Media Law & Ethics
How are content based laws different than content neutral laws?
Content-based laws are laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech. Regulate what's actually being said. Strict scrutiny test. Content-neutral laws are laws that incidentally and unintentionally affect speech as they advance other important government interests. Intermediate scrutiny. The Supreme Court applies intermediate scrutiny to such laws and finds them constitutional if they restrict speech as little as necessary to advance an important government interest unrelated to speech. Content neutral laws are also called time/place/manner laws
What are the different theories of the purpose behind the First Amendment? Know each theory along with its proponent
Marketplace of Ideas (Attainment of Truth) - Milton & Mill (allow people to have freedom to express themselves in the "marketplace," and people can decide what they "buy" into; the truth will prevail) Self-Governance - Meiklejohn Fourth Estate - Blasi Safety Valve (Change with Stability) - Emerson (ability to express themselves freely helps people from acting out anti-socially) Self-Fulfillment - Tribe (allows us to grow and be happy when we are able to express ourselves)
Hosty v. Carter
Needs to be approved by admin. stands for the principle that the framework identified by the Supreme Court in a high school press censorship case also applies at the college and university level. The Seventh Circuit Court of Appeals decided that censorship of subsidized student newspapers at colleges as well as elementary and secondary schools does not violate students' First Amendment rights. in Hosty v. Carter (7th Cir. 2005), the 7th U.S. Circuit Court of Appeals ruled that college officials did not violate the First Amendment and applied reasoning from the high school Hazelwood decision. 14. - court of appeals held that Hazelwood case applies to colleges and universities.
What is the jurisdiction of federal district courts? What types of claims can a federal district court here?
Original. Cases arising under the Constitution and laws of the U.S. (federal question) 2. Cases affecting Ambassadors. Other public Ministers and Consuls. 3. Cases of Admiralty and maritime jurisdiction. (law of the sea) 4. Controversies to which the United States shall be a party. 5. Controversies between two or more states. 6. Controversies between a state and citizens of another state. 7. Controversies between citizens of different states. 8. Controversies between "citizens of the same state claiming lands under the grants of different states." 9. Controversies between a state or the citizens thereof and foreign states, citizens or subjects.
What is the process by which a case is heard by the U.S. Supreme Court?
"Petitioners may ask the Supreme Court for a writ of certiorari. Rule of four means Petitioner must get at least 4 justices to hear case. "Denial of certiorari generally means that the justices do not think the issue is sufficiently important or timely to decide, & lower court decision stands. if accepted, attorneys file briefs arguing their position. -they review them and listen to oral arguments. -justices then meet in conference room to decide. "The chief justice or the most senior justice in the majority determines who will draft the majority opinion (draft opinion) which is the decision.
New York Times v. US
"The Nixon administration asked for a court injunction to stop the publication about the so-called Pentagon Papers report on the status of the war" "the Supreme Court said the injunction violated the Constitution because the government had not shown that the ban was essential to prevent a real and immediate risk of harm to a compelling government interest"
What is a non-content based regulation?
Regulate speech without regard to its subject matter or viewpoint conveyed. Time (certain content is not allowed on TV after certain times), place (certain spaces can't have strip clubs, manner (can't give out pamphlets to advertise because littering, but you can use a speaker) restrictions. Control symbolic, nonverbal expression (various forms of protest - burning draft cards, marching, picketing, etc. Restriction will be upheld so long as: It is not based on the speaker's content It serves as a substantial governmental interest It is narrowly written and leaves open alternative channels of communication
What devices help to mitigate damages in a libel suit?
Retraction - once you become aware that a statement is libelous, its best to retract it, correction/clarification - - doesn't matter where you put it. How you frame it is important, reliance on a usually reliable source
How can a media defendant mitigate the damage for a libel award?
Retraction, clarification/correction, reliance on a usually reliable source
How does the First Amendment apply to adults?
