Mass Communication Law

What is an Absolutist opinion on First Amendment?

"Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. . . . The government's power to censor the press was abolished so that the press would remain forever free to censure the Government."

Law of Equity?

"Judge Made" law. Ensures fairness and Equity. Issues writs and court orders. (Restraining order)(Preliminary injunction)

John Milton and the marketpace of ideas theory?

"ultimate good is desired by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market.

Common Law

-started in Great Britain -based on common customs of the people

5 sources of Law:

1. Common Law 2. Law of Equity 3. Statutory Law 4. Constitutional Law 5. Administrative Law/Executive Actions

Hierarchy of Speech:

1. Political and Social Speech- most valued most protected form of speech, strict scrutiny, core speech, promotes free exchange of ideas, criticizes gov't 2. Commercial and Sexual Speech- less protected, advertising, indecency, gets protection but not as much 3. Fighting Words, Threats, Obsenity and False Ads- NO PROTECTION, has no merit or redeeming value, iminent lawless action

How many US court of appeals are there?

13 total, and TN is in the 6th circuit

What did the incorporation of the 14th amendment state?

14th Amendment added to US Constitution (1868) to protect the rights newly freed slaves from states. due process clause: no state shall "deprive any person of life, liberty, or property, without due process of law."

How do you amend the constitution?

3/4 state legislatures have to ratify amendment that is proposed. There are 27 amendments total

majority opinion?

5 of 9 justices agree on a matter. The 5 justices have the majority vote.

How many US district courts are there?

94 total

What happened in Gitlow vs New York? (1925)

A New York criminal anarchy law used to punish socialist Benjamin Gitlow for printing the "Left Wing Manifesto." Of course, the First Amendment didn't protect Gitlow from the laws of the state and the action of the state court, until the appeal of Gitlow's conviction to the Supreme Court of the United States. This is one of the landmark cases, in which the Court sets a new precedent. First Amendment rights protected from abridgment by Congress are "among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states."

Writ of certiorari?

A decision by the Supreme Court to hear an appeal by a lower court.

What is a limited public forum?

A limited public forum is state property set aside for expressive use, and can be subject to reasonable time, place and manner regulations, and to only those content-based regulations that are narrowly crafted to serve a compelling state interest.

What is a traditional public forum?

A place such as a park in which the government has only limited power to regulate expression; only can impose restrictions that are narrowly drawn and serve a compelling government interest; and impose time, place and manner restrictions narrowly tailored to serve a significant government interest.

What happened in Hotsy vs. Carter?

Administrators at Governors State University in Illinois demanded prior review and approval of the student newspaper before publication after articles criticizing school officials were published. The case centered around whether the legitimate pedagogical concerns standard of Hazelwood could be applied to college newspapers. The 7th Circuit Court of Appeals ruled that "speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level." A paper done as an extracurricular activity and not part of a class is likely to be a public forum in which students enjoy more protection.

What happened in JB Pictures vs Defense Department?

American Civil Liberties Union sued for access to information regarding prisoners detained by the U S Military. Federal district court ordered the DOD to release photographs of mistreated detainees at the Abu Ghraib prison.

What is an injunction?

An authoritative warning or order.

What happened in Frederick vs. Morse?

As the Olympic torch relay passed outside of his school in Juneau, Alaska, Joseph Frederick unfurled a sign that read "Bong Hits 4 Jesus". The principle of the school felt the banner had a pro-drug message, made him take it down, and suspended Frederick for 10 days. The 9th Circuit applied the Tinker standard noting there was no substantial and material disruption of educational activities when the banner was unfurled. The US Supreme Court overruled the lower court and found that Frederick's First Amendment rights were not violated and that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."

The Nine Supreme Court Justices:

Chief Justice: John Roberts Antonin Scalia Anthony Kennedy Clarence Thomas Ruth Bader Ginsburg Steven Breyer Samuel Alito Sonia Sotomayor Elena Kagan

What is the First Amendment?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

What is the Espionage Act of 1917?

Espionage Act made it a crime to promote disloyalty in the armed forces, obstruct recruitment of soldiers or make false statements interfering with military operations.

John Adams vs. Thomas Jefferson

Federalist vs. Anti Federalist

Bill of Rights?

First 10 amendments in the Constitution

What is the Smith Act?

First peacetime sedition act since 1798. Punished speech that attempted to create disloyalty among members of the military or advocated overthrowing the government. Up to $20,000 fine and up to 20 years in jail. Used to imprison Communist Party members.

What is authoritarian press system?

Furnished exclusive basis for determining the function and relationship of popular press to society.

Judicial Restraint?

Greater willingness to accept lower court decisions, or leave decisions to other branches of government.

What is a time, place and manner restriction on expression?

Has to do with govt giving orderly rules on how and when speech can be given in public forums. Can't limit content, just manner. Private entities can limit both content and manner. Restriction must be content neutral. Restriction must not be a complete ban on the expression. Restriction must be justified by a substantial government interest. Restriction must be narrowly tailored so that it furthers the state interest that justifies it, but does not restrain more expression than is actually required to further this interest. Restriction must meet all four to be constitutional.

