FREEDOM OF FIRST AMENDMENT B****

united states v. grace

UPHELD RIGHT TO PROTEST IN FRONT OF SUPREME COURT

Landmark Cases

Very Important - So important

bigelow v. virginia (landmark case)

abortion things

general damages

awarded for pain and suffering

chapter 8

commercial speech

criminal libel

jail prosecution v. defense

darwinism

scientific information and opinion on the development of life

libel

— Libel (print or broadcast)

Amount and Substantiality (fair use)

- One of the Four factors of fair use set in copyright act of 1976 • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

cohen v. california (landmark case)

"**** THE DRAFT" arrested and convicted - breach of peace - CONVICTION OVERTURNED -"one man's vulgarity is another man's lyric"

Kentucky Resolution of 1798

". . . that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States all lawful powers respecting the same did of right remain, and were reserved to the States or the people." THOMAS JEFFERSON

"marketplace of ideas" (Holmes' Dissent in Abrams)

". . . the ultimate good desired is better reached 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, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution." --Justice Oliver Wendell Holmes, Jr.

"clear and imminent danger" test

"...a clear and imminent danger that it will bring about forthwith certain substantive evils " - Holmes

Decision in Butts/Walker

"And both Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled 'public figures' under ordinary tort rules. Butts may have attained that status by position alone and Walker by his purposeful activity amounting to a thrusting of his personality into the 'vortex' of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able 'to expose through discussion the falsehood and fallacies' of the defamatory statements." --Justice John Marshall Harlan NEED TO PROVE ACTUAL MALICE FOR PUBLIC FIGURES

Equal Opportunities Law

"If any licensee shall permit any person who is a legally qualified candidate for any [federal] public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station:

stanley v. georgia

"Search" the "Guy" police obtained warrant to search stanley's house for gambling stuff - found dirty films - convicted him for possession of obscene material - CONVICTION OVERTURNED - does not apply to private possessions

Purpose and Character (fair use)

- One of the four characteristics of fair use • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

symbolic expression

"Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design." - Justice Robert Jackson

"actual malice"

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with (1) knowledge that it was false or with (2) reckless disregard of whether it was false or not." --Justice William Brennan CONCLUSIONS • The actual-malice standard is clearly intended to discourage the communication of falsehoods that are deliberate or that result from reckless disregard for the truth • The state of mind of the message source is a key factor in a libel action, for no person can be guilty of actual malice who sincerely believes that the message delivered was true • The time element concerning copy deadlines inherent in the medium is a key element of the test • All public communicators should be careful to qualify their messages with terms such as "reportedly" or "allegedly" when the facts are not fully verified

burstyn v. wilson (landmark case)

"The miracle" film banned by censors for being sacrilegious - LICENSE DENIAL REVERSED 1) liberty of expression in motion pictures is a right guaranteed constitutionally 2) blasphemy is not a constitutional basis for the suppression of ideas in U.S.

truth (defamation defense)

"Truth is generally the best vindication against slander." --Abraham Lincoln,

syndicalism

"a movement among industrial workers having as its object the transfer of the means of production and distribution from their present owners to unions of workers for the benefits of the workers" • A syndicalist was one who advocated a change in the political structure of our country • A criminal syndicalist advocated violent change in the society

young v. american mini- theaters

"anti skid row" no adult establishments w/i 1,000 feet of each other and 500 ft of neighborhood - ORDINANCE UPHELD

organization for a better austin v. keefe

"better austin" handed out leaflets denouncing local blockbusting realtor - keefe (realtor) sought judicial relief - court issued restraining order on leaflets - RESTRAINING ORDER ON LEAFLETS UNCONSTITUTIONAL

united states v. stevens

"crush videos" no depictions of animal cruelty - stevens arrested for dog fighting videos - CONVICTION OVERTURNED - dogfighting did not fit into one of established unprotected categories

sable communications v. fcc

"dial - a - porn" Sable communications - challenged statute banning interstate indecent and obscene phone calls 0 ban on obscene upheld "indecent" allowed

united states v. progressive

"how to build an atomic bomb" CASE DROPPED - INFO LEAKED AND PUBLISHED ELSEWHERE

zacchini v. scripps-howard broadcasting co.

"human cannonball" had his act filmed and put on tv -sued for appropriation DECISION TO ZACCHINI "But it is important to note that neither the public nor respondent will be deprived of the benefit of petitioner's performance as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it." --Justice Byron White

"imminent lawless action" test

"incitement" * actial incitement likely to produce immediate lawless conduct - brandenburg v. ohio

fcc v. fox television stations

"nude awakening" NYPD episode - DROPPED fcc did not give fair notice

barber v. time

"starving glutton" - had granted interview, not use of name or photo - DECISION TO BARBER "Certainly if there is any right of privacy at all, it should include the right to obtain medical treatment at home or in a hospital for an individual personal condition (at least if it is not contagious or dangerous to others) without personal publicity." --Supreme Court of Missouri

burstyn v. wilson (ch 5)

"the miracle" film

identification

#2: Identification • By name • By inference • By group

memoirs of a woman of pleasure v. Massachusetts

(Fanny Hill) erotic novel - charged w/ being obscene - found that it had enough social value to be erotic - allowed

privilege (defamation defense)

(absolute (Speech and Debate clause) or qualified (fair comment))

cohen v. california (landmark case)

**** THE DRAFT

Hoehling v. Universal City Studio

- Dude wrote book about german crewman who sabotaged the hindenburg - movie was made with similar idea by universal studio DECISION TO UNIVERSAL CITY STUDIO "To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots. " - Kaufman

cantrell v. forest city publishing co.

- FICTIONALIZATION - silver bridge collapsed - melvin cantrell died - reporter wrote story about how his death affected his family - then wrote follow up story - wife was not home, talked to kids - article painted family in false light, poverty and mistreating children VERDICT UPHELD - ARTICLE WAS FALSE LIGHT These were 'calculated falsehoods,' and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth."

Abrams v. United States (landmark case)

- Abrams and friends threw leaflets denouncing american involvement in russia out of factory window - prosecuted under espionage act - convicted & 20 yrs in prison CONVICTION UPHELD " . . . yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe." --Justice John H. Clarke

Sony Corporations of America v. Universal City Studios

- BETAMAX - could be used to record copyrighted programming BETAMAX IS FAIR USE NONCOMMERCIAL USE IS PERMISSIBLE "Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." --Justice John Paul Stevens

Zenger Trial

- Colonial printer john peter zenger published criticism of the NY governor William Cosby - at trial the judge instructs the jury to decide only the fact of publication -persuaded by defense, council - andrew hamilton - the jury holds that truth is a defense and acquits zenger

Dejonge v. Oregon

- Dejonge - member of the communist party - gave speech denouncing conduct of police • While critical of jail conditions and police treatment of the strikers, De Jonge never advocated illegal conduct or criminal syndicalism - convicted for violating oregon's criminal syndicalism law CONVICTION OVERTURNED "It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime"- hughes

Time v. Geis

- Film of Kennedy Assasination sold to life mag for mucho dinero • Josiah Thompson, author of Six Seconds in Dallas, unsuccessfully sought permission to use frames from the film in his book challenging the Warren Commission Report lone assassin theory (Thompson argued for four shots fired from three different locations) - as an alternative geis commissioned charcoal sketches of the pictures DECISION TO GEIS "There is a public interest in having the fullest information available on the murder of President Kennedy." - wyatt THE AMBIGUOUS NATURE OF FAIR USE "The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis" - souter

Frohwerk v. United States

- Frohwerk - editor of pro german newspaper - prosecuted - espionage act - articles opposed to american involvement in war -, he had no plan for disrupting the war effort and had not targeted draftees (unlike Schenck) - convicted - 10 yrs in prison CONVICTION UPHELD the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language." --Justice Oliver Wendell Holmes, Jr. • To prove Frohwerk's articles were unworthy of First Amendment protection, Holmes needed evidence that the articles had some effect on the war effort and this was nowhere to be found in the record. • "But we must take the case on the record as it is, and on that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out."

Suntrust Bank v. Houghton Miflin

- Gone with the wind parody - The wind done gone • Randall admitted that she used characters, events, and depictions from the original work, but she insisted that she was telling an entirely different story DECISION TO HOUGHTON MIFFLIN THE NOVEL IS TRANSFORMATIVE " the story is transformed into a very different tale, albeit much more abbreviated. " - Wood

Hosty v. Carter

- Governors State University - After a series of unflattering stories in The Innovator about the administration, Patricia Carter, the Dean of Students at Governor's State University claimed the right to review future issues of the student newspaper • Rather than submit to prior review, the students suspended publication and sued for damages 7th CIRCUIT DECISION TO CARTER HAZELWOOD MAY EXTEND TO COLLEGES Yet this footnote does not even hint at the possibility of an on/off switch: high school papers reviewable, college papers not reviewable. It addresses degrees of deference. Whether some review is possible depends on the answer to the public-forum question, which does not (automatically) vary with the speakers' age." - 7th circuit *After Hosty, college newspapers in the 7th Circuit (Illinois, Indiana, and Wisconsin) are at risk of censorship

Morse v. Frederick

- High School student "bong hits 4 jesus" banner during passing of olympic torch PRO DRUG SPEECH UNPROTECTED "The particular concern to prevent student drug abuse at issue here, embodied in established school policy extends well beyond an abstract desire to avoid controversy." - Roberts

Idea - Expression Dichotomy

- Idea - expression dichotomy holds that a copyright does not protect an IDEA, but rather the way in which the idea is EXPRESSED -"idea/expression dichotomy strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while protecting an author's expression" • The author or artist is rewarded for the expression; the idea in a copyright worked is immediately available for exploitation by everyone else

West Virginia v. Barnette

- Jehovah's witnesses and forced salute to flag at school - believed flag was an image did not want to salute DECISION - WEST VIRGINIA LAW UNCONSTITUTIONAL - CANNOT FORCE SALUTE TO FLAG "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." --Justice Robert Jackson

Brandenburg v. Ohio (landmark)

- KKK dude -made speech in field in ohio • Prosecuted and convicted under an Ohio criminal syndicalism law that made it a crime to advocate the use of violence to accomplish political or industrial reform CONVICTION REVERSED "These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." --Per Curiam What this means • To limit speech, government must prove 1) an intent to incite illegal action, and 2) the "lawless action" being urged must be imminent-- that is, immediate, impending, about to occur

Kincaid v. Gibson

- Kentucky State U. yearbook -School officials objected to the yearbook's color (purple), the yearbook's title ("Destination Unknown"), and the inclusion of photographs depicting current events and celebrities -BLOCKED DISTRIBUTION -students sued 6th CIRCUIT: COLLEGE YEARBOOK IS A PUBLIC FORUM "The Thorobred is a 'journal of expression and communication in the public forum sense.' The university's confiscation of this journal of expression was arbitrary and unreasonable. As such, it violated Kincaid's and Coffer's First Amendment rights." - 6th circuit court of appeals

Leibovitz v. Paramount Pictures

- Leibovitz - famous photographer - took picture of demi moore pregnant - reminiscent of botticelli's birth of venus - satirical movie poster for naked gun copied her photo DECISION TO PARAMOUNT - AD WAS TRANSFORMATIVE Nevertheless, the ad is not merely different; it differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the undue self-importance conveyed by the subject of the Leibovitz photograph. - Newman

