MMC 4208 Exam 1

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 (old court, not enough punishments with common law, came up with remedies) 5. Executive Actions 6. Administrative Law (FCC FEC, FTC, FDA, SEC, administrative bodies to watch over industries & make decisions)

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. Public figure libel plaintiffs are required to prove actual malice. Limited-Purpose Public Figure: In libel law, those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves 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.

Nonpublic Forum

Allows for free expression but not open to public discourse (military base, airports, shopping malls, prisons)

What is group libel?

Law allows any member of a group to sue when the entire group has been libeled. The smaller the group, the more likely it is that its individual members have been identified. Usually 25 or less. Sometimes 100 or less. Each person has to be independently identifiable.

Which of the following cannot sue for libel? Adults Corporations Local governments Children Government officials

Local governments

Miami Herald v. Tornillo

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), was a United States Supreme Court case that overturned a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content.

Curtis Publishing v. Butts

Negligence; Pg. 2 lecture 5

Civil Court Trial

Opening Direct questions, examination-in-chief Cross examination Closing

Who can sue for libel? Persons? Corporations? Governments?

People and corporations can, governments cannot.

The 14th Amendment

Section 1, Second Sentence: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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

What is the strict scrutiny test? What is the "rational basis" test?

Strict scrutiny 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: A standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review.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.

Brandenburg v. Ohio

The U.S. Supreme Court found that the Ohio law violated Brandenburg's right to freedom of speech. The Court used a two-pronged test to evaluate laws affecting speech acts: 1. speech can be prohibited if its purpose is to incite or produce imminent lawless action; and 2. doing so is likely to incite or produce such an action. ; Clear and present danger

Reckless Disregard

The statement was made with a high degree or probable falsity, or the reporter/editor/communicator entertained serious doubts about the truth of the publication

What is the process by which a case is heard by the U.S. Supreme Court?

•attorney files written argument, called a petition for certiorari,asking Court to review a decision by federal or state supreme court. •four justices must vote yes to grant writ of certiorari. •if and when a petition is denied, the 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 -opinion draft - like a persuasive essayf

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 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 to peaceably assemble, and to petition the government for a redress of grievances."

What is the jurisdiction of federal district courts? What types of claims can a federal district court here?

1. 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.

Briefing a Case

1. Cause of Action (one sentence): is it an action for an injunction or an action for damages? what is the nature of the underlying complaint?? 2. Facts (2-3 sentences): the essential facts that initially led to the legal conflict; just the legally relevant facts 3. Proceedings Below (1-2 sentences): the decisions of the courts and agencies that decided the case before it appealed to the current court 4. Issue(s) (1-3 sentences): the legal question(s) for the court to answer, should be stated in the form of a question 5. Holding(s) (1-2 sentences): answers to the legal question(s) posed in the issue(s), states how the case was decided on appeal 6. Reasoning (as many sentences as necessary): explain why the court arrived at its decision, give all the reasons that the court gives for the rulings

What are the eight especially sensitive categories of libel?

1. Impute to another a loathsome disease 2. Accuse another of serious sexual misconduct 3. Impugn another's honesty of integrity 4. Accuse another of committing a crime, or of being arrested or indicted 5. Allege racial, ethnic or religious bigotry 6. Impugn another's financial health or credit-worthiness 7. Accuse another of associating with criminals 8. Assert incompetence or lack of ability in one's trade, business, profession or office

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

A type of forum the U.S. Supreme Court has identified in free-speech decisions as having been historically open for public discourse ad having "immemorially been held in trust for the use of the public is known as

A traditional public forum; streets, parks, and other public places

What is libel?

A written defamation; an untrue 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?

Absolution, Bad Tendency, Clear and Present Danger, True Threats

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; pre-publication agreements signed by classified employees affecting classified documents, military security review, licensing (public forums, motion pictures, broadcasting & cable), discriminatory taxation prohibited.Exceptions: 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

What article in the Constitution provides for the role of the judiciary?