What happened in Hazelwood School District vs Kulmeier?

High School Student First Amendment rights not violated as school-sponsored paper was not a public forum and censorship was permitted for "legitimate pedagogical concerns" when immature audiences were targeted by the content. The U.S. Supreme Court ruled it was acceptable to censor a high school newspaper produced as part of a journalism class if material fell into one or more of five categories. Five categories of acceptable censorship under Hazelwood: 1) Publications or stories that materially and substantially interfere with the requirements of appropriate discipline 2) Material that interferes with the rights of students 3) Material that fails to meet standards of academic propriety 4) Material that generates health and welfare concerns 5) Matters that are obscene, indecent or vulgar

Who is John Peter Zenger?

In 1732 he was arrested for criticizing the NY colonial Governor William Cosby in the New York Weekly Journal.

What happened in U.S vs Bell?

In 2005 a federal appellate court for the 3rd Circuit upheld a permanent injunction barring Thurston Paul Bell from promoting and selling unlawful tax advice: how to avoid paying taxes using bogus tax shelters. The appeals court said that the First Amendment protection against prior restraint "does not apply to restrictions on unprotected speech, including false or unlawful commercial speech."

What happened in Bradenburg vs Ohio 1969?

In Brandenburg v Ohio (1969), the Court required a direct incitement of violence as grounds to punish speech.

What happened in Dennis vs. US 1951?

In Dennis v. U.S. (1951) Supreme Court of U.S. upheld convictions of 11 Communist Party members Their political doctrine advocating the violent overthrow of government was held to be a clear and probable danger.

What happened in Flynt vs Rumsfield?

In Flynt v. Rumsfield, no right of access to U.S. ground troops, U.S. District court says. Appeals court rules media have no constitutionally based right of access to military action in combat.

What happened in Scenck vs US? (1919)

In Schenck the Supreme Court of the United States upheld convictions of anti-draft pamphleteers. In his opinion Justice Oliver Wendell Holmes wrote that their actions constituted a "clear and present danger."

What is Yates vs US (1957)?

In Yates v U.S. (1957) Supreme Court of U.S. distinguished between abstract advocacy of overthrow versus advocacy of direct action to overthrow the government.

What happened in Dean vs. Utica Community Schools? (2004)

In a high school newspaper case, a district court judge found that an accurate, student-authored article about a lawsuit alleging that school buses were causing injury and illness to local residents could not be censored under the Hazelwood "legitimate pedagogical concerns" standard. The federal district court found the censorship to be unconstitutional viewpoint-based discrimination.

What is hate speech?

In law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group.

Media during World War I and II?

In wars before Vietnam, the American media cooperated with the government's goals and objectives in their reporting of the war. Censorship played a role in every war that the United States has fought up to Vietnam War.

What does Incorporation of the 1st Amendment mean?

Incorporation is process through which the First Amendment came to apply to state and local government. First Amendment explicitly refers to the U.S. Congress: "Congress shall make no law . . . ."

What happened in Near vs. Minnesota 1931?

Jay M. Near and Howard Guilford published the Saturday Press. County attorney Floyd Olson tried to stop them. Minnesota law allowed the district court to shut down as a nuisance publications that were "malicious, scandalous and defamatory." Supreme Court reversed the lower court decision: Chief Justice Charles Hughes wrote the opinion of the court. He said the intent of the statute was not punishment for libelous publication but the suppression of offending newspapers or periodicals.

What happened in Kincaid vs. Gibson? (2001)

Kentucky State University administrator confiscated and refused to distribute a student yearbook because she disagreed with student editors for choice of purple for the yearbook cover, political themes and photo style. Federal Court of Appeals finds that the confiscation of the yearbook titled Thorobred violated student free speech rights. The Court of Appeals meeting en banc finds that the KSU yearbook was limited public forum - state cannot deny access to speakers without a compelling state interest.

What was Licensing?

King Henry the 8th set licensing law that said that no printing would be done until someone got a license from the government.

What is Administrative Law?

Law made by federal regulatory agencies set up by Congress to deal with complex technical issues. Executive actions, "taking care that the laws are faithfully executed."

Statutory Law?

Laws created by legislative bodies. Deals with larger groups and anticipates problems. Includes all criminal law and is found in statute books.

What is ad hoc balancing?

Meaning of freedom of expression is solely based on a case by case basis.

Rule of 4?

Meaning that 4 of the 9 justices must accept and agree upon taking the writ of certiorari.

Pentagon Papers Case (1971):

New York Times Co. v. United States U.S. government sought a court order restraining the New York Times and the Washington Post from publishing a classified, 47-volume government study titled "History of U.S. Decision-Making Process on Viet Nam Policy." Per curiam opinion. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity'. . . .The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint."

What happened in Pitt News vs Pappert?