Speak and Publish - not all types of symbolic speech are allowed ( you can burn the flag, but you can't burn a draft card). Pure speech (always allowed) Associate - join clubs & organizations Receive info - exchange of ideas Solicit funds - People with pamphlets on the side of the road have a right to do that. No compelled speech - you can't be forced to say things you don't want to say.
What is discriminatory taxation? Are news media protected from it?
A tax on particular companies or products, for example, products from foreign countries, that is intended to make it easier for other companies to compete. Yes, news media is protected from it.
What is libel?
A written defamation. A publication that tends to damage a person's or corporation's reputation or expose them to public hatred, contempt, or ridicule, or to injure individuals in their business or profession.
Which tests do courts apply in First Amendment cases?
Absolutism -interprets the law LITERALLY. Bad Tendency - speech might lead to some problem. There's a slight bad tendency for something evil to happen. Clear & present danger - Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm." Schenck v. U.S., Brandenburg v. Ohio True Threats - Speech directed toward an individual or historically identified group with the intent of causing fear of harm." Watts v. U.S. - Watts remains an important decision for First Amendment jurisprudence because it stands for the principle that true threats are not protected expression. The Court also explained that political hyperbole does not qualify as such a threat. Black v Virginia - "In 2003, the U.S. Supreme Court decision in Virginia v. Black held that punishment of true threats is acceptable under the Constitution given both speaker intent and a reasonable person's objective response. the Court ruled that the First Amendment allows states to punish individuals who set crosses ablaze with the intent to intimidate. For speech to become a punishable threat, a speaker must (1) direct the threat toward one or more individuals (2) with the intent of causing the listener(s) (3) to fear bodily harm or death."
How does the First Amendment apply differently in high schools? In colleges?
The first amendment protects expression by high school students as along as it's not disruptive, obscene, or violative of the rights of other students. HS students have no First Amendment right to deliver "offensive" sexually oriented expression at a school-sponsored event. Tinker v. Des Moines - supreme court upheld the right of students to wear black arm bands. Students are allowed to speak as long as its not disruptive. Hazelwood v. Kuhlmeier - the Supreme Court again reversed and said school administrators, not student reporters and editors, have authority to determine the appropriate content of a school-sponsored student newspaper. Colleges have more rights and cannot be banned. Kincaid v. Gibson - the yearbook was a limited public forum for First Amendment Purposes; (2) university officials did not impose reasonable time, place, and manner restrictions by confiscating all copies of the yearbook; (3) Hazelwood did not apply; and (4) school officials violated the First Amendment by confiscating copies of the yearbook, even if the yearbook was not considered a public forum. Hazelwood does not apply. Needs to be approved by admin (Hosty v. Carter)
What are the qualifications and terms for a federal judge?
They are appointed by the President with advice and consent from the Senate; serve a life tenure; no reduction in salary; serve until impeachment, retirement or death
What is "vagueness" and "overbreadth"?
Vagueness: A law that is too difficult to clearly discern what activity is limited Overbreadth: Limits more activity than necessary to address the compelling government interest it's aimed at protecting. · A law is so broad that protected speech and unprotected speech falls under this term.
Black v. Virginia
Virginia's statute against cross burning is unconstitutional because it places the burden of proof on the defendant to demonstrate that he or she did not intend the cross burning as intimidation. For speech to become a punishable threat, a speaker must (1) direct the threat toward one or more individuals (2) with the intent of causing the listener(s) (3) to fear bodily harm or death." True Threats
Brandenburg v. Ohio
advocate but not to incite, or provoke, immediate violence. If you advocate, government can punish the advocacy of violence only by showing that the advocacy was (1) intended to and (2) likely to incite imminent (3) lawless action. Clear & present danger.
Gitlow v. New York
an important Supreme Court case in which the Court ruled that the Fourteenth Amendment to the U.S. Constitution extended the reach of certain provisions of the First Amendment, specifically the provisions protecting freedom of speech and freedom of the press, to the governments of the individual states.
