MC3080 Chapter 3 Speech Distinctions

Imminent harm or play "no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality"

Speech and press content are not protected if they would cause...

True Threat

Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

Brandenburg/Hess Incitement Test

Test to determine when speech is sufficiently likely to prompt illegal action that it no longer warrants First Amendment protection

Not Absolute

The First Amendment says Congress may not abridge free speech, but the prohibition is...

Incorporation Doctrine

The Fourteenth Amendment concept that most of the Bill of Rights applies equally to the states; prevents the states, as well as the federal government, from abridging protected First Amendment rights

True

The Supreme Court has established that universities have a greater obligation to create and maintain forums for broad public discussion than do the public schools

Limited Public Forums

The Supreme Court has viewed public schools and universities- including school-sponsored events, publications, funding and physical spaces

Hazelwood v. Kuhmeier

The Supreme Court said school administrators, not student reporters and editors, have authority to determine the appropriate content of a school-sponsored student newspaper. In a footnote, however, the Court made clear that the decision did not apply to the university student press

Papish v. Board of Curators of the University of Missouri

The U.S. Supreme Court established that "the mere dissemination of ideas- no matter how offensive to good taste- on a state university campus may not be shut off in the name alone of 'conventions of decency'

USA Patriot Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The act gave law enforcement agencies greater authority to combat terrorism; Places a range of political organizing, activism and speech within the category of support for terrorism and expanded the power of law enforcement and investigative authorities

Morse v. Federick

The case began when high school senior Joseph Frederick and others displayed a banner reading "Bong Hits 4 Jesus" during a school field trip. Frederick said he did it for a laugh and to get himself on TV. The school's principal, Deborah Morse, told him to remove the banner. When he refused, she tore down the sign and suspended him for 10 days for violating the school policy that banned the advocacy of illegal drug use. Frederick sued.

Chilling Effect

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right

(1) Directed toward inciting immediate violence or illegal action and (2) likely to produce that action

The incitement test allows punishment of "advocacy of illegal action" if the speech is...

Proximate Cause

The most difficult element to prove

A direct relationship between the defendant's action and the plaintiff's injury

To determine proximate cause, courts decide whether there is...

A duty of care that was breached and that the breach was the proximate cause of the injury

To establish liability, the plaintiff must prove the media had...

(1) Reasonable foreseeability of harm or (2) proximate (directly related) cause of the harm

To win a lawsuit for injury caused by media negligence, the plaintiff must prove breach of media's duty of care because the content posed a...

(1) Are directed at an individual and (2) automatically inflict emotional harm or trigger violence

Under the Supreme Court's fighting words doctrine, the First Amendment does not protect words that...

Protected by the Constitution

Unlike obscene speech, speech about violence is...

Blackmail; perjury; false advertising; obscenity

What categories of speech are unprotected by the First Amendment?

(1) A plaintiff to show that media content would result in violent or unlawful activity immediately after media exposure, which is nearly impossible to prove (2) Proof media content is likely to cause a reasonable person to act illegally

What does the incitement test require?

Difficult to generalize from the resulting fact specific decisions; Does not craft clear rules for the courts and society to apply in similar situations

What is a drawback to ad hoc balancing?

The Supreme Court upheld the school's decision to suspend Fraser for three days and prohibit his selection as graduation speaker. The Court said that when student speech occurs during a school-sponsored event , the student's liberty of speech may be curtailed to protect the school's educational purpose, especially when young students are in the audience; the Fraser Approach

What was the outcome of the Bethel School District v. Fraser case?

Fighting Words

Words not protected by the First Amendment because they cause immediate or illegal acts

Underinclusive

A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment

Hate Speech

A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like

Categorical Balancing

A judge weighs a broad category of speech against competing social interests, such as political speech against privacy

As Applied

A phrase referring to interpretation of a statute on the basis of actual effects on the parties in the present case

Tort

A private, or civil, wrong for which a court can provide remedy in the form of damages

Protecting the national security

A sufficiently important concern to outweigh speech protection under certain conditions

Ad Hoc Balancing

Balances the benefits of the expression against any harm it poses to competing values; weighing competing values case by case

Duty of Care

Determined by whether the media's actions were the proximate cause of a harm that a reasonable person would have foreseen

Proximate Cause

Determining whether it is reasonable to conclude the defendant's actions led to the plaintiff's injury

Viewpoint-Based Discrimination

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally

It helps maintain social stability because it provides catharsis to discontent individuals and allows them to blow off steam

How does free speech serve as a societal safety valve?

Rarely wins; plaintiffs generally fail to convince courts that media intentionally encourage people to harm themselves or others

If a court uses the incitement test when a mass medium is sued for causing physical harm, the plaintiff...

It upheld the siblings' rights to wear black armbands around their arms to protest the Vietnam War.

In the case of Tinker v. Des Moines Independent Community School District, what did the court do?

Symbolic Speech

Nonverbal expression, in the form of burning flags, wearing armbands or marching through the public streets

Brandenburg v. Ohio (1969)

Ruled that the First Amendment protects the right to advocate but not to incite violence; The First Amendment does not protect speech that incites, prompts or provokes immediate violence

(1) Limit excessive content that is compatible with the school's educational priorities nor (2) target specific content without a strong educational justification

Rules affecting expression in public schools likely are constitutional if the policies neither

Prevent speech that would directly undermine the school's educational mission

School officials generally may not dictate the content of student speech except to...

Fearful

Courts tend to restrict speech more readily when the public is...

Clear and Present Danger

Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious or imminent harm

The Brandenburg Decision

Established that government may punish criticism of government may punish criticism of government or advocacy of radical ideas only when speakers intentionally incite immediate illegal activity

Tinker v. Des Moines Independent Community School District

Established the school classroom as a location that is "peculiarly the marketplace of ideas" where speech may be regulated only to prevent a "substantial disruption" to school activities

(1) Direct the threat toward one or more individuals (2) with the intent of causing the listener(s) to fear bodily harm or death

For speech to become punishable as a true threat, a speaker must...

Negligence

Generally, the failure to exercise reasonable or ordinary care

Rarely win

Individuals suing the media for inciting harm...