Pennsylvania adopted a law that banned advertisements containing references to "the availability and/or price of alcoholic beverages" in university newspapers. The 3rd Circuit Court of Appeals ruled the law unconstitutional because it targeted a narrow segment of the media, only college and university newspapers, and therefore unlikely to do any good in reducing the consumption of alcohol.

What happened in U.S vs Progressive?

Progressive magazine freelance writer Howard Morland article describing the operation of the hydrogen bomb "The H-Bomb Secret -- How We Got It, Why We're Telling It" Article contained information banned by Atomic Energy Act. U.S. District Judge Robert W. Warren The Supreme Court recognized in Near v. Minnesota "an extremely narrow area, involving national security, in which interference with First Amendment rights might be tolerated and a prior restraint on publication might be appropriate." The government had statutory authority under Atomic Energy Act to ban the publication of nuclear secrets. In weighing the confrontation between the First Amendment right to freedom of the press and national security Warren had to give preference to national security because a more fundamental right in the hierarchy of constitutional values was at stake, the right to live.

What is Due Process of Law?

Reasonable expectation of what the law is.

Media during Iraq War?

Reporters embedded with combat units in Iraq. No copy review/censorship of media products from the field.

What is the Sedition Act?

Sedition Act made it a crime to write or publish any disloyal, profane, scurrilous or abuse language about the form of government of the United States or the Constitution, military or naval forces, flag or uniform.

United States Constitution is?

Supreme Source of law in the U.S.

Media during the Persian Gulf War?

System of pool coverage and copy review. Public affairs officers accompany journalists at all time. Delays of copy/photo approval. Post-war analysis shows much information about the war was inaccurate.

Taxation/Stamp Act?

Taxes on the press to atempt to raise revenues and cause censorship. Tax on knowledge. 1765 Stamp Act levied on colonial papers. Colonials printers refused to pay and it was repealed after one year.

What happened in Chaplinsky vs New Hampshire 1942?

The U.S. Supreme Court created the "fighting words doctrine." Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Fighting words may be prohibited if: There is a face-to-face encounter. The encounter could result in an immediate breach of the peace.

What did Fred Siebert say on the up and down range of free expression?

The area of freedom of the press contracts and the enforcement of restraints increases as the stresses on the stability of the government and of the structure of society increase. In times of national crisis, limits on press freedom increase.

What does Thomas Emerson think the First Amendment values serves?

Thomas Emerson's System of Freedom of Expression (1970) 1. Individual self-fulfillment 2. Discover the truth 3. Participate in democracy 4. Maintain a stable community/change without chaos

Constitutional Law?

US Constitution is supreme source in the land. Includes Bill of Rights and 27 Amendments.

What happened in Bethel School District vs. Fraser?

US Supreme Court found that officials at Bethel High School did not violate the free speech rights of Matthew Fraser when they suspended him for making a sexually suggestive nomination speech for a fellow classmate The court refused to apply the political speech standard in Tinker, ruling that society has an interest "in teaching students the boundaries of socially appropriate behavior."

What happened in Tinker vs. Des Moines Independent School District?

US Supreme Court held that First Amendment rights of students "do not stop at the schoolhouse gate." Students had a right to wear a black armband to peacefully protest the Vietnam War. Students can engage in peaceful protest 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."

What is Watch dog function of the press?

Watchdog role refers to the accepted responsibility of the media to protect the public from deceitful, careless, incompetent and corrupt officials by standing ready to expose any official who violates accepted legal, ethical or performance standards. It can lead to the successful resignation of power holders. A watchdog role can be that of a protector or guardian.

Media during Vietnam War?

Wide open news coverage The alliance of government and media in time of war broke down in Vietnam. Defense Department launches public relations efforts to recover public support of war. Adversarial relationship between military and media Vietnam-era military officers blame the news media for undermining public support for war and the ultimate defeat in Vietnam.

What is a non-public forum?

government can control the speaker and subject matter as long as what the government does is reasonable and content neutral.

Libertarian Press System?

in the case of no government at all.

Dissenting Opinion?

opinion written by one or more judges that disagrees with the majority opinion.

What is a precedent? (accepting, modifying, distinguishing, and overruling)

previous case that deals with the same questions as the current one.

Prior Restraint vs Subsequent Punishment:

republication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment of a perpetrator after the material has been published. Could be taxes, licenses, pre-approval, fees, etc.

What is the Alien and Sedition Acts of 1798?

seditious libel laws passed to silence criticism by other parties. These laws are written that you can not write or speak "false, scandalous, and malicious" things about the government.

Federal Communications Commission

set of rules for broadcasters, deals with money and stocks.

What is the definition of Law?

set of rules that attempt to guide human conduct and a set of formal governmental sanctions that are applied when those rules are violated.

per curium opinion?

short and brief opinion that nobody signs..

Plurality opinion?

the majority of the court did not reach one single opinion.

What is stare decisis?

to stand by that which is decided. "Let the decision stand."

What is seditious libel?

written criticism or ridicule of government, its form, constitution, officers, law, conduct, or policies.