What is a journalists' privilege and how does it relate to libel?
fair report privilege (Qualified Privilege) who report events on the basis of official records. The report must fairly and accurately reflect the content of the records; this is the condition that sometimes leads to this privilege being called conditional privilege-when journalists rely on official gov. records or proceedings, the privilege applies. Conditions: accuracy, fairness, attribution, common law malice -if a contributor to an official proceeding makes a statement that is false and defamatory, a news organization whose report is based on exclusivity on the statement will not be liable for defamation as long as the story accurately and fairly reflects the content of the report or proceeding.
Marbury v. Madison
the Supreme Court established the judicial courts power to interpret laws. that is, the power to strike down laws the Court finds to be in conflict with the Constitution. They make sure the other branches actions are not unconstitutional.
Know the hierarchy of First Amendment values
1. Political and social expression 2. Commercial and non-obscene sexual expression 3. Obscenity, false advertising and fighting words
Explain how each pleading and motion works in the Civil court process
Affidavit - certain facts are true to the best of that person's knowledge. Default judgment - a ruling granted by a judge or court in favor of a plaintiff in the event that the defendant in a legal case fails to respond Motion to dismiss - A request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way. Discovery - gathering evidence and facts. Interrogatories - a written question which is formally put to one party in a case by another party and which must be answered. Subpeona - A command for someone to appear or testify in court or to turn over evidence. Summary judgement - The resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgment." Motion for Directed Verdict - This motion is made before a case is submitted to the jury, and argues that no reasonable jury could find for the opposing party. Motion for JNOV (non obstante veredicto): JNOV (A judgment notwithstanding the verdict) - a judgment by the trial judge after a jury has issued a verdict, setting aside the jury's verdict and entering a judgment in favor of the losing party without a new trial. Motion for a new trial - A party's posttrial request that the court vacates the judgment and orders a new trial to re-examine some or all of the matters from the concluded trial
Does military security review of news media work violate the First Amendment?
No
Can an editorial be libelous?
Yes
Miami Herald Publishing Company v. Tornillo
the First Amendment protected the autonomy of the printed press and barred government from requiring newspapers to provide free reply space to political candidates attacked in the paper" declared Florida's right-of-reply statute unconstitutional because newspaper's content should be determined by its editor and not the government.
Hazelwood v. Kuhlmeier
the Supreme Court again reversed and said school administrators, not student reporters and editors, have authority to determine the appropriate content of a school-sponsored student newspaper. When a school creates and supervises a forum for student speech, such as a student assembly or a teacher-supervised student newspaper, the school endorses that speech and is not only permitted but required to control the content to achieve educational goals"
Kincaid v. Gibson
the yearbook was a limited public forum for First Amendment Purposes; (2) university officials did not impose reasonable time, place, and manner restrictions by confiscating all copies of the yearbook; (3) Hazelwood did not apply; and (4) school officials violated the First Amendment by confiscating copies of the yearbook, even if the yearbook was not considered a public forum.
What are injunctions? How are they used in prior restraint cases?
A court order prohibiting a person or organization from doing some specified act. Injunctions only happen in prior restraint if the government can show they are necessary to prevent serious harm to extremely important government interests. NY Times v. U.S - 9 different opinions.
Milkovich v. Lorain Journal Co.
"The case involved a high school wrestling team that brawled with a competing team during a match" "After a hearing, the coach of one team was censured, and his team was placed on probation. A lawsuit was filed in an attempt to prevent the team probation" "At a hearing, the coach, Michael Milkovich, denied that he had incited the brawl. In the next day's newspaper, a local sports columnist wrote that Milkovich, along with a school superintendent, misrepresented the truth in an effort to keep the team off probation" Coach sued for libel. "The Supreme Court said the key question in this case was whether a reasonable reader could conclude that the statements in the column implied that Milkovich had lied in the judicial proceeding. The Court believed that such an implication had been made and ruled for Milkovich." Court said it was not opinion "Since the Milkovich decision (excerpted at the end of the chapter), courts have provided First Amendment protection to two broad categories of opinion: (1) statements that are not provably false and (2) statements that "cannot reasonably [be] interpreted as stating actual facts.
