Media Law Chp 2

Gitlow Ruling - Incorporation Doctrine

- In Gitlow v New York, the U.S. supreme court established the Incorporation doctrine, meaning the free speech and free press clauses of the First Amendment are "incorporated" through the Fourteenth Amendment due process clause as fundamental liberties that apply to all levels of government.

Seven 1st Amendment Theories

1. Absolutist theory 2. Ad hoc balancing theory 3. Preferred position balancing theory 4. Meiklejohnian theory 5. Marketplace of ideas theory 6. Access theory 7. Self-realization theory

Sedition act expired in

1801

Vinson v. Dennis

Clear and PROBABLE danger test. In each case (courts) must ask whether the gravity or the "evil" discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger

Brandies v. Whitney

In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that past conduct was a reason to believe that advocacy was the contemplated

Near v Minnesota (1931)

Near published articles that attacked city corruption and government officials. The US Supreme Court ruled the Minnesota statue (newspapers were public nuisance) was unconstitutional prior restraint

Holmes v. Schenick (1919):

The character of every act depends upon the circumstances in which it is done Do the words present clear and present danger. It is a question of proximity and degree.

Brandenburg v. Ohio

The constitutional guarantees of free speech and free press do not permit a state to forbid the use of force or of breaking the law except where such advocacy is likely to incite or produce such actions the law must distinguish between the abstract advocacy of ideas and the incitement to unlawful conduct.

U.S v Bell (2005)

Upheld a permanent injunction barring Thurston Paul Bell from promoting and selling unlawful tax advice. "The federal government sought and won a district court injunction stopping Bell from engaging in false, deceptive or misleading commercial speech relating to tax matters

Espionage Act of 1917 made it a crime to:

Willfully convey a false report with the intent to interfere with the war effort

U.S v Progressive (1979)

a reporter gathered information from on how to build a H bomb. - the U.S government found about the story before release of the magazine, and asked courts for a permanent injunction against publication - the U.S distinct court rules progressive magazine could be enjoined from publishing the article because the article "would likely cause a direct, immediate and irreparable injury to the nation"

Absolutist theory

a. "No law" means no law; an absolute protection against government censorship b. few supreme court justices have adopted this position; no court majority has ever adopted an absolutist position

Meiklejohnian theory

a. "Public Speech" Speech or press that advances self-governance Should always be protected b. "Private Speech" Speech or press that addresses anything other than self-governance Should not be protected absolutely, as being not essential to self-governance

Preferred position balancing theory

a. "When balancing conflicting rights, speech and press are given greater weight - put in a preferred position - than other rights b. Today, courts use this theory more often than any other

Marketplace of ideas theory

a. All information and opinions should be allowed to compete in a marketplace, with the best ideas chosen from among the many b. This metaphor, first introduced in the supreme court by Justice Oliver Wendell Holmes Jr currently dominated the court's discussion of freedom of speech c. Critics of the marketplace of ideas say: Its allows harmful speech & speech with little value to be circulated Those w/ the most resources have more and louder voice in marketplace of ideas

Access theory

a. Free speech and press rights are not meaningful to citizens unless they have access to media outlets b. If media will not voluntarily allow use of airwaves or print, then government should force this access c. Access theory was struck down by the US Supreme Court in Miami Herald v Tornillo

Self-realization theory

a. Speech can be inherently valuable to a person regardless of its effects on others - it is an end in itself b. Expressing one's identity through speech Symbolic speech

Ad hoc balancing theory

a. When free speech and press rights conflict with other important rights, courts must balance there freedoms b. Determined on a case by case basis

Media products that have been challenged in courts in regard to Brandenburg test include:

o Movies: Basketball Diaries o Games: Grand Theft Auto o Book: Hit Man

Sedition act of 1918 made it a crime

to use language intended to cause contempt of or scorn for the federal government, the constitution, the flag or the uniform of the armed services