Article 3; Article 2 is Legislative and Article 1 is Executive

Competing Interests

Both interests are important; aim is to determine which is more important interest; media law: freedom of speech v. privacy, freedom of speech v. reputation

Hosty v. Carter

College first amendment freedoms

Kincaid v. Gibson

College first amendment freedoms

Define ethics

Concerned with the process of finding rational justifications for our actions when the values that we hold come into conflict; pursuing an understanding of morality, which provides understanding of ourselves as bearers of responsibilities in the service of values

The First Amendment

Congress shall make now 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 the petition the Government for a redress of grievances

New York Times v. Sullivan

Constitutionally 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

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. Content-neutral laws are laws that incidentally and unintentionally affect speech as they advance other important government interests.

First Amendment Freedoms for Corporations

Corporate media/nonmedia corporate distinction: the press, broadcasters (least amount of freedom), cable operators (second most moderated), telephone companies, internet

U.S. District Court

Court of original jurisdiction; right of appeal to U.S. Court of Appeal

What are injunctions? How are they used in prior restraint cases?

Court orders 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 US.: preventing the Pentagon Papers to be published was unconstitutional.)

U.S. Circuit Courts of Appeal

Divided into 13 circuits, hears appeals from: lower federal courts and federal administrative agencies, right to appeal to Supreme Court

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); Justice Oliver Wendell Holmes wrote for a unanimous Supreme Court that government had a right and duty to prevent speech that presented a "clear and present danger"

The Federal Court System

Established by Article III of U.S. Constitution, gave power to Supreme Court, authorized Congress to create lower federal courts

What are the elements of a libel claim?

Falsity, identification, publication, defamatory meaning, fault, 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.

How does the First Amendment apply to adults?

First Amendment freedoms: speak & publish, associate, receive information, solicit funds, no compelled speech

Gitlow v. New York

Gitlow v. New York (1925) was 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.

Hazelwood v. Kuhlmeier

Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988), was a landmark decision by the Supreme Court of the United States that held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression.; High School first amendment freedoms

U.S. Supreme Court Jurisdiction

Highest court of the land, 9 members, appellate jurisdiction, interprets the Constitution, last word in interpreting federal law, accepts cases by Writ of Certiorari, original jurisdiction

Incorporation Doctrine

Holds that most, but not all of the guarantees in the Bill of Rights limit states and local governments as well as the federal government through the Due Process Clause of the 14th Amendment

Watts v. U.S.

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.; True threats

What is "actual malice"?

In libel law, a statement made knowing it is false or with reckless disregard for its truth; knowledge that the information was false, or reckless disregard of whether the report was false or not

What is post-publication punishment? How does it differ from prior restraint?

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 US.: preventing the Pentagon Papers to be published was unconstitutional.) It is constitutional, unlike prior restraint. Prior restraint differs because with prior restraint, it is banned before publication.

Dedicated Public Forum

Intentionally opened for public discourse (platform, room, newspaper)

What is the Supreme Court doing when it approves a writ of certiorari?

It is agreeing to hear the appeal of a lower court ruling.

Who are the current U.S. Supreme Court Justices?

John Roberts Jr. (Chief Justice ) - George W. Bush Clarence Thomas - George H.W. Bush Ruth Bader Ginsburg - Clinton Stephen Bryer - Clinton Samuel Alito Jr. - George W. Bush Sonia Sottomayer - Obama Elena Kagan - Obama Neil Gorsuch - Trump Brett Kavanaugh - Trump

The First Amendment and Government Employees

Limitations: political campaigns, potentially disruptive remarks, Whistleblower Protection Act of 1989

Marbury v. Madison

Marbury v. Madison, legal case in which, on February 24, 1803, the U.S. Supreme Court first declared an act of Congress unconstitutional, thus establishing the doctrine of judicial review. The court's opinion, written by Chief Justice John Marshall, is considered one of the foundations of U.S. constitutional law. ; Judicial Review, Doctrine of Precedent; Pg.38

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) Marketplace Critics - MacKinnon & Barron Self-Governance - Meiklejohn Fourth Estate - Blasi (Historic vs. Modern) 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)

Does military security review of news media work violate the First Amendment?