What is the difference between an all-purpose public figure and a limited purpose public figure?
"all-purpose public figure: In libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. All-purpose public figure libel plaintiffs are required to prove actual malice." Celebrities. Widely recognizable. "limited-purpose public figure: In libel law, a plaintiff who has attained public figure status within a narrow set of circumstances by thrusting him- or herself to the forefront of particular public controversies in order to influence the resolution of the issues involved; this kind of public figure is more common than the all-purpose public figure." "Whether a plaintiff is considered an all-purpose or limited-purpose public figure in a libel suit can depend on the nature of the material being published—specifically whether it relates to a matter of public concern."
Dun & Bradstreet v. Greenmoss
"in its 5-4 decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., the Supreme Court explored the question of whether strict liability could apply in private defamation claims involving non-media defendants" press negligently wrote a story that Greenmoss when bankrupt. This was a private company involved in a private matter. But it has some serious repercussions. Thye had to prove negligence (private company/private issue). However, if it is a private company involved in a public matter, they would have to prove actual malice to recover punitive damages. "As noted in Chapter 1, under a strict liability standard, the plaintiff does not need to demonstrate fault on the part of the defendant in order to win the suit. The Court held that if a defendant's statement did not involve a matter of public concern, then presumed punitive damages could be awarded without a showing of actual malice"
What is group libel?
"libel law allows any member of a group to sue when the entire group has been libeled. "key is whether in libeling the group, the information is also "of and concerning" the specific individual bringing the lawsuit. In general, the smaller the group, the more likely it is that its individual members have been identified. ""the cases in which recovery [of damages] has been allowed usually have involved numbers of 25 or fewer.
Why did the U.S. Supreme Court not extend the actual malice rule to private persons?
- Public figures have greater access to the media - Public figures assume risk of injury from falsehoods - State has a legitimate interest in compensating private individuals
What are the defenses to a libel action?
-Truth - must be a false statement. -Substantial Truth - The gist of story might be substantially true. But the rest is untrue. Absolute Privilege - cannot be defended under these circumstances: Government officials, U.S Senators & Reps. and Federal legislature, Executive Branch officials, State Legislatures, Comments in judicial proceedings), -Qualified Privilege - capable of being defeated. Journalists privilege: (Official reports/proceedings, judicial/quasi judicial proceedings, arrest reports (be careful w/ allegedly), unofficial proceedings - local meetings) -Conditions of Privilege -conditions of journalists privilege: (Accuracy, fairness, attribution, common law malice - not publishing with intent to hurt someone) -Neutral Reportage (Newsworthy, responsible person/organization, about public official, accurately reported & balanced, impartially reported) -Fair Comment and Criticism-opinion defense: (Accurately stated, widely known, easily accessible) -Fact v. Opinion (Ordinary meaning of statement, verifiability, context & setting (editorial, etc milkovich case even "in my opinion" can be libelous), metaphors) -Statute of Limitations - must bring action for every case unless its murder. Within two years of you being libeled, you must be bring libel. Otherwise, you no longer have an action. What's done is done. -Libel-Proof Plaintiff - if person has such a bad reputation, then there's no reason to bring case to court. Wasting courts time. -Broadcaster's Privilege for Political Ads - broadcaster's are required to carry certain number of poliical ads. So, if the ads turn out to be libelous, broadcaster's are protected. This is an absolute privilege. -Consent - if you consent to a libelous statement, then you can't bring libel -Wire Service
What are the sources of law?
1. Constitutional Law (Supreme Law of the Land) 2. Statutory Law (law passed by a body of legislature) 3. Common Law (judge made law, based on precedent law, stare decisis - let past decisions stand) 4. Equity Law (Law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy), 5. Executive Actions (president), 6. Administrative Law (FCC FEC, FTC, FDA, SEC, administrative bodies to watch over industries & make decisions, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties)
What is a prior restraint? Are there any circumstances that would permit a prior restraint?
Action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication. Prior restraint exists when any government body or representative reviews speech or press prior to distribution and stops the dissemination of ideas before they reach the public." It's "the most serious and the least tolerable infringement on First Amendment rights." pre-publication agreements signed by classified employees affecting classified documents, military security review, licensing (public forums, motion pictures, broadcasting & cable), discriminatory taxation prohibited. Government cannot tax businesses they don't like. a. When government employees are required to sign pre-publications agreements saying they won't release certain information. Government is allowed to read before you publish, to make sure no sensitive information is leaked. It's a lifetime commitment. b. Military security review: journalists going to war sign contracts that won't release stories without government previewing. c. Licensing: public forums, motion pictures, broadcasting, and cable. Can't discriminate about who you license to. d. Non-content based regulation: time, place, manner restrictions
Gertz v. Welch
Actual malice extend to private persons? Supreme Court said no. Court will not extend the rule as a matter of constitutional law. But it left the door open for states to do so if they choose. No strict liability... states must set fault standard. Gertz not a public person The U.S. Supreme Court has defined categories of public figures required to prove actual malice as the standard of fault if they sue for libel. In this case, the Court said that some people "occupy positions of such persuasive power and influence that they are deemed public figures for all purposes." An all-purpose public figure is anyone whom a court labels to be "public" under all circumstances. After this came 3 types of public figures.
What are the standards of liability for libel of public officials? What is the test to determine whether someone is a public official?
Actual malice. Involuntary - one who becomes a public person through no fault of All purpose - celebrities Limited purpose - thrust, public controversy, influence outcome
What article in the Constitution provides for the role of the judiciary?
Article 3; Article 2 is Executive and Article 1 is Legislative. This article also creates the Supreme Court and gives Congress the authority to create lower federal courts
AP v. Walker
Case addressing concept of "reckless disregard" for the truth "the Supreme Court cited one significant factor: "The evidence showed that the Butts story was in no sense 'hot news,' and the editors of the magazine recognized the need for a thorough investigation of the serious charges.... In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination.... Considering the necessity for rapid dissemination, nothing in this series of events gives the slightest hint of a severe departure from accepted publishing standards." "Thus, the urgency of a story has a significant bearing on whether the methods used by the news media defendant exhibit reckless disregard for the truth" "In addition, the reliability of a story's source and the believability of the information are factors in the judgment." AP reported that retired General, Walker, had encouraged violence Supreme Court ruled that AP acted responsibly and checked the story with reliable sources Segregationist Walker said to lead charge against federal martial, but he didn't. AP wasn't found guilty because he was known as a segregationist. Public figures, like public officials, must prove actual malice
Schenck v. US
Charles Schenck, a Socialist Party member, mailed anti-draft pamphlets to men in Philadelphia. The pamphlets encouraged readers to reject the government's pro-war philosophy and oppose U.S. participation in World War I. the U.S. Supreme Court ruled on March 3, 1919, that the freedom of speech protection afforded in the U.S. Constitution's First Amendment could be restricted if the words spoken or printed represented to society a "clear and present danger."
What does the First Amendment actually say? What rights does it protect? What are the limits of the rights?
Congress shall make no law respecting: • 1. an establishment of religion, or prohibiting the free exercise thereof; • 2. or abridging the freedom of speech, • 3. or of the press; • 4. or the right of the people peaceably to assemble, and to • 5. petition the Government for a redress of grievances. Under the First Amendment, speakers do not have a right to communicate serious threats of bodily injury or death to others, incite imminent lawless action where that action is likely to occur, or conspire to commit criminal acts. Traditional public forums include areas historically used and created for public use or expressive activity. (streets, parks) Limited/designated public forums exist when government permits public use under specific conditions of spaces with other primary purposes, such as school buildings. (platform, room, newspaper) Nonpublic forums arise when government property has a primary purpose that is incompatible with public use (e.g., inside the Pentagon or a prison, military base)." Several U.S. Supreme Court rulings established that government generally cannot force private organizations to include individuals or to support messages with which they disagree"
What is post-publication punishment? How does it differ from prior restraint?
Consequences after publication - subsequent punishment. constitutional unlike prior restraint. Prior restraint differs because with prior restraint, it is banned before publication.
New York Times v. Sullivan
Constitutionalized libel law in the U.S., eliminated strict liability in libel cases, required that public officials prove "actual malice" in order to recover damages for defamation as a result of criticism of them in their official conduct One of the most important legal cases in the history of American constitutional law is a libel case. A coalition of civil rights leaders purchased space in The NYT for a full-page statement. Carrying the headline "Heed Their Rising Voices," the "advertorial" made charges against officials in Southern states who they claimed used violent and illegal methods to suppress the marches. Although the gist of the statement was factually accurate, there were some errors of fact. Asserting he had been defamed, L.B. Sullivan, the police commissioner of Montgomery, Ala., filed a libel claim against the Times and some of the civil rights leaders who had purchased the newspaper space. Alabama ruled in Sullivan's favor. Supreme Court ruled in favor of NYT. The Court's decision in Sullivan was based on the premise that to readily punish a media organization for publishing criticism of government officials was contrary to "the central meaning of the First Amendment," an argument that for the first time applied the protections of the First Amendment to libel law.
How does a case begin and proceed through the federal court system?
District Court (original jurisdiction, appeal to Court of Appeal) --> Circuit Court of Appeals (no original evidence or jurisdiction; hears from lower federal courts and federal administrative agencies; appeal to Supreme Court) --> U.S. Supreme Court (appellate jurisdiction (some original), interprets Constitution; have last word; accepts by writ of certiorari.)
What is the "clear and present danger" test?
Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm. Schenck v. U.S. (1919). Brandenburg v. Ohio (1969)
What are the elements of a libel claim?
Falsity (plaintiff must prove statement is false), identification (plaintiff must prove that he/she was the specific person whose reputation was harmed), publication (plaintiff must show statement was made public), defamatory meaning (the material must be defamatory. Libel per se - considered defamatory on its face;defamatory without further proof. Libel per quote- "Libel that is actionable only when the plaintiff introduces additional facts to show defamation," fault (a plaintiff must show that the defendant was at fault in making in making public the allegedly false & defamatory statement), harm.
What must a plaintiff prove in a defamation case?
Falsity; A private plaintiff will have to prove negligence while a public plaintiff show actual malice. Burden of proof lies on plaintiff. The plaintiff's libel case: 1) a statement of fact, 2) that is published, 3) that is of & concerning plaintiff, 4) that is defamatory, 5) that is false, 6) that causes damages (or harm) and, 7) for which the defendant is at fault
Are punitive damages ever permitted against a media defendant in a libel suit? Under what circumstances?
If it is a public person they must prove actual malice to recover any damages. If it is a private person they must prove negligence to recover compensatory damages. If a private person involved in a public controversy must prove actual malice to recover presumed/punitive damages. Private person involved in private issue must prove negligence to recover presumed/punitive damages & compensatory damages
What are the eight especially sensitive categories of libel?
Impute to another a loathsome disease, accuse another of serious sexual misconduct, impugn another's honesty or integrity, accuse another of committing a crime, or of being arrested or indicated, allege racial, ethnic, or religious bigotry, impugn another's financial health or credit-worthiness, accuse another of associating with criminals, assert incompetence or lack of inability in one's trade, business, profession or office.
Watts v. US
In Watts v. United States, 394 U.S. 705 (1969), the Supreme Court held, without the benefit of oral argument, that the First Amendment does not protect true threats.
What is "actual malice"?
In libel law, a statement made knowing it is false or with reckless disregard for its truth."
Who are the current U.S. Supreme Court Justices?
John Roberts Jr. (Chief Justice ) Clarence Thomas - George H.W. Bush Samuel Alito Jr. - George W. Bush Sonia Sottomayer - Obama Elena Kagan - Obama Neil Gorsuch - Trump Brett Kavanaugh - Trump Amy Coney Barrett - Trump Ketanji Brown Jackson - Biden
Di Salle v. PG Publishing
Judge who sued over this story about him defrauding a will. He was awarded 2.2 million dollars. Judge is a public figure. Has to prove actual malice. stand of actual malice and won 2.2 million dollars. Punitive damages because it was untrue/ libel statement. Public person. Public matter, actual malice must be used
Who can sue for libel? Persons? Corporations? Governments?
People & corporations can. Government agencies can't. But government officials can. They're considered public - present & former government office holders, whether elected or appointed to office. Also, supervisors in government. Can't liable a dead person. If a child has been libeled, can bring action through parent. Government can't sue you for libel. But you can sue them for libel.
What types of motions and pleadings are available in civil court litigation?
Pleadings: affidavit, default judgment, motion to dismiss, discovery, interrogatories, subpoena, summary judgment Motions: motion for directed verdict, jury charge/deliberations, verdict, motion for JNOV (non obstante veredicto), motion for new trial
What are prepublication agreements? Do they violate the First Amendment rights of government employees?
Prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm. No, they are constitutional. Government is allowed to read before publishing to make sure no sensitive info is shared. Government employees sign agreements at the beginning of work.
What are the types of damages?
Presumed damages (presumption that there was damage. Without proving actual malice or actual damage. Libel per se. Without having to prove any type of hurt or injury), Compensatory damages - most common form. Tries to put plaintiff back to state that they were before libel, involves Actual damages - speaks to emotional distress. I can't sleep, I have put on weight, loss of spouse, etc. Loss of reputation. These must be proved in court although they are not quantifiable & Special damages - damages that are quantifiable. For example, financial loss. Because of the immense emotional distress, I have to see therapist and it costs $20. That is quantifiable. Out of pocket loss, Punitive damages (Intent of punitive damages is to punish the media/person so that it doesn't happen again. Aim is to punish reprehensible conduct).
What are the types of damages plaintiffs can sue for?
Presumed, compensatory (actual loss) & punitive damages (punished for outrageous conduct).
What are the legal limits of liability for a private-person libel claim? What standard of liability is not permitted (and under what circumstances)?
Private person typically needs to prove negligence in a libel case. Supreme Court did not extend actual malice rule to private persons. But states can. However, states CANNOT impose strict liability. Must set fault standard. Private persons involved in a private matter need only prove negligence to recover both presumed/punitive and compensatory damages Private persons involved in a public issue must prove actual malice to recover presumed/punitive damages and prove negligence to recover compensatory damages. "Strict liability OK in some cases involving private individuals and private speech" Public person/private issue- actual malice
Curtis Publishing v. Butts
Public figures, just like public officials, must prove that the press acted with actual malice in order to recover damages for defamation. Public figures - In libel law, a plaintiff who is in the public spotlight, usually voluntarily, and must prove the defendant acted with actual malice in order to win damages" Georgia football coach accused of fixing the game. Over hearer reported it and the story ran. Accused of libel, but Justice Warren believed actual malice should be necessary. Court ruled to give Butts compensatory damages and punitive damages because they found actual malice and negligence. Court determined in 1967 (Butts and Walker) that public figures should meet the same standard of fault as public officials, the Court identified more specific categories of public figures in subsequent cases.
What is the constitutional test to analyze a "time, place or manner" restriction?
The O'Brien test - A three-part test used to determine whether a content-neutral law is constitutional." O'Brien burned a draft card in protest of the Vietnam War. The Supreme Court upheld his conviction. "The law was content neutral because it did not target disfavored viewpoints and was narrowly tailored because it left O'Brien free to express his opposition to the draft in other ways" "Under the O'Brien test, courts find a law content neutral and constitutional if the law (1) is unrelated to the suppression of speech, (2) advances an important government interest, and (3) is narrowly tailored to achieve that interest while only incidentally restricting protected speech. "
What principle applies the First Amendment to laws enacted by the states? What is the amendment that provides for the protection?
The incorporation doctrine: · incorporation prevents the states, as well as the federal government, from abridging protected First Amendment rights." The 14th amendment - 1. No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Holds that most, but not all of the guarantees in the Bill of Rights limit state and local government ad well as the Federal government through the Due Process Clause of the 14th amendment.
What must government be concerned about when it comes to licensing?
The license program must not be too vague and the government cannot discriminate. public forums- certain forms of expression like parades require licenses to protect public safety. Rights to licenses sunject only to content-neutral time place and manner which help scheduling and use of public forums motion pictures- local governments may license motion pictures as a means of dealing with "peculiar problems. Film licensing standards must not be unconsttituitionally vague. broadcasting- licenses may be required to serve the public interest because of limited amounts of space on the electromagnetic spectrum cable- local government grants licenses known as franchises to cable operators. Franchises authorize construction and operation of cable systems. oversight of franchises is directing at enforcing the franchise and its periodic renewall.
What are the main ethical theories used by journalists and who are their exponents?
Virtue Ethics: Aristotle, virtue/morals, aim is to develop character, doctrine of the mean, aim is happiness/eudaimonia, four cardinal virtues: prudence, temperance, courage, justice, pro is the flexibility, negative is the vagueness, Foot said reliance on others = human flourishing Duty/Deontology Ethics: Kant, universalist, moral agents, ends do not justify the means, categorical imperative, critics are Ross & conflicting duties Consequentialist Ethics - Mill, utilitarian, providing the greatest benefit for the greatest number of people, utilitarian means acts are judged based on how much good outcome it provides, criticisms are what of moral duties? inability to predict future outcomes? tyranny of the majority? Justice Ethics - Rawls, rejects utilitarian approach, aimed not at the greatest good but of justice (fairness and avoiding harm), distribution of scarce goods, veil of ignorance is there is liberty for everyone, social policies go protect least advantaged, and justice
it possible to defame a corporation or a product?
Yes Business defamation: provide poor service or committed a crime, language asserting, selling harmful and ineffective product, financial insolvent. Product defamation or trade libel: quality or usefulness of a commercial product rather than the company itself.
What is the strict scrutiny test? What is the "rational basis" test?
a court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance its compelling interest. Rational review. If you're going to limit my speech, there must be a compelling interest. The rational basis test is a standard of review applied by courts to questions of constitutional law. Under this test, a law will be declared constitutional so long as it is rationally related to a legitimate government interest.Doesn't have to be compelling but it can't be arbitrary. Has to be rational.
Near v. Minnesota
presumption of unconstitutionality. The Court's modern understanding of prior restraint originated in this case, the Court said that prior restraint, especially any outright ban on expression, is the least tolerable form of government intervention in the speech marketplace. The case began after the publisher of a Minneapolis newspaper printed charges that city officials allowed Jewish gangsters to run gambling, bootlegging and racketeering businesses across the city. When the publisher could not show that the attacks were true and published with good intent, the court shut down the paper under a state public nuisance law that punished publication of "scandalous or defamatory material." On review, the Supreme Court ruled that the permanent ban on future issues of the newspaper was unconstitutional. The Court said the First Amendment stands as a nearly absolute barrier to classic prior restraints. Government prohibitions before publication are unacceptable unless the government can show that the action is essential to avoid a very narrow list of harms, such as the disclosure of military movements. May not censor or prohibit a publication in advance • except when a communication is obscene, incites violence or reveals military secrets • and the government makes a specific showing that a prior restraint is justified. • In all other cases, government may punish communications only after the fact.