Nichols v. Universal Pictures

- Nichols wrote play about jewish boy falling in love w/ catholic girl - Universal Pictures produced movie about irish boy who marries jewish girl - difficulty in distinguishing between an idea and expression NO INFRINGEMENT DIFFICULT TO DISTINGUISH "Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his 'ideas,' to which, apart from their expression, his property is never extended." --Judge Learned Hand,

texas v. johnson

- Outside of the 1984 Republican National Convention, Gregory Lee Johnson doused an American flag with kerosene and set it on fire • Johnson was charged under Texas law with the crime of desecrating a "sacred object," defined in the Texas penal code as knowingly defacing or damaging a public monument, a place of worship or burial, or a state or national flag • He was convicted, sentenced to a year in prison, and fined $2,000 REVERSED - FLAG BURNING IS PROTECTED SPEECH "To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries." - Brennan

perry education association v. perry local educators' association

- PEA v. PLEA - PEA teacher union - would have access to mailboxes - PLEA challenged MAILBOXES NON PUBLIC - CAN BE CLOSED

Licensing

- Radio stations must be licensed in oder to broadcast, can only broadcast on a limited amount of waves -protects public interest and right to listen to the radio - SPECTRUM IS SCARCE - REGULATION IS JUSTIFIED "The facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest." --Justice Felix Frankfurter "The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the 'public interest, convenience, or necessity.' Denial of a station license on that ground, if valid under the Act, is not a denial of free speech." --Justice Felix Frankfurter

Campbell v. Acuff-Rose Music

- Roy Orbison "pretty woman" satire - acuff - rose music declined to give permission to campbell, but they released the song anyway SUMMARY - PARODY IS FAIR USE *Purpose and character favors Campbell/2 Live Crew (transformative use) *Nature of the work Not helpful; (parodies always copy) *Amount and substantiality favors Campbell/2 Live Crew (parody must sample) *Effect on the potential market favors Campbell/2 Live Crew (parody does not compete with original) DECISION TO CAMPBELL -parody has an obvious claim to TRANSFORMATIVE VALUE -We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under §107." - souter

Salinger v. Random House

- Salinger reclusive - wrote letters to fans -hamilton wrote biography and quoted liberally from letters - salinger demanded the letters be removed from the book and be copyrighted *Purpose and Character The book may be considered 'criticism,' 'scholarship,' and 'research.'" --Judge Newman, *Nature of the copyrighted work Since the copyrighted letters are unpublished, the second factor weighs heavily in favor of Salinger." --Judge Newman *Amount and Substantiality "a large extent, they make the book worth reading. The letters are quoted or paraphrased on at least 40 percent of the book's 192 pages *Effect on the Market "Yet some impairment of the market seems likely. The biography copies virtually all of the most interesting passages of the letters, including several highly expressive insights about writing and literary criticism." --Judge Newman SUMMARY *Purpose and character of the use Favors RH/Hamilton (criticism or scholarship) *Nature of the copyrighted work Favors Salinger (unpublished letters) *Amount and substantiality Favors Salinger (40% of book) *Effect on the potential market *Favors Salinger (some impairment)

Hazelwood School District v. Kuhlmeier (Landmark)

- School newspapers - articles were submitted to the principal • When the May 13, 1983, issue was reviewed, the principal objected to two stories--one about teen pregnancy and one about the impact of divorce on teenagers • Since there was no time to change the stories, two pages were deleted and the paper was printed • The students sued, seeking injunctive relief and monetary damages DISTINGUISHING TINKER "The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. " - White SCHOOLS CAN REGULATE SCHOOL - SPONSORED SPEECH "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school- sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." - white INFAMOUS FOOTNOTE "We need not now decide whether the same degree of deference is appropriate with respect to school- sponsored expressive activities at the college and university level."

Board of Education of the Westside Community Schools v. Mergens

- Senior Bridget Mergens sought permission to form a Christian Bible Study Club with the same privileges as other student groups at Westside High School in Omaha, NE •request denied •mergers brought to court • Mergens invoked the Equal Access Act, a law that prohibits public secondary schools that receive federal financial assistance and that maintain a "limited open forum" (Westside High had 30+ student groups) from denying "equal access" to students who wish to meet within the forum on the basis of the content of the speech MERGENS PREVAILS "Although a school may not itself lead or direct a religious club, a school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion. Under the Act, a school with a limited open forum may not lawfully deny access to a Jewish students' club, a Young Democrats club, or a philosophy club devoted to the study of Neitzsche. To the extent that a religious club is merely one of many different student-initiated voluntary clubs, students should perceive no message of government endorsement of religion." - Sandra Day O'Connor

Rosemont Enterprises v. Random House

- Series of articles o howard hughes appeared in look magazine - after learning random house was going to make a biography of hughes rosement enterprises (front for hughes) bought copyright to look articles - claiming book was based on articles, rosemont threatened a copyright suit DECISION TO RANDOM HOUSE "Biographies, of course, are fundamentally personal histories and it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from such works. This practice is permitted because of the public benefit in encouraging the development of historical and biographical works and their public distribution, e.g., so 'that the world may not be deprived of improvements, or the progress of the arts be retarded.'" --Judge Moore,

Baker v. Selden

- dude (Selden) wrote a book about bookkeeping - other dude wrote a book about bookkeeping which sold more copies - wife of first dude sued for copyright infringement DECISION TO BAKER - CANNOT COPYRIGHT AN IDEA "The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account- books prepared upon the plan set forth in such book." - Bradley

lambert v. dow chemical

- dude injured at work and gross boss made posters with his image DECISION TO LAMBERT where defendant without first obtaining permission from plaintiff used one of these photographs, the color one in particular, as sort of a 'shocker' to remind plaintiff's fellow employees of the consequences of an industrial accident, defendant invaded plaintiff's privacy.

neff v. time

- dude was pictured in sports illustrated in an unflattering way - he had been photographed at public rally/football game DECISION TO TIME " publication of Neff's photograph taken with his active encouragement and participation, and with knowledge that the photographer was connected with a publication, even though taken without his express consent, is protected by the Constitution." --Judge Rabe Ferguson Marsh

wilson v. layne

- federal marshalls invite press to an arrest - entered wrong house - attacked father of fugitive -pictures were taken/not published -wilson's sued for intrusion DECISION TO WILSON "We hold that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant." --Chief Justice William Rehnquist

Fiske v. Kansas

- fiske - member of the industrial workers of the world - convicted under kansas syndicalism law - soliciting new members -CONVICTION OVERTURNED "The result is that the Syndicalism Act has been applied in this case to sustain the conviction of the defendant, without any charge or evidence that the organization in which he secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political change or revolution." --Justice Edward Sanford

Gitlow v. New York (landmark)

- gitlow - member of socialist party - convicted with violating NY anarchy law CONVICTED - *although first amendment extended to the states his CONVICTION UPHELD "A single revolutionary spark may kindle a fire that, smoldering for a long time, may burst into a sweeping and destructive conflagration. It cannot be said that the state is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration." --Justice Edward Sanford

Debs v. United States

- he was a wobblie -presidential candidate - gave anti-war speech in ohio -prosecuted under espionage act CONVICTION UPHELD "...the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind." --Justice Oliver Wendell Holmes, Jr.

barnes v. glen theater

- indiana statute - no public nudity - glen theater and kitty cat lounge sued - prevent application of statute to nude dancing - INDIANA LAW UPHELD

Bethel v. Fraser

- lewd speech by fraser at assembly -used dirty metaphors and such - suspended for speech w/innuendos and sexual references FRASER'S SPEECH FOUND UNPROTECTED "The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission." - Burger

Healy v. James

- students at central Connecticut state university - students for a democratic society -The Student Affairs Committee recommended recognition, but President James denied recognition because he was not convinced that the local chapter would be independent of the national SDS, which he concluded had a philosophy of disruption and violence -Students went to court -RELIEF GRANTED -"The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent. " - Powell

Tinker v. Des Moines (landmark)

- students wore banned (by policy) black armbands to school - no evidence classes were disrupted -STUDENT SPEECH FOUND PROTECTED " It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" - Fortas "Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained." - Fortas NO PROOF OF DISRUPTION "our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would [1] substantially interfere with the work of the school or [2] impinge upon the rights of other students." - Fortas

speech plus

- term made by the courts the describes the distinction between "pure speech" and speech conjoined with conduct -basic tenant - speech plus (conduct) may cause the expression involved to receive less protection under the first amendment

braun v. flynt

-DISTORTION - article in chic on ralph the swimming pig - painted the park as mistreating/threatening the pig Aquarena staff members say the pig was incredibly easy to train. They told him to learn quick, or grow up to be a juicy ham sandwich." - trainer pictured with unflattering stories DECISION TO BRAUN the publication of Mrs. Braun's picture in the 'Chic Thrills' section of the magazine was fully capable of conveying a false impression of Mrs. Braun. Similarly we are unpersuaded by Chic's argument that no reasonable person would find the publication of Mrs. Braun's picture in that context to be both false and highly offensive." --Fifth Circuit Court of Appeals

fault/negligence

-Negligence; lack of care • An improper act or omission, injurious to another, and transpiring through negligence, rashness, or ignorance • Auto example: Accident Carelessness Intentional

Schenck v. United States (landmark Case)

-Schenck - general secretary of socialist party - mailed leaflets against draft to americans that were drafted -prosecuted - espionage act - convicted 15 yrs in prison CONVICTION UPHELD "But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." --Justice Oliver Wendell Holmes, Jr.

central hudson test

1) commercial speech must be legal and not misleading 2) is gov interest substantial? 3) does regulation advance gov interest? 4) reasonable fit

fighting words

1) words which by their utterance inflict injury 2) words which tend to incite an immediate breach of the peace

Booth Rule

1. Appropriation does not apply to coverage of newsworthy events or political figures 2. The Booth Rule creates an exception for promotional materials Shirley Booth's photo appeared in an article appearing in Holiday Magazine in February 1959 A court allowed Holiday to use the Booth photo in an ad for the magazine that appeared in the New Yorker and Advertising Age in June 1959 Key passage: "So long as the reproduction was used to illustrate the quality and content of the periodical in which it original appeared," such promotional use is permissible

gannett v. depasquale

2 suspects allegedly killed policemen - want to close pre trial - judge granted SUPREME COURT UPHELD DECISION RIGHT OF ACCESS TO CRIMINAL TRIALS NOT IN CONSTITUTION

redrup v. new york

3 into one - similarity - redrup - newsstand clerk sold 2 pulp sex novels - "soft core porn" convicted - CONVICTION OVERTURNED - not obscene * led to a series of "girlie mags" being dismissed

nebraska press association v. stuart

6 members of kellie family murdered simants arrested rumors spread he confessed gag order put out nebraska press challenged order - trial continued GAG ORDER UNCONSTITUTIONAL three new trials - simants eventually found insane

carson v. here's johnny portable toilets

APPROPRIATION -johnny carson "here's johnny" used in toilet ads - DECISION TO CARSON "The right of publicity has developed to protect the commercial interest of celebrities in their identities"

Disruption Test

AS IN TINKER - speech must - [1] substantially interfere with the work of the school or [2] impinge upon the rights of other students." - Fortas

Chapter 14

Access

Speech and Debate Clause (Article 1, Section 6) U.S. Constitution (Speech and Debate Clause)

Article I, Section 6 "The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." • The Supreme Court never ruled on the constitutionality of the Alien and Sedition Acts of 1798 • To the Federalists, it appeared that the First Amendment might mean nothing more than the absence of prior restraint (Blackstone's view) • The Republicans argued against the Sedition Act of 1798, but it is not clear that they opposed the regulation of speech by state legislatures • The Speech and Debate Clause of the Constitution (1787) protects the speech rights of members of both Houses of Congress

Dennis v. United States

BAD TENDENCY LIVES • In July 1948, Dennis and ten members of the Central Committee of the Communist Party were indicted in New York • None of the defendants had openly called for violence or actively conspired to overthrow the government • The prosecution relied on historical statements from Karl Marx and other revolutionaries • After a trial of six months, all of the defendants were convicted for violating sections 2 and 3 of the Smith Act • Sentenced to five years in prison and fined $5,000 CONVICTION UPHELD "If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited." --Chief Justice Fred Vinson JUSTICE BLACK IN DISSENT "There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties" - Black

davis v. massachusetts

Boston be like no speech on public grounds - davis - a minister arrested for speaking on public grounds CONVICTION UPHELD

cox broadcasting v. cohen

CONSTITUTIONAL DEFENSE - Rape victim identity published in newspaper LAWSUIT DISMISSED "whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records- more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. We are convinced that the State may not do so." --Justice Byron White PROTECTED< BUT ETHICAL?

cameron v. johnson

COURTHOUSE NOT PUBLIC FORUM

hustler magazine v. falwell (landmark case)

Campari - drink company - "first time" advertisements - parody of stuffy dudes (falwell) first time being with mom in shed or some shit - sued for appropriation defamation intentional infliction of emotional distress DECISION TO FALWELL NO ACTUAL MALICE "We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e.,

spahn v. julian messner

DISTORTION - biography written on spahn - baseball player • The biography included dramatizations, distorted chronologies, and invented dialogues • Example: The book erroneously claimed Spahn had received a Bronze Start for bravery during World War II DECISION TO SPAHN "The present case deals neither with public officials nor official conduct. The free speech which is encouraged and essential to the operation of a healthy government is something quite different from an individual's attempt to enjoin the publication of a fictitious biography of him. No public interest is served by protecting the dissemination of the latter. We perceive no constitutional infirmities in this respect." --Judge Keating of the Court of Appeals of New York

jamison v. texas

Dallas ordinance - no dissemination of info - jehovah's witness convicted of distribution of leaflets - DALLAS ORDINANCE UNCONSTITUTIONAL - relied on Davis - overturned hague

collin v smith

Collin - nazi - planned to march through jewish neighborhood - skokie - skokie adopted 3 ordinances against them ALL THREE ORDINANCES FOUND UNCONSTITUTIONAL 1)uniforms 2)dissemination 3) insurance requirement

Chapter 13

Copyright

epperson v. arkansas

DARWINISM - Epperson- biology teacher callings "anti evolution law - arkansas supreme court uphold the "monkey law" but the U.S. supreme court find it unconstitutional - TRIES TO BLOCK OUT A THEORY BECAUSE IT GOES AGAINST THE BIBLE - GOES AGAINST 1st and 14th AMENDMENT

consent

DEFENSE IN PRIVACY CASE - getting someone's permission to do things • Three issues relating to consent: 1) The burden of proving consent is on the defendant 2) The consent must be as broad as the invasion that follows 3) Substantial alterations to a photograph can invalidate a consent agreement CONSENT NOT REQUIRED • Non-recognizable individuals in public • Public figures in public places • Crowds at events (e.g. fans at a baseball game or an audience at a concert)

newsworthiness and public interest

DEFENSE IN PRIVACY CASES 1. Appropriation does not apply to coverage of newsworthy events or political figures 2. things that the public would benefit from hearing ALMOST ANY INFO ABOUT A WELL KNOWN PUBLIC FIGURE OR PUBLIC OFFICIAL WILL BE CONSIDERED NEWSWORTHY ESP. INVOLVEMENT IN CRIMINAL BEHAVIOR

Chapter 4

Defamation

estes v. texas

Estes - friends with LBJ - indicted by grand jury - fraud - massive pre trial publicity - live coverage prohibited - opening and closing covered along w/ verdict SUPREME COURT ORDERS NEW TRIAL - 1) cameras are distracting/prevent fair trial 2) technology rules may change in future

First Amendment Defense

FAIR USE TRANSFORMATIVE USE

time v. hill

FICTIONALIZATION - family held hostage - -novel published - book made into play - hill claimed article gave false impression that play was an accurate depiction of real incident JUDGEMENT REVERSED in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." --Justice William Brennan

gill v. curtis publishing vo./gill v. hearst publishing co.

Photo of couple at ice cream bar - painted in false light and published with articles FALSE LIGHT

Direct Infringement

Plaintiff must prove -- 1) that the alleged infringer copied from plaintiff's work, and 2) that, if copying is proved, it was so "material" or substantial as to constitute an unlawful appropriation

Vicarious Liability

Plaintiff must prove -- 1) that the defendant has the right or ability to control the infringer's activity and 2) derives financial benefit from the infringement

new york v. ferber

Ferber convicted of selling films of children masturbating - films were found non obscene - still child pornography - CONVICTED - CHILD PORNOGRAPHY UNPROTECTED

Contributory Infringement

Plaintiff must prove -- 1) that the defendant knew of the infringing activity and 2) materially contributed to the infringement of a valid copyright

burden of proof

Plaintiff's burdens 1) Publication 2) Identification 3) Defamation 4) Fault (standard established in New York Times v. Sullivan (1964)

Bill of Rights First Amendment

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." (5 freedoms; 45 words)

Chapter 2

Freedom of Speech in America to World War I

Chapter 1

Freedom of Speech: The English Heritage

Access

IMPORTANCE "A popular government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both." - Madison ABOUT • Without access, there is nothing to talk about and there is no place to speak • Although access is essential for democratic government, the Supreme Court has consistently held there is no constitutional right of access • Congress has created a statutory right of access to some government records, but the statutes allow for government secrecy

Yates v. United States (landmark case)

INCREASING THE GOVERNMENT"S BURDEN OF PROOF Yates - communist party - charged w/ conspiracy under smith act -by teaching the necessity of the forcible overthrow of the government • Poor jury instructions meant Yates could be found guilty for advocating ideas or for advocating illegal action - convicted + ten years in prison CONVICTION OVERTURNED (Warren Court) "The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court . . ." --Justice John Marshall Harlan (II)

Chapter 12

Institutional Constraints - Freedom of Speech in Schools

Virginia Resolution of 1798

JAMES MADISON "That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, 'the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States . . .'"

chaplinksky v. new hampshire (landmark case)

Jehovah's witness - distributed material on street - after disturbance - he is being brought to police station - sees city marshall - yells epithets - convicted of breach of peace CONVICTION UPHELD

Milton's Areopagitica

John Milton "Let her and falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?" --Areopagitica (1644)

Mill's On Liberty

John Stuart Mill "If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person that he, if he had the power, would be justified in silencing mankind." --On Liberty (1859)

edwards v. south carolina

OK TO PROTEST IN AN OPEN AREA ON THE GROUNDS OF SC CAPITAL

kingsley international pictures v. regents (landmark case)

Lady chatterley's lover - movie banned on grounds of immoral ideas - it would "corrupt morals - portrayed sexual immorality as desirable or acceptable" Supreme Court reversed - FILM LICENSED - the first amendment does not only protect ideas that are conventional/ shared by majority

copyright

Licensing & Copyright - all printers had to register their presses with the stationer's company - all printing done in london, cambridge, or oxford -# of printing apprentices limited and the appointment of master printers required official permission - wardens authorized to search for and seize unlawful books and presses THE END OF LICENSING • English press licensed for 156 years starting in 1538 • Widespread opposition to licensing (including Milton's Areopagitica) • Licensing dies when Parliament refuses to renew the Printing Act in 1694

greer v. spock

MILITARY BASES NON PUBLIC FORUM

Effect of the use upon the potential market (fair use)

MOST IMPORTANT FACTOR • The effect of the use upon the potential market for or value of the copyrighted work (effect is the most important factor)

united states v. marchetti

Marchetti - CIA agent - broke secrecy agreement - published book with out pre screening from CIA - in the end marchetti agrees to pre review and releases censored book with missing pages and bolded challenged text

fabricated quotation

Masson v. New Yorker Made up quotes from interview

doe v. michigan

Michigan state speech code - no discussion of race gender etc. - john doe says this is over broad - prevents educational discussion- michigan code found UNCONSTITUTIONAL

miller v. california (landmark case)

Miller - sexual mail order business - unsolicited brochure sent to restaurant in Newport Beach - dude and mom found it - at the trial the jury was told to evaluate it at state not national standards - OBSCENITY UNPROTECTED - *miller test* - court vacated miller's conviction and remanded his care to the california superior court

boos v. barry

NO DISRESPECTFUL SIGNS WITHIN 500 FT OF AN EMBASSY

international society for krishna consciousness v. lee

NO SOLICITATION IN AIRPORTS - NON PUBLIC FORUM

fair use

ORIGINS • American courts gradually recognized a limited right to make fair use of copyrighted material • The fair use doctrine was codified by Congress in the Copyright Act of 1976 • According to Section 107, "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news, reporting, teaching (including multiple for classroom use), scholarship, or research, is not an infringement of copyright" • The Act then sets out four factors derived from American case law that must be used when making a fair use determination FOUR FACTORS • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; • The nature of the copyrighted work; • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and • The effect of the use upon the potential market for or value of the copyrighted work (effect is the most important factor)

Nature of the copyrighted work (fair use)

One of the four factors of fair use • The nature of the copyrighted work

irvin v. dowd

PRETRIAL PUBLICITY irvin arrested + charged with murder - pre trial publicity - change of venue - only to neighboring county S. C. RULED FOR NEW TRIAL - fair trial CONVICTED

mutual film corporation v. industrial film commission of ohio

PRIOR RESTRAINT ON FILMS OK - ohio laws - films prescreened and approved - must be mutual film challenged on grounds 1)restricted interstate commerce 2) no clear standards for evaluation 3) violated ohio constitution and 1st amendment MOVIES UNPROTECTED

political speech

PROTECTED "The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions." --Justice William Brennan (minus seditious libel)

central hudson gas and electric v. public service commission

PSC SAID - no ads for electricity - after energy shortage ended c.h. challenged the order - did not pass c.h. test - PROHIBITION UNCONSTITUTIONAL - ban was more extensive than necessary for state interest - even forbade energy conservation ads

Chapter 3

Political Heresy: Sedition in the U.S. Since 1917

categorical approach/two - tier theory

Protected -most obscenity - profanity - half libel - most fighting words Unprotected - child pornography -most "true threats" - false ads

renton v. playtime theaters

Renton ordinance prohibited adult theaters w/i 1,000 ft of a school, park, church, or residential area - playtime theaters bought 2 properties downtown - RENTON ORDINANCE UPHELD- ok to ban too many establishments

graynard v. rockford

Rockford antippicketing law w/i 150 ft of school - no noise - 200 people gathered outside rockford school - protesting all white cheerleading squad - arrested grained and 40 protestors - supreme court overturned anti picketing laws - upheld anti noise

roth v. united states (landmark case)

Roth - publisher of Ulysses & lady chatterley and erotic magazines - convicted of circulating erotic material - CONVICTION UPHELD - Obscenity not protected - no redeeming social importance ROTH TEST - whether the average person would find the material AS A WHOLE appeals to prurient interest

ward v. illinois

S&M mags - ward challenged on grounds that s & m were not defined as obscene - his conviction was upheld - abandoning specific definition requirement

regina v. hicklin

Scott wrote pamphlet on questions posed to women in confessionals - under hicklin rule - he was convicted and his booklet was destroyed (one part obscene, whole thing obscene)

snepp v. united states

Snepp - other CIA agent - signed publication agreement - broke it and published book - CIA seized his royalties - secrecy agreement upheld "reasonable restrictions"

snyder v. phelps

Snyder - corporal - killed in iraq - westboro baptist church protested at funeral • Albert Snyder sued Phelps and the Westboro Baptist Church for (1) defamation, (2) intrusion upon seclusion, and the (3) intentional infliction of emotional distress (among other things) WESTBORO'S SPEECH PROTECTED "What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous." —Chief Justice Roberts MATTER OF PUBLIC CONCERN

REP. SONO BONO

Sonny Bono was elected Mayor of Palm Springs in 1988 • Defeated in a Senate bid in 1992, Bono was elected to Congress in 1994 to represent California's 44th District • Bono one of the co-sponsors of a bill nicknamed the "Mickey Mouse Protection Act" • Before the bill was adopted, Bono died in a tragic 1998 skiing accident (shortly after the death of Michael Kennedy) LEGACY "Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution . . . . As you know, there is also Jack Valenti's [President of the Motion Picture Association of America] proposal for the term to last forever less one day. Perhaps the Committee may look at that next Congress." --Rep. Mary Bono

r.a.v. v. st. paul

St paul ordinance - no burning of symbolic things - rag burned cross in yard of black family who had moved into their white neighborhood - CONVICTION OVERTURNED - Ordinance over broad - Content discrimination

valentine v. chrestensen

Submarine!! chrestensen handed out ads with prices - not allowed only "info" or political" then gave out new ads with letter to public on the back - DECISION TO VALENTINE COMMERCIAL SPEECH NOT PROTECTED

Watts v. United States

THREATENING SPEECH - anti war rally - watts threatened to shoot LBJ • According to an Army counteringelligence agent, Watts said "If they ever make me carry a rifle, the first man I want to get in my sight is L.B.J." - arrested and convicted for knowingly and willingly threatening the life of the president DECISION - HIS SPEECH WAS PROTECTED - NO TRUE THREAT • The Threat Against the President Act is constitutional • Watts speech is worthy of First Amendment protection "But whatever the 'willfullness' requirement implies, the statute initially requires the Government to prove a true 'threat.' We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term." --Per curiam

dietemann v. time

TRESPASSING Dietemann - practicing medicine w/o license • Life Magazine entered into an arrangement with the LA County District Attorney whereby a reporter and photographer would visit Dietemann's office and document his activities • Using the name of another patient as a pretext, the journalists entered Dietemann's home and sought help for a lump on the reporter's breast • Dietemann diagnosed the lump as a result of eating rancid butter (11 years, 9 months, and 7 days before the visit) • Dietemann was convicted of practicing medicine without a license, but he successfully sued Time/Life for intrusion Decision to Dietemann "Investigative reporting is an ancient art; its successful practice long antecedes the invention of miniature cameras and electronic devices. The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of DECISION TO DIETEMANN "The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of news gathering."

constitutional defense (privacy)

TRUTH IS NOT GENERALLY RECOGNIZED AS A DEFENSE IN PRIVACY LAWSUITS • The Constitution does not guarantee a right or privacy (in fact, the word privacy does not appear in the text of the document or the amendments) • The Constitution is about the powers of the government; the Bill of Rights sets out specific limitations on those powers • Over the years, Supreme Court decisions have recognized privacy as a basic human right • The Supreme Court has provided a constitutional defense in two specific areas concerning invasion of privacy: 1) In Time v. Hill (1967), the Court held that the First Amendment required plaintiffs bringing a false-light privacy involving a subject of general public interest to demonstrate "actual malice" 2) In Cox Broadcasting v. Cohn (1975), the Court held that the First Amendment protects fair and accurate accounts of information obtained from public records

public figure

TWO TYPES [1] an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. (all purpose) - obama [2] More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. (limited purpose) - chesley sullenberger (pilot of river landing)

Establishment Clause

The First Amendment on religion: "Congress shall make no law respecting an establishment of religion" *Also - "Separation of church and state"

"more speech" (Brandeis' concurrence in Whitney)

The preferred remedy for bad speech: More speech "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." --Justice Louis Brandeis (concurring)

united states v. one book called "ulysses"

Two publishers convicted for obscenity for publishing ulysses- random house called for a test - judge woolsey held the book was NOT OBSCENE " so long, written with such truth, and so little erotic as a result " it is not obscene

ginsberg v. new york

VARIABLE OBSCENITY Ginsberg and wife owned luncheonette - ginsberg sold girlie magazines to minors CONVICTION UPHELD 1) PARENTAL AUTHORITY 2)PROTECTING CHILDREN * legacy - gov can prohibit children from accessing sexual media gov CANNOT limit adult population to reading kid's material

Whitney v. California (landmark case)

Whitney - Wellesley College grad - later became suffragist & political radical - convicted under california criminal sydicalism statute - established communist labor party -CONVICTION UPHELD • The Supreme Court unanimously sustained Whitney's conviction • Justice Sanford argued Whitney's party membership held the potential for "joint action" and was therefore a "greater danger to the public peace and security" than if she acted alone to advocate the teachings of communism • Since Whitney had not argued her speech did not pose a clear and present danger, Justices Brandeis and Holmes filed a concurring (dissenting?) opinion "The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind." - Brandeis

Blackstone's Commentaries on the Laws of England

William Blackstone "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal mater when published." --Commentaries (1765-69) • 1765-1769: Blackstone's Commentaries on the Laws of England defines free speech as the absence of prior restraint

gooding v. wilson

Wilson and other activists block entrance to military recruiting station in atlanta - told officer in scuffle "i'll kill you" arrested - breach of peace - abusive language - conviction overturned not - likely to be violent

ginzburg v. united states

Z NAUGHTIEST MAIL ginzburg indicted for distributing obscene literature through the mail *the WORKS might not have been obscene but MAIL stressed prurient interest - Eros magazine - CONVICTION UPHELD each publication made for prurient interest

Patent and Copyright Clause

[The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" --Article 1, Section 8, Clause 8

deceptive advertising

a representation, omission, or practice that is likely to mislead the consumer - reasonable consumer

adderley v. florida

adderley and 31 others convicted for protest on jail property CONVICTION UPHELD

admonition

admonish the jury - tell them they cannot go outside or get outside info from anywhere - and cannot discuss case

pandering

advertising materials to appeal to erotic interest

canon 35

after media circus and linburgh baby trial - banned cameras and footage of court proceedings

Blasphemous libel

against god

Private Libel

against specific people

Seditious Libel

against the government

branzburg v. hayes

branzburg - witnessed people making and using hash caldwell - interviews w/ back panthers pappas - reported on B.P. from HQ all three were called to testify - declined - held in contempt of court no constitutional privilege for news people to withhold testimony concurring (Dissenting)? case by case powell 0 3 prong test relevance, alt. means, compelling interest

child pornography

any minor or juvenile (under 18) in simulated or real sexual performance - involved in sexual activity

heckler's veto

argument in feiner - if the police can silence the speaker - the law acknowledges a veto power in heckler's if they are hostile enough they can get the law to silence any speaker of whom they do not approve

bates v state bar of arizona

arizona said - no attorney ads - bates became an attorney and advertised practice - resulted in disciplinary hearing - ads for professional services PROTECTED

gentile v. state bar of nevada

attorney insulted cops after client was indicted - reprimanded under rule banning extra judicial statement that could prejudice an adjudicate proceeding reprimand reversed - vague regulation of attorney's speech is limited

punitive damages

awarded to punish an or deter future misconduct

44 liquormart v. rhode island liquor stores association

ban on ads displaying $$ of alcohol - 44 liquor mart published ads with WOW! next to drinks - taken to mean low prices - did not pass 4th prong of c.h. test - FINE - alternative forms of regulation better ways to decrease liquor consumption

prejudicial publicity

before the trial - tons of media - facts on case and people - can destroy chance of fair impartial trial/ jury

change of venue

change location of trial in order to get a fair trial

richmond newspapers v. virginia (landmark case)

closed trials not okay unless last resort

bantam books v. sullivan

commission in RI protecting youth - no books etc containing obscene/ immoral material (the commission went store to store) bantam books argued that the commission was extra legal censorship - RI law UNCONSTITUTIONAL - commission too vague

specific/ actual damages

compensatory damages

chapter 11

constraints of time, place, and manner

secondary effects

decline in quality of life associated with too many adult establishments in the area

continuance

delay of trial - in hope that news and publicity will die out be forgotten - however conflicts with "right to speedy trial"

immoral ideas

dissenting views concerning private morality

three - part public forum rule

don't step out cha bounds

united states v. washington post

ellsburg leaked pentagon papers here too PRIOR RESTRAINT STILL NOT COOL gov did not meet burden of proving prior restraint necessary

new york times v. united states

ellsburg leaked pentagon papers to NYT - who published them - gov tried to injunction to keep them from publishing more - PRIOR RESTRAINT UNJUSTIFIED "any system of prior restraint comes to the S.C. under heavy presumption against its constitutional validity"

fictionalization

exaggerating/ fictionalizing events

blasphemy

false doctrine/ irreverance

feiner v. new york

feiner- student who gave speech called mayor a bum, truman a bum etc. - angry crowd gathered - he was arrested - breach of peace - CONVICTION UPHELD - clear and present danger of riot

speech codes

for schools - true threats and harassment already against the law - "fighting words" in speech codes ok constitutionally would not reach most objectionable or offensive expression (limiting)

forsyth county georgia v. nationalist movement

forsyth county charged fee for supervision of demonstrations nationalist movement - declared march - $100 fee nationalists wouldn't pay - went to court ORDINANCE UNCONSTITUTIONAL

freedman v. maryland

freedman - bought theater and showed naught films - maryland law - films mist be approved by film board - freedman showed unapproved film - fined - appealed - maryland law lacked procedural safeguards - CONVICTION OVERTURNED FREEDMAN STANDARDS 1) burden of proof that film should be unprotected - on censor 2) censor will w/i certain time issue license or go to court to restrain film 3) prompt final judicial decision

fcc v. pacifica foundation

george carlin - filthy words - found obscene and censorable by fcc - 1) broadcasting is pervasive - hard to escape - 2) protecting children - broadcasting is uniquely accessible to kids LEGACY ccc can regulate indecent broadcasting only applies to broadcasting on public airwaves safe harbor - kids not likely to be present exempts - fleeting (accidental) expletives

alternative means test

gov. can't get info through alternate means

compelling interest test

gov. must demonstrate compelling and overriding interest in info

relevance test

gov. must show probable cause that newsman has relevant info

lovell v. griffin

griffin, GA - permission from city manager needed to distribute lit. -jehovah's disseminated anyway - the shits - convicted - GRIFFIN ORDINANCE UNCONSTITUTIONAL too much power to city manager

sheppard v. maxwell

handsome doctor - wife killed - claimed intruder killed wife- publicity - rumors spread of affairs and possible motives - arrested and charged with murder convicted on appeal (fair trial?) publicity - granted new trial - new trial - less publicity - sheppard found not guilty

fair trial

impartial jury - no presumptions of guilty or not guilty

cantwell v. Connecticut

jehovah's witnesses play anti catholic record in catholic neighborhood - arrested for 1) violating local ordinance - permit before soliciting funds 2) inciting a breach of peace - CONVICTION OVERTURNED - licensing unconstitutional - gave locals too much power over religious solicitation - --breach of peace reversed - left when crowd became agitated

shield laws

journalists privilege laws - protects reporters federal law unlikely - could not agree on def of journalist or extent of privilege many states adopted their own

erie v. pap's a.m.

kandyland - totally nude erotic dancing - violated eerie ordinance0 no nudity in public - dancers needed g string and pasties - pap's sought injunction - barring enforcement of ordinance - 1st amendment ORDINANCE UPHELD - secondary effects

sequestration

keeping jury together and hidden from outside influences

hague v. congress of industrial organizations (landmark case)

mayor - hague - iron fist -made ordinance - no meetings in public places - used davis as precedence - ORDINANCE UNCONSTITUTIONAL - cannot ban people from meeting in public - can regulate

near v minnesota (landmark case)

minnesota gag law - no malicious scandalous newspapers - saturday press triggered gag law - MINNESOTA LAW UNCONSTITUTIONAL - Legacy 1) prior restraint no unlimited - ok in extreme cases 2) post facto punishment permissible

near v. minnesota (landmark case)

minnesota gag law - no malicious scandalous newspapers - saturday press triggered gag law - MINNESOTA LAW UNCONSTITUTIONAL - Legacy 1) prior restraint no unlimited - ok in extreme cases 2) post facto punishment permissible

mishkin v. new york

mishkin prosecuted for 5 plus pull fetish porn books - his defense was "abnormal" sexual behavior CONVICTION UPHELD - Roth test fulfilled

civil libel

money / damages plaintiff v defendant

cincinnati v. discovery network

newsracks - banned - litter - failed 4th prong of c.h.- BAN ON FREE NEWSRACKS UNCONSTITUTIONAL

bigelow v virginia (landmark case)

no ads for abortion - virginia weekly advertised abortion services in NY - bigelow (editor) convicted - AD PROTECTED 0 "commercial activity no justification for narrowing protection of 1st amendment"

virginia state board of pharmacy v. virginia citizens consumer council

no drugs ads with prices - LAW FOUND UNCONSTITUTIONAL - "free enterprise economy" - allocation of resources will be made through numerous private economic decisions - product must be legal - ad must be truthful

gag order/protective order

no media articles/ speech on case - can be put on specific people - rare

board of trustees of the state university of new york v. fox

no tupperware in dorms - when tupperware dude was arrested he challenged on first amendment grounds - REVISED central hudson - RESTRICTION UNCONSTITUTIONAL

ohralik v. state bar association

ohralik "ambulance chaser" approached 2 accident victims - face to face solicitation - ruling - attorney ads can be regulated - "harmful" to public

sipple v. chronical publishing co.

oliver simple saved press was gay newspaper published article on him being gay ruined his life NEWSWORTHINESS APPLIED TO SIPPLE two reasons 1] to dispel the false public opinion that gays were timid, weak and unheroic figures and to raise [2] the equally important political question whether the President of the United States entertained a discriminatory attitude or bias against a minority group such as homosexuals." PRES SENT HIM LETTER

press enterprise v. superior court (I)/press enterprise v. superior court (II)

opening voir dire and pretrial hearings (i) jury selection (ii) mercy killing nurse

post facto punishment

opposite of prior restraint - not okay to prevent something from being published (usually) but okay to take action after it has been published

thomas v. chicago park district

parks real nice - district created ordinance - permit for groups of 50+ people - insurance nondiscriminatory - process permits in 28 days - appeals 14 days - windy city hemp development board claimed ordinance was unconstitutional- prior restraint ORDINANCE UPHELD - REASONABLE

pinkus v. united states

pinkus convicted for obscene mailings - judge told jury average person included children - supreme court reversed this decision - average person did not include kids - refers to adults

chandler v. florida

police officers - burglary - cameras in trial - police officers convicted - appealed cameras violated 6th amendment - conviction upheld - STATES MUST BE FREE TO EXPERIMENT F FEDERAL COURTS STILL CLOSED SUPREME COURT STILL CLOSED

public official

position of authority conferred by the state (police officers etc.)

chapter 9

prior restraint

chapter 5

privacy

chapter 7

provocation to anger and words that wound

non- public forum

public property not by tradition or designation a forum for public communication - no/ little 1st ammendment rights

limited purpose public forum

public property the state has opened for use for public expressive activity (state not required to keep it open) but when it is open/ same standards apply as type I forum

voir dire

questionnare for jury members prevents bias and protects impartiality

terminiello v. chicago

racist anti sematic priest gave speech to 800+ people protestors gathered outside fearing a riot - police arrest terminiello charging him with breaching the peace - convicted - CONVICTION REVERSED - grounds weren't stable

mills v. alabama

racist political dude- alabama bans political speech on election day - magazine published political article on election day they is convicted - SUPREME COURT - ELECTION DAY EDITORIALS ARE PROTECTED

cox broadcasting v. cohn (ch 5)

rape victim names

chapter 6

religio-moral heresy: from blasphemy to obscenity

zoning

requiring adult establishments be located specific distances from other things

sixth amendment

right to fair and speedy trial - public trial - impartial jury - in state and district where crime was committed

obscenity

sensual + erotic speech

Obscene Libel

sex

pornography

sexy stuff

invitation

someone is invited to crime scene Wilson v Layne no damages to police Since the case law was ambiguous, it would be "unfair to subject police to monetary damages for picking the losing side of the controversy" • Distinguishing ride-alongs (permissible) from invitations to enter crime scenes (impermissible)

private person

someone who is neither type of public figure or public official

chapter 10

special problems of a free press

sacrilegious speech

speech against god/religion

commercial speech

speech that advertises

richmond newspapers v. virginia (landmark case)

stevenson convicted of stabbing hotel manager after three trials gone bad, fourth was closed by judge richmond newspapers appealed this decision S.C. REQUIRES OPEN TRIALS "right to attend trials implicit in 1st amendment" - freedom of the press (gannett says pretrial hearings can be closed) - trials can be closed if pre trial publicity will cause problems "last resort"

prior restraint

stopping a message before it is communicated

pentagon papers

study commissioned by u.s. on involvement in vietnam - 1+ year to compile results - 3,000 page analysis daniel ellsburg secretly made and distributed copies

miller test

test for obscenity 1) whether the average person would find work as a whole applies to prurient interest 2) whether the work depicts/ describes in an offensive way, sexual conduct specifically defined by state law 3) SLAPS test - does the work lack serious literary, artistic, political or scientific value?

quintessential ("all purpose") public forum

traditionally available places to gather and debate - gov. can interfere only a little

hicklin test

under hecklin rule - something is obscene if any part of it was objectionable "to corrupt those whose minds are open to such immoral influence and into whose hands a publication of this sort might fall"

"heavy presumption"

there is a "heavy presumption" against constitutionality of prior restraint - it is usually not allowed

time, place and manner restrictions

time place and manner restrictions on communications

virginia v. black

virginia law - intent to intimidate by burning cross = bad - elliot - tried to burn cross in yard - UPHELD - intent Black - burned cross - highway - OVERTURNED - no specific intent INTENT CLAUSE FOUND UNCONSTITUTIONAL

publication

was it published?

variable obscenity

when something non obscene becomes obscene when accessible to minors

compatible use rule

whether manner of expression is basically compatible with the normal activity of a particular place at a particular time - incompatible *grounds of jail *gov. property *military bases

group libel

whole group is targeted by libel • The key question in group libel cases is whether a statement about a group can be reasonably interpreted to refer to a specific person • Several lower court cases suggest that individuals in a group with more than 25 members will have difficulty proving defamation

linmark associates v town of willing boro

willingboro ordinance against real estate signs - "blockbusting" - SIGNS PROTECTED

epithets

words that negatively connotate a type of person "dyke, fag, cracker, ****, gook etc" NOT protected

injury

words were defamatory if they "tend to injure a person libeled by them in his reputation, profession, trade, or business"

Sonny Bono Copyright Term Extension Act

• Extended the term of copyright for new works from 50 years to the life of the author plus 70 years • Extended the term for new works by corporate authors from 75 to 95 years • Extended the term for works created prior to 1978 by 20 years • BOTTOM LINE: Under the CTEA, no copyrighted works made in 1923 or afterwards that were still protected in 1988 will enter the public domain until 2019

slander

— Slander (historically the spoken word)

Eldred v. Ashcroft

• A Harvard graduate, Eldred worked in the computer industry • Later created Eldritch Press, a website that posted the works of others which had passed into the public domain • Became the lead plaintiff in a lawsuit challenging the Copyright Term Extension Act Under the terms of the Copyright Term Extension Act, copyrighted works that would have passed into the public domain were protected for another 20 years • Eldred and the other plaintiffs sued on the grounds that 1) the retroactive extension violated the copyright clause ("limited times") and that 2) the extension violated the First Amendment CONGRESS HAS THE POWER TO EXTEND COPYRIGHTS "In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA--which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes -- is an impermissible exercise of Congress' power under the Copyright Clause." --Justice Ginsburg in Eldred EXTENSION CONSISTENT WITH FIRST AMENDMENT 'The Framers intended copyright itself to be the engine of free expression."

Lamb's Chapel v. Center Moriches Union Free School District

• A New York law authorized local school boards to adopt reasonable regulations permitting the after school use of school facilities for 10 specific purposes (including meetings for religious purposes) • The Center Moriches Union School District repeatedly denied requests by Lamb's Chapel to use school facilities for a religious- oriented film series ("Turn Your Heart Toward Home" was produced by James C. Dobson's Focus on the Family Ministry) • Lamb's Chapel sued on the grounds that the decision violated the First Amendment's Freedom of Speech Clause LAMB'S CHAPEL PREVAILS " Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental." - White

Garcetti v. Cellabos

• A criminal defense attorney alerted Richard Ceballos, a LA County Deputy DA, to inaccuracies in an affidavit used by a sheriff to obtain a search warrant • Ceballos investigated the allegation, determined that serious representations had been made, and recommended that the case be dropped • When the DA's office decided to pursue the case anyway, Ceballos shared his findings with the defense and was subpoenaed as a witness • After he testified, Ceballos was reassigned and he sought legal redress against the DA, Gil Garcetti (right) GARCETTI PREVAILS "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." --Justice Anthony Kennedy

Religio Moral Heresy

• About heresy: dissent or deviation from a dominant theory, opinion, or practice; an opinion, doctrine, or practice contrary to the truth or to generally accepted belief or standards • Common forms of heresy: 1) Blasphemy (false doctrine and irreverence) 2) Darwinism (scientific information and opinion) 3) Immoral ideas (dissenting views concerning private morality) 4) Obscenity (sensual and erotic speech)

monitor patriot v. roy

• Alphonse Roy was elected to Congress (New Hampshire's first district) in 1938; but he lost his bid for reelection in 1939 • In 1960, Roy unsuccessfully sought the Democratic nomination for United States Senator • On the eve of the Democratic primary, the Concord Monitor denounced the candidate as a "former small-time bootlegger" • The jury instructions held public figures (like Roy) could recover damages if the defamatory speech dealt with a "private matter" • After losing the election, Roy sued the paper for defamation and won a $20,000 jury verdict JUDGEMENT REVERSED SULLIVAN INCLUDES DISCUSSION OF PRIVATE MATTERS "The principal activity of a candidate in our political system, his 'office,' so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him." Any test adequate to safeguard First Amendment guarantees in this area must go far beyond the customary meaning of the phrase 'official conduct.'" --Justice Potter Stewart

TRUE THREATS THOUGH

• Although the holding was clear, the Supreme Court offered no guidance for distinguishing unprotected threats from passionate criticism, tasteless humor, or other forms of harassment • When is a threat a "true threat"? — Intent standard (did speaker intend to harm) — Reasonable person standard (would a third party find the threat credible) — Effect on target standard (would the named party perceive a threat)

appropriation

• Appropriation involves the use of a person's name or likeness, or other highly personal material, without permission • To recover, must demonstrate 1) the person's name, portrait or picture was used, 2) for purposes of trade or advertising, 3) without the person's consent. DOES NOT COVER NEWSWORTHY EVENTS OR POLITICAL FIGURES

gertz v. welch (landmark case)

• Attorney Elmer Gertz was hired to represent the family of a man murdered by a Chicago policeman • American Opinion denounced Gertz as a "Leninist" and a "Communist frontier" and claimed he was part of a conspiracy to discredit local police departments • Gertz successfully sued publisher Robert Welch for defamation PUBLIC FIGURES v. PRIVATE PERSONS . Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy - powell GERTZ WAS NEITHR STATES FREE TO SET THE PRIVATE PERSON STANDARD FOR FAULT "We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. - powell MINIMUM STANDARD FOR PRIVATE PERSON IS NEGLIGENCE IF STATE OPTS FOR THIS DAMAGES LIMITED TO ACTUAL INJURY "the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury." --Justice Lewis F. Powell, Jr • Gertz was not an all-purpose public figure • Gertz did "did not thrust himself into the vortex" and was not a limited-purpose public figure • As a private person, Gertz did not need to prove "actual malice" • The Court ordered a new trial, however, as the jury had awarded punitive damages (not permissible under a negligence standard) • The jury at the second trial found in favor of Gertz

Widmar v. Vincent

• Cornerstone, an organization of evangelical Christian students, was a recognized student group at the University of Missouri at Kansas City from 1973 to 1977 • In 1977, UMKC informed Cornerstone that it could no longer meet on campus because of a new policy which banned the use of university facilities for "purposes of religious worship or religious teaching" • Student members of Cornerstone challenged the policy in federal court on First Amendment grounds CORNERSTONE PREVAILS "The University has opened its facilities for use by student groups, and the question is whether it can now exclude groups because of the content of their speech." - Powell

defamation

• Damage to the esteem or social standing in which one is held • Damage through ridicule • Damage through words imputing disease or mental illness • Damaging one in her occupation, trade, or profession • Damage to a corporation's integrity, credit, or ability to carry on business

beauharnais v. illinois

• During and after World War II, some states adopted group libel statutes • Illinois law prohibited messages portraying "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion" • Joseph Beauharnais, president of the White Circle League, was convicted of violating the group libel law and fined $200 CONVICTION UPHELD "But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group," - Frankfurter NEVER BEEN SPECIFICALLY OVERRULED • The key question in group libel cases is whether a statement about a group can be reasonably interpreted to refer to a specific person • Several lower court cases suggest that individuals in a group with more than 25 members will have difficulty proving defamation

"clear and present danger" test

• English Common Law allowed the suppression of speech that had a "bad tendency" • Viewed in this context, the "clear and present danger" test has the potential to protect more speech * must wait until a real danger can be identified (schenck v. us)

associated press v. walker

• General Edwin Walker commanded troops in World War II and Korea; later implemented Eisenhower's order to desegregate Central High School in Little Rock • Walker sued the Associated Press for a story claiming he had "led a charge of students against federal marshals" and that he had "assumed command of the crowd" protesting the court-ordered integration of the University of Mississippi in 1962 • Walker loses because the court finds the errors in the story were innocent mistakes (and not malicious acts) made under deadline pressure

Harper & Row Publishers v. Nation Enterprises (landmark)

• Gerald Ford had licensed his memoirs, A Time to Heal, to Harper & Row which had in turn contracted to allow Time Magazine to print an excerpt • Without permission, The Nation published an article using 300 to 400 words from the memoirs (500+ pages) in which Ford described his decision to pardon Richard Nixon • Once the excerpt was published, Time Magazine withdrew from its contract with Harper & Row • In turn, Harper & Row sued The Nation for copyright infringement • Among its defenses, The Nation asserted a fair use defense PURPOSE AND CHARACTER The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." --Justice Sandra Day O'Connor NATURE OF COPYRIGHTED WORK -"The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy." --Justice Sandra Day O'Connor AMOUNT AND SUBSTANTIALITY [The] Nation took what was essentially the heart of the book.'" ---Justice Sandra Day O'Connor EFFECT ON THE MARKET "This last factor is undoubtedly the single most important element of fair use. . . . Rarely will a case of copyright infringement present such clear-cut evidence of actual damage. " - O'Connor SUMMARY - NOT FAIR USE *Purpose and character of the use Favors Harper & Row (for profit) *Nature of the copyrighted work Favors The Nation (factual work) *Amount and substantiality Favors Harper & Row ("heart of the book") *Effect on the potential market Favors Harper & Row ("clear-cut evidence")

philadelphia newspapers v. hepps

• Hepps sued the Philadelphia Inquirer for defamation after the paper printed a series of stories alleging that Thrifty Stores had a connection to organized crime and had interfered with state liquor board proceedings • The defendant bore the burden of proving truth in defamation actions under Pennsylvania law • The jury found in favor of Hepps ((the paper could not prove the story was true) and Philadelphia Newspapers appealed to the Supreme Court JUDGEMENT OVERTURNED " a private- figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant." --Justice Sandra Day O'Connor

united states v. o'brien

• In 1965, Congress amended the Universal Military Training and Service Act to prohibit the destruction of "draft cards" or registration certificates • John David O'Brien and three companions burned their draft cards on the steps of the South Boston Courthouse in front of a crowd that included several FBI agents -arrested SPEECH PLUS RECEIVES LESS PROTECTION "This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms" - Warren THE O'BRIEN TEST "Whatever imprecision inheres in these terms, [1] we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. -Warren

Freedom of Information Act

• In 1966 the Congress passed the Freedom of Information Act in an effort to provide access to government records • The FIOA only applies to federal agencies; it does not cover state and local governments (or to Congress or the courts) • Not every government document is available under the FOIA for the law specifically exempts nine types of materials from disclosure THERE ARE EXEMPTIONS FOIA* bush - gov. may with hold info on any sound legal basis obama - in the face of doubt, openness prevails

Sunshine Laws

• In 1976, Congress enacted an open-meetings law requiring agencies subject to FOIA to open their meetings to the public • Exemptions to public access are similar to those provided by FOIA and include national security, unwarranted invasion of privacy, etc. • Many states have their own sunshine laws

CBS v. Federal Communications Commission

• In October 1979, the three major networks rejected a request from the Carter-Mondale Presidential Committee to purchase 30 minutes of airtime • The networks claimed it was too early to declare the 1980 campaign underway • The Democrats complained to the FCC which sided in their favor • When the lower court agreed with the FCC, the networks appealed to the Supreme Court EQUAL OPPORTUNITIES RULE UPHELD "Petitioners are correct that the Court has never approved a general right of access to the media. Nor do we do so today. Section 312 (a)(7) creates a limited right to "reasonable" access that pertains only to legally qualified federal candidates and may be invoked by them only for the purpose of advancing their candidacies once a campaign has commenced. " --Chief Justice Warren Burger

st. amant v. thompson

• In a televised speech, candidate Phil St. Amant suggested an improper relationship between the president of the local teamsters union (E.G. Partin) and his opponent, Deputy Sheriff Herman Thompson • After the election, Thompson sued for defamation claiming the speech had imputed "gross misconduct" and "infer[red] conduct of a nefarious nature" • The jury found for Thompson and awarded $5,000 in damages JUDGEMENT OVERTURNED (DEFENDANT BELIEVED CHARGE) . There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. - white

united states v. eichman

• In response to the Johnson decision, Congress adopted the Flag Protection Act of 1989 • The statute provided for a fine and a prison sentence for up to one year for whoever "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States" • Shawn Eichman, Dave Blalock and Dred Scott burned a flag on the steps of the United States Capitol to challenge the law CONVICTION REVERSED FLAG PROTECTION ACT UNCONSTITUTIONAL "Although Congress cast the Flag Protection Act in somewhat broader terms that the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its likely communicative impact." - Brennan

National Broadcasting v. United States

• In the late 1930s, the FCC decided that the national radio networks were not in the public interest • Lacking regulatory authority over the networks, the FCC issued "Chain Broadcasting Regulations" that prohibited local stations from entering into contracts by which they surrendered control over content to the networks • A stations that entered into such an arrangement could lose its license • The networks challenged the regulations and lost, for the Supreme Court concluded not only that 1) the rules concerning chain broadcasting were legal, but also that 2) the FCC's licensing procedures were constitutional SPECTRUM IS SCARE - REGULATION IS JUSTIFIED "The 'public interest' to be served under the Communications Act is thus the interest of the listening public in 'the larger and more effective use of radio.' The facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest." --Justice Felix Frankfurter LICENSING DOES NOT VIOLATE THE FIRST AMENDMENT "The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the 'public interest, convenience, or necessity.' Denial of a station license on that ground, if valid under the Act, is not a denial of free speech." --Justice Felix Frankfurter

Syracuse Peace Council v. Federal Communications Commission

• In the summer of 1982, WTVH-TV in Syracuse, NY, ran a series of ads arguing the Nine Mile II Nuclear Power Plant (right) was a "sound investment" in New York • The Syracuse Peace Council complained to the FCC that WTVH had failed to give the conflicting perspectives required by the Fairness Doctrine • While the case was pending, the FCC decided to suspend the Fairness Doctrine • Syracuse Peace Council challenged the FCC's decision in Federal Court FAIRNESS DOCTRINE NOT REQUIRED "The Commission has the authority to reject the doctrine if it concludes, without being arbitrary or capricious, that it no longer serves the public interest." Judge Stephen F. Williams Court of Appeals for the D.C. Circuit

Fairness Doctrine

• Introduced by the FCC in 1949; remained in effect until abolished by the FCC in 1987 • The principle: "One of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital issues of the day" • The implication: Broadcasters must devote 1) a reasonable amount of time to the coverage of important public issues and 2) this coverage must be fair and balanced (this includes a personal attack rule)

intentional infliction of emotional distress

• It is difficult for public figures to recover damages for defamation and/or privacy Defamation requires "actual malice" "Newsworthiness" defeats privacy claims • To recover, some public figures have tried a different approach: Intentional infliction of emotion distress 1) Defendant acted intentionally or recklessly 2) Defendant's conduct was extreme and outrageous 3) Defendant's act is the cause of distress 4) The plaintiff suffered severe emotional distress

masson v. new yorker

• Janet Malcolm publishes a two- part story about psychoanalyst Jeffrey Masson based on tape- recorded interviews • Masson sues for defamation arguing some of the quotations are fabricated and that the fabrications prove actual malice • Trial court rules Masson is a public figure and that the quotations are not defamatory as they are "rational interpretations" of ambiguous statements REMANDED FOR RETRIAL "We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times v. Sullivan and Gertz v. Robert Welch unless the alteration results in a material change in the meaning conveyed by the statement." --Justice Anthony Kennedy

rosenblatt v. baer

• Journalist Rosenblatt (Laconia Evening Citizen) accuses Baer, a former supervisor of the Belknap County Recreation Area, of financial impropriety • Judge instructed the jury that a negligent misstatement of fact would defeat petitioner's privilege of free expression • Jury finds for Baer and awards damages JUDGEMENT REVERSED • Under the Sullivan rule, public officials like Baer need to prove "actual malice" • The decision broadened the definition of a public official: "Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply." --Justice William Brennan

ocala star - banner v. damron

• Leonard Damron, the mayor of Crystal River, Florida, is a candidate for county tax assessor • The Ocala Star-Banner printed a story in which it alleged that Leonard Damron has been charged with perjury in federal court • The story was false; Leonard's brother, Robert Damron, was the one being charged with perjury • After losing the election, Leonard Damron successfully sues for defamation ($22,000) EXCERPT "A case charging local garage owner Leonard Damron with perjury was passed over for the present term of Federal Court after Damron entered a not guilty plea before Federal Judge Harrold Carswell in Gainesville. JUDGEMENT OVERTURNED - HONEST MISTAKE "Public discussion about the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule." - STEWART

libel per quod

• Libel per quod means "because of circumstance" or "by means of circumstance" The National Enquirer reported that television director Arthur Fellows was "steadily dating a famous actress" Not libelous (no claim of adultery), except for the fact that Fellows was married to someone else for many years Fellows claimed libel per quod because some readers might have known he was married and inferred Fellows was cheating on his wife

libel per se

• Libel per se means "by itself" or "on the face of it" Example: Larry the Lawyer is an unscrupulous ambulance chaser.

Works eligible for copyright protection

• Literary works • Musical works, including any words • Dramatic works, including any music • Pantomimes and choreographic works • Pictorial, graphic, and sculptural works • Motion pictures and other audiovisual works • Sound recordings • Architectural works

milkovich v. lorain journal

• Maple Height High dominated Ohio high school wrestling; led by coach Mike Milkovich, the Mustangs won 10 state championships in a 19 year period (1956-1974) • A wrestling match on February 8, 1974, between Maple Heights and arch rival Mentor (the Cardinals), degenerated into a brawl • Some observers reported that Maple Heights Coach Mike Milkovich had incited the crowd by criticizing the referees • After a hearing, the Ohio High School Athletic Association declared Maple Heights ineligible for the state tournament and placed the school on probation • Several wrestlers appealed the OHSAA decision and the court issued an injunction against the suspensions Milkovich . . . lied at the hearing . . . after giving his solemn oath to tell the truth." DECISION - OPINIONS CAN BE DEFAMATORY "We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for 'opinion' is required to ensure the freedom of expression guaranteed by the First Amendment." - REHNQUIST

Pickering v. Board of Education

• Marvin L. Pickering, a high school teacher, was dismissed from his job by the board of education for criticizing the school board in a letter that was published in a local newspaper • The board justified the dismissal on the grounds that the letter was "detrimental to the best interests of the school" PICKERING'S SPEECH PROTECTED "What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. - Thurgood Marshall IMPLICATIONS - • The Board of Education could fire Pickering if: --His speech was not worthy of First Amendment protection because it did not deal with a matter of public concern, AND --His speech interfered with the daily operations of the high school or the school system • The Board of Education could not fire Pickering if: --His speech was worthy of First Amendment protection because it dealt with a matter of public concern, OR --His speech did not interfere with the daily operations of the high school or the school system

Good News Club v. Milford Central School

• Milford (New York) Central School enacted a policy allowing residents to use school buildings for 1. instruction in education, learning, and the arts and 2. social, civic, recreational, and entertainment uses pertaining to the community welfare • Milford denied a request from the Rev. Stephen Fournier (right) and his Good News Club to use school facilities on the grounds that the proposed use -- to sing songs, hear bible lessons, memorize scripture, and pray -- was the equivalent of religious use prohibited by the community use policy GOOD NEWS CLUB PREVAILS "The Club's activities are materially indistinguishable from those in Lamb's Chapel and Widmar. Thus, Milford's reliance on the Establishment Clause is unavailing." - Thomas

opinion (defamation defense)

• Most states distinguish between statements of opinion and statements of fact • Unlike statements of fact, opinions cannot be defamatory because they cannot be proven to be false • It can be difficult to distinguish between statements of opinion and statements of fact A statement is an opinion when: 1) the statement addresses matters of public concern; 2) the statement is expressed in a manner that is not provably true or false; and 3) the statement cannot be reasonably interpreted as intended to convey actual facts about a person 1) is the language loose, figurative, or hyperbolic, which would negate the impression that the speaker was seriously maintaining the truth of the underlying facts? 2) does the general tenor of the article negate the impression that the speaker was seriously maintaining the truth of the underlying fact? and 3) is the connotation sufficiently factual to be susceptible of being proved true or false?

Keyishian v. Board of Regents

• New York teachers were required to certify that they were not and never had been Communists, that they did not favor the overthrow of the government by unlawful means, and that they had not communicated "seditious" opinions to others either by utterance or by the distribution of printed matter • The United States Supreme Court declared the New York oath unconstitutional on grounds of vagueness and overbreadth • NOTE: The Justices have historically been more sympathetic to affirming oaths OATHS UNCONSTITUTIONAL "The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" - Brennan

Equal Access Act of 1984

• Passed by Congress in 1984 to compel federally-funded secondary schools to provide equal-access to extracurricular clubs • If a school receives federal aid and has a "limited open forum," or at least one student-led non-curriculum club that meets outside of class time, it must allow additional such clubs to be organized, and must give them equal access to meeting spaces and school publications • Exceptions can be made for groups that "materially and substantially interfere with the orderly conduct of educational activities within the school" • A school can escape the Act's mandates by prohibiting all non-curriculum clubs

Prosser's Privacy Torts

• Prosser concluded that privacy law actually "comprises four distinct kinds of invasion of four different interests of the plaintiff": 1) Intrusion on seclusion 2) Disclosure of a private matter 3) False light 4) Appropriation

Red Lion Broadcasting v. Federal Communications Commission

• Red Lion Broadcasting aired a 15-minute broadcast by Rev. Billy James Hargis (right) as part of a Christian Crusade series in November 1964 • In the broadcast, Hargis attacked Fred Cook, author of Goldwater: Extremist of the Right • Among other things, Hargis claimed Cook had worked for a communist-affiliated organization, that he had defended Alger Hiss and attacked J. Edgar Hoover, and that he had written his book to smear Goldwater • Learning of the attack, Cook demanded a right to reply which Red Lion refused FAIRNESS DOCTRINE/PERSONAL ATTACK RULES UPHELD "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. '[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.' It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here." --Justice Byron White

Feist Publications v. Rural Phone Services

• Rural Telephone, a small telephone cooperative in northwest Kansas, was required to produce a phone directory of all customers free of charge as a condition of their monopoly • Feist Publications produced telephone directories for larger communities in Kansas, Oklahoma, and the Texas panhandle • Without permission, Feist copied 4000 entires from Rural's directory • Rural detected the infringement because they had planted a small number of "fake entries" in their phonebook book and they sued Feist for copyright infringement (using the "sweat of the brow" doctrine) • The Supreme Court ruled in favor of Feist ONLY ORIGINAL WORK CAN BE COPYRIGHTED "Originality remains the sine qua non of copyright; accordingly copyright protection may extend only to components of a work that are original to the author." --Justice Sandra Day O'Connor

Smith Act of 1940

• Section 1 punished speech that attempted to create disloyalty among members of the military • Section 2 punished speech that advocated the "necessity, desirability, or propriety" of overthrowing by force and made it illegal to organize any group to teach the overthrow of the government • Section 3 punished any person who conspired with others to violate the act • Used sparingly during World War II:

Connick v. Myers

• Sheila Myers, an assistant district attorney in New Orleans, was transferred to a different section of the district court • Believing the transfer unjust, Myers circulated a critical questionnaire concerning office grievances and morale to 15 other assistant district attorneys of Orleans Parish • Myers was dismissed from her job by DA Harry Connick, her supervisor, who alleged that she was causing a "mini-insurrection" within the office DECISION TO CONNICK; EMPLOYEE SPEECH LIMItED TO MATTERS OF PUBLIC CONCERN "Although we do not agree that Myers' communication in this case was wholly without First Amendment protection, there is much force to Connick's submission. The repeated emphasis in Pickering on the right of a public employee 'as a citizen, in commenting upon matters of public concern,' was not accidental. This language, reiterated in all of Pickering's progeny, reflects both the historical evolvement of the rights of public employees, and the common- sense realization that government offices could not function if every employment decision became a constitutional matter." --Justice Byron White

damages

• Specific or actual damages (sometimes called compensatory damages) • General damages (usually awarded for pain and suffering) • Punitive damages (awarded to punish and/or deter future misconduct)

false light

• Speech places someone in a "false light" when it conveys something factually untrue about an individual or when it conveys truthful information that carries a false implication • To be actionable 1) the portrayal must be "material and substantial" and 2) the misinformation must reach a substantial audience • This later requirement explains why false light suits are generally brought against media defendants DISCERNING FROM DEFAMATION - Defamation - reputation ruined - false light - reputation in tact, while person is subjected to shame, embarrassment, humiliation -fictionalization, distortion

Espionage Act of 1917 (as amended in 1918)

• The Espionage Act of 1917 was directed at acts of sabotage and the protection of military secrets • Amended in 1918 to criminalize expression that undermined the war effort • More than 2000 prosecutions brought under the Espionage Act of 1917/1918

Miami Herald Publishing Co. v. Tornillo

• The Miami Herald criticized Pat Tornillo, a leader in the Miami- Dade teacher's union and a candidate for the Florida House of Representatives • Invoking Florida's 1913 right-to- reply statute, Tornillo insisted that the paper public his response verbatim • When the newspaper refused to comply, Tornillo sued in state court FLORIDA LAW UNCONSTITUTIONAL Chief Justice Burger identified four problems with the Florida law: 1) A right-to-reply statute is no different than a statute forbidding the media from addressing a specific topic, 2) A right-of-reply statute imposes a financial penalty on speech, 3) A right-of-reply statute would have a chilling effect on the media 4) A right of reply statute destroys the editorial process

Alien and Sedition Acs of 1798

• The Naturalization Act extended the duration of residence required for aliens to become citizens to 14 years • The Alien Friends Act authorized the president to deport any resident alien considered "dangerous to the peace and safety of the United States" • The Alien Enemies Act authorized the president to apprehend and deport resident aliens if their home countries were at war with the United States of America (still in effect in 2009) • The Sedition Act made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials

new york times v. sullivan (landmark case)

• The New York Times printed an ad for the Committee to Defend Martin Luther King and the Struggle for Freedom in the South • 650,000 copies of the paper were printed, but only 394 were sent to Alabama newsdealers (including 35 copies sent to Montgomery) • L. B. Sullivan, former Commissioner of Public Affairs in Montgomery, AL, sued the Times for defamation • Sullivan's case was part of a larger attack on Northern newspapers • L. B. Sullivan (third from right), Commissioner of Public Affairs in Montgomery, Alabama, sued for defamation • Under Alabama Law at the time, published words were defamatory if they "tend to injure a person libeled by them in his reputation, profession, trade, or business" • In Alabama, truth was the standard for fault SULLIVAN"S CASE Publication Yes Identification Yes, by inference (Sullivan was formerly Commissioner of Public Affairs; responsible for police) Defamation Injury to reputation and profession Fault 7 false statements (under Alabama law the standard was the truth) there were several false statements in the defamatory passages ACTUAL MALICE STANDARD "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with (1) knowledge that it was false or with (2) reckless disregard of whether it was false or not." --Justice William Brennan SULLIVAN • No proof of knowing falsity, i.e., that the Times knew the ad contained falsehoods • No proof that the Times acted with a "reckless disregard" for the truth •VERDICT REVERSED _ CASE DISMISSED • The impact on the civil rights movement was significant

WHAT THEY MEAN (KENTUCKY & VIRGINIA)

• The Supreme Court never ruled on the constitutionality of the Alien and Sedition Acts of 1798 • To the Federalists, it appeared that the First Amendment might mean nothing more than the absence of prior restraint (Blackstone's view) • The Republicans argued against the Sedition Act of 1798, but it is not clear that they opposed the regulation of speech by state legislatures

Zemel v. Rusk

• The United States broke diplomatic relations with Cuba on January 3, 1961 • Two weeks later, the Department of States declared U.S. passports to be invalid for travel to or in Cuba "unless specifically endorsed for such travel under the authority of the Secretary of State" • The State Department could grant exceptions for "persons whose travel may be regarded as being in the best interests of the United States, such as newsmen or businessmen with previously established business interests" • When Louis Zemel's application to travel to Cuba was denied, he filed suit in federal court arguing the travel restrictions were unconstitutional • Zemel claims he should be allowed to travel to Cuba "to satisfy [his] curiosity . . . and to make [him] a better informed citizen." DECISION TO RUSK ON A 6 TO 3 VOTE The right to speak and publish does not carry with it the unrestrained right to gather information." —Chief Justice Earl Warren

Rosenberger v. Rector and Visitors of the University of Virginia

• The University of Virginia uses student activity fees to pay the printing costs of publications issued by student groups called "Contracted Independent Organizations" (CIO) • The university withheld authorization for the CIO, Wide Awake Publications, because its newspaper "promotes or manifests a particular belief in or about a deity or an ultimate reality" which was prohibited in the funding guidelines • Wake Awake sued on the grounds that the refusal to authorize payment violated their first Amendment right to freedom of speech WIDE AWAKE PREVAILS "The viewpoint discrimination inherent in the University's regulation required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief. . . . There is no Establishment Clause violation in the University's honoring its duties under the Free Speech Clause." - Kennedy

west virginia v. barnette (ch 3)

• The West Virginia Board of Education required all classes to begin with a compulsory flag salute • The Barnette family -- members of the jehovah's witness -- objects on the grounds that their religion prevents them from pledging allegiance to the flag of any government • Justice Jackson's famous opinion: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein"

intrusion on seclusion

• The intrusion tort is not about message content, but rather about the way in which the information was gathered • Three conditions must be satisfied to prevail in an intrusion upon seclusion lawsuit: 1) the defendant intruded on the plaintiff; 2) the intrusion happened in a place where there was an expectation of privacy; and 3) the intrusion would be highly offensive to a reasonable person

disclosure of a private matter

• The public disclosure of matters that are private can be thought of as "the truth should not be told" • Three conditions must met be before the disclosure of a private matter is actionable: 1) the plaintiff must show that the defendant was the one who publicized the matter and that it was communicated "to the world at large" (not to just one or two individuals) 2) the information disclosed must be offensive to a "reasonable person" and not be of an ordinary, non-offensive nature 3) the story must be about some aspect of the plaintiff's private life that is not newsworthy or a matter of public record

tarnished reputation (defamation defense)

• There can be no damage to a person's reputation if they have no character to damage or already have a poor reputation

time v. pape

• Time Magazine of November 24, 1961, printed an article on police brutality based on information in a 1961 report issued by the U.S. Commission on Civil Rights • The Time story highlighted Monroe v. Pape, a civil rights action brought against Deputy Chief of Detectives Pape • Pape sues for defamation as the account is based on Monroe's complaint, not on the findings of the Commission and as the account contains no qualifiers ("reportedly or "allegedly") EXCERPT "The police, says Justice, 'broke through two doors, woke the Monroe couple with flashlights, and forced them at gun point to leave their bed and stand naked in the center of the living room. The officers roused the six Monroe children and herded them into the living room. Detective Frank Pape struck Mr. Monroe several times with his flashlight, calling him '******' and 'black boy.' Another officer pushed Mrs. Monroe. Other officers hit and kicked several of the children and pushed them to the floor. The police ransacked every room, throwing clothing from closets to the floor, dumping drawers, ripping mattress covers.'" JUDGEMENT OVERTURNED TIME QUOTED VAGUE GOVERNMENT REPORT Given the ambiguities of the Commission Report as a whole, and the testimony of the Time author and researcher, Time's conduct reflected at most an error of judgment. - STEWART

pope v. illinois

• Two bookstore clerks from Rockford were convicted under Illinois law of selling obscene books • In both trials, the judge instructed the jury that materials were obscene if the average person would find they lack serious literary, artistic, political, or scientific value • The defendants moved for dismissal arguing that the Illinois statute was unconstitutional in failing to require that the value question be judged "solely on an objective basis," without reference to community standards VACATED AND REMANDED

"bad tendency" test AKA "nip it in the bud" "killing the serpent in its egg"

• Under English Common Law, the government could suppress speech that had a "bad tendency" • If you "nip it in the bud," you can deal with a problem before it can grow into something serious • Some likened this to "killing the serpent in its egg" ex - Hicklin Rule *english common law

constitutional defense (defamation)

• Under New York Times v. Sullivan, public officials/figures must prove actual malice • On matters of pubic concern (even if no public official/figure is involved), plaintiff must prove actual malice • Actual malice must be demonstrated with "clear and convincing evidence" (First Amendment protects criticism absent proof of "actual malice")

Duration of Copyright

• Under the Copyright Act of 1976: --Works created before January 1, 1978, were protected for the life of the author plus 50 years --Works of corporate authorship were protected for 75 years • Under the terms of the 1976 Act, several important works created in 1923 (1998 - 75 = 1923) were about to pass into the public domain --"Rhapsody in Blue" --"Steamboat Willie"

City of San Diego v. Roe

• Under the pseudonym John Roe, a San Diego police officer posted sexually explicit videos and other items to an adults-only section of eBay • Roe was recognized and ordered to stop selling explicit materials on the Internet • Roe removed some of the items, but he did not change his seller's profile which described some of the explicit videos he had produced • The city dismissed roe for disobeying orders; Roe sued alleging the city had violated his freedom of speech CITY OF SAN DIEGO PREVAILS "These cases make clear that public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." - Per Curiam

curtis publishing v. butts

• Wally Butts was a legendary football coach (140-86-9) at the University of Georgia and later Athletic Director • An article in the Saturday Evening Post accused Butts of conspiring with Bear Bryant to fix the 1962 Alabama v. Georgia game (won 35-0 by Alabama) • Bear Bryant also sued for defamation • Butts wins because he is able to prove the Saturday Evening Post was negligent in validating the truth of the fixing charge

Basic Books v. Kinko's Graphics

• Without permission, Kinko's reproduced excerpts of copyrighted works and created "course packs" that were marketed to college students • Kinko's paid no royalty fees and the "course packs" were sold for profit • The plaintiffs, Basic Books and the other major New York City publishing houses, sued for copyright infringement • Among its defenses, Kinko's argued that the course packs qualified as a fair use PURPOSE AND CHARACTER - while educational- sold for profit - commercial NATURE OF THE COPYRIGHTED WORK - "Factual works, such as biographies, reviews, criticism and commentary, are believed to have a greater public value and, therefore, uses of them may be better tolerated by the copyright law. The books infringed in suit were factual in nature. This factor weighs in favor of defendant." - motley AMOUNT AND SUBSTANTIALITY - portions copied were critical parts of the books copied EFFECT ON THE MARKET "This court further finds that Kinko's copying unfavorably impacts upon plaintiffs' sales of their books and collections of permissions fees. " SUMMARY - NOT FAIR USE *Purpose and character of the use Favors Basic Books (for profit) *Nature of the copyrighted work Favors Kinko's (factual works) *Amount and substantiality Favors Basic Books (critical parts) *Effect on the potential market Favors Basic Books (harms sales)

Works not eligible for copyright protection

• Works that have not been fixed in a tangible form of expression • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents (Protected by Trademark) • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration (Protected by Patent) • Works consisting entirely of information that is common property and containing no original authorship

United States v. Zenith Radio

• Zenith Radio, an early producer of radio receivers, requested and received a broadcast license • The license came with the following restriction: "This station to be operated only on Thursday nights from 10 to 12 p.m., Central Standard Time, and then only when the use of this period is not desired by the General Electric Company's Denver station." • Finding these limitations unacceptable, Zenith began broadcasting on a different frequency and Hoover fined the company • Zenith challenged the restriction on the grounds that the Radio Act of 1912 did not empower the Secretary of Commerce to actively regulate broadcasting DECISION TO ZENITH RADIO "The Secretary of Commerce is required to issue the license subject to the regulations in the act. The Congress has withheld from him the power to prescribe additional regulations. If there is a conflict between a provision in the license and the regulations established by Congress, the latter must control." --Judge Wilkerson, RESULT - CHAOS