No

What is the constitutional test to analyze a "time, place or manner" restriction?

O'brien test

A.P. v. Walker

Pg. 2 lecture 5

Gertz v. Welch

Pg. 3 lecture 5; Presumed/punitive damages

Civil Court Terms

Plaintiff Defendant Complaint Allegations and plea (damages, injunction) Answer/counterclaim (admissions, denials) Petitioner Respondent

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 the types of damages?

Presumed damages, compensatory damages (actual damages, special damages), and punitive damages

What are the types of damages plaintiffs can sue for?

Presumed, compensatory (actual and special), punitive

Di Salle v. PG Publishing

Presumed/punitive damages

Dun & Bradstreet v. Greenmoss

Presumed/punitive damages

Near v. Minnesota

Prior restraint, presumption of unconstitutionality

What is a non-content based regulation?

Regulate speech without regard to its subject matter or viewpoint conveyed.

Schenck v. U.S.

Schenck v. United States, case in which 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."

State Court Appeals

State Supreme Court may appeal directly to U.S. Supreme Court

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. Schools have the right to promote particular types of student speech and set standards within reason (Hazelwood v. Kuhlmeier). Colleges have more rights and cannot be banned. Hazelwood does not apply. Needs to be approved by admin (Hosty v. Carter)

What principle applies the First Amendment to laws enacted by the states? What is the amendment that provides for the protection?

The incorporation doctrine; 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. be concerned about when it comes to licensing? 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 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

Limitations on Speech on Government or Other Property

Traditional public forum, dedicated public forum, nonpublic forum

What are the defenses to a libel action?

Truth Substantial Truth Absolute Privilege (Government officials, U.S Senators & Reps. and Federal legislature, Executive Branch officials, State Legislatures, Comments in judicial proceedings), Qualified Privilege (Official reports/proceedings, judicial/quasi judicial proceedings, arrest reports, unofficial proceedings) Conditions of Privilege (Accuracy, fairness, attribution, common law malice) Neutral Reportage (Newsworthy, responsible person/organization, about public official, accurately reported & balanced, impartially reported) Fair Comment and Criticism (Accurately stated, widely known, easily accessible) Fact v. Opinion (Ordinary meaning of statement, verifiability, context & setting, metaphors) Statute of Limitations Libel-Proof Plaintiff Broadcaster's Privilege for Political Ads Consent Wire Service

Federal Constitution

U.S. Constitution - 1776 First Amendment - 1791

How does a case begin and proceed through the federal court system?

U.S. District Court -> U.S. Circuit Court of Appeals -> U.S. Supreme Court

Constitutional Doctrines

Vagueness, Overbreadth, Strict Scrutiny, Rational Basis

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

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. Virginia v. Black, 538 U.S. 343 (2003), is a First Amendment case decided in the Supreme Court of the United States. ; True threats

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

Can an editorial be libelous?

Yes

Is it possible to defame a corporation or a product?

Yes, business: provide poor service or committed a crime, language asserting, selling harmful and ineffective product, financial insolvent. Product disparagement or trade libel: defames the quality or usefulness of a commercial product rather than the company itself.

The principle that provides for the application of the First Amendment to laws enacted by the states is known as

incorporation

A law that may be found to be overbroad is on the basis that it

limits more activity than necessary to address the compelling government interest it's aimed at protecting

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. When government is allowed to read before you publish to make sure no sensitive info is shared. Government employees sign agreement at beginning of work.

In Hazelwood v. Kuhlmeier, the U.S. Supreme court effectively authorized censorship of

publications sponsored by the school

The First Amendment grants adults full protection of free expression in the area of

refusing to speak

What devices help to mitigate damages in a libel suit?

retraction, correction/clarification, reliance on a usually reliable source not defense don't take away liability

A judgment made by a court that is based on the pleadings, admissions, affidavits, answers to interrogatories and depositions is called a

summary judgment

The members of a group may sue for libel on the basis of a defamatory story about the group if

the group is small enough that each member can be identified

A limited-purpose public figure in one who

thrusts himself/herself into public controversies in an attempt to influence the outcome