How they can use that evidence to make a decision.
Thomas v. Chicago Park District
Thomas v. Chicago Park District, 534 U.S.316 (2002), upheld a Chicago ordinance requiring individuals holding events in a public park involving more than 50 persons to obtain a permit, finding that the ordinance contained sufficient procedural safeguards to satisfy First Amendment scrutiny.
two-tier theory
Tier 1: Worthwhile Speech - expression that has social value as a step to truth Tier 2: Worthless Speech - Speech that is: A. Lewd, obscene, and profane B. Slander and Libel C. Insulting or 'Fighting Words' (offensive language, or language that tends to incite violence)
Linmark Associates v. Town of Willingboro
Township of Willingboro prohibited the posting of home sale signs because it alleges that the number of houses being sold in the neighborhood was causing the white citizens to leave. The Respondent claims a goal of promoting a stable, racially integrated neighborhood. Court rules No. The restriction bans the free flow of information between buyer and seller.
Chandler v. Florida
Two Miami Beach police officers were charged with burglarizing a local restaurant. Their trial gained much media attention. Local television stations televised a small portion of the trial, thanks to a recent Florida Supreme Court decision which permitted (with certain restrictions) electronic media to record judicial proceedings. Officers Chandler and Granger objected to the coverage and were found guilty as charged. The Court found no constitutional violation in this case. Chief Justice Burger first denied Chandler's and Granger's claim that the Court's holding in Estes v. Texas (1964) regarded television cameras in the courtroom as offensive to due process. State experimentation with "evolving technology" in the courtroom, as long as it does not infringe on "fundamental guarantees" of the accused, is consistent with the Constitution. Furthermore, Florida's policy was implemented with strict guidelines intended to protect the right of a defendant to a fair trial. For example, the state required its courts to protect certain witnesses from the "glare of publicity" and to hear and consider arguments from a defendant who feels that electronic coverage may bias the jury.
Gannett v. DePasquale
Two suspects charged with murder, robbery, and grand larceny requested that the public be excluded from a pre-trial hearing concerning the admissibility of evidence. They argued that an "unabated buildup" of adverse publicity had jeopardized their ability to receive a fair trial. The Court held that members of the public had no right to attend criminal trials under the Sixth and Fourteenth Amendments. The Court noted that judges had "an affirmative constitutional duty" to minimize the effects of prejudicial pretrial publicity, and that closure of pretrial proceedings was an effective method to do so. The Court found that the Sixth Amendment, while granting defendants the right to a public trial, did not imply a public right of access to trials. Since suppression of the transcript was temporary, no first amendment violation occurred.
Valentine v. Chrestensen
U.S. Supreme Court said advertising received NO First Amendment protection. Owner of a submarine tourist attraction in New York was prohibited from distributing advertising handbills on street. He could distribute only handbills "devoted solely to "information or a public protest." So he revised leaflet to remove admission fee and other side protested city dock refusal to let sub dock. U.S. Supreme Court believed his claim for First Amendment protection was merely a ploy to avoid a lawful regulation of New York City.
epithets
abusive words or phrases
Federal Trade Commission
a federal agency established in 1914 to investigate and stop unfair business practices
gag order/protective order
a judge's order that a case may not be discussed in public.
deceptive advertising
a representation, omission, act, or practice in an advertisement that is likely to mislead consumers acting reasonably under the circumstances
continuance
an adjournment of a scheduled case until a later date
Lovell v. Griffin
arrested for distributing pamphlets in violation of city ordinances; violation of 1st amendment - pamphlets under first amendment protection, protects distribution of written materials
United States v. Marchetti
case deals with pre-publication review; manuscript written about CIA's covert actions to destabilize governments unfriendly toward US- CIA got injunction to enjoin publication and the 4th circuit upheld saying CIA could delete only classified information
prejudicial publicity
dissemination by the media of either factual information that bears on the guilt of a defendant or emotional information without evidentiary relevance that simply arouses emotions against a defendant
prior restraint
government censorship of information before it is published or broadcast
speech codes
historically transmitted, socially constructed, system of terms and meanings, premises and rules, pertaining to communicative conduct
"heavy presumption"
referring to prior restraint, the idea of a 'heavy presumption' holds that there must be an extremely valid reason to justify prior restraint.
time, place, and manner restrictions
regulations regarding when, where, or how expression may occur; must be content neutral
speech plus
speech accompanied by conduct such as sit-ins, picketing, and demonstrations; protection of this form of speech under the First Amendment is conditional, and restrictions imposed by state or local authorities are acceptable if properly balanced by considerations of public order
sequestration
the action of taking legal possession of assets until a debt has been paid or other claims have been met.
categorical approach
the method for determining whether an offense (generally a prior conviction) fits within a given definition, such as for "crime of violence" "drug trafficking offense" "violent felony" or other similar terms.
fighting words
words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence
