Media Law
What are wikileaks?
2010 online postings of more than 90,000 classified military documents about the Afghan war
Why are fighting words intentional?
According to the courts they "inflame tempers and set fire to reason". They are words that automatically trigger violence and illegality.
What are the theories and realities of the speech and press freedoms?
Ad hoc balancing and categorical balancing
What is prior restraint?
An action taken by the government to prohibit publication of a specific document or text before it is distributed to the public, a policy that requires government approval before publication.
How does Broompton Bldg., LLC v Yelp reflect the methods of deciding what the first amendment means?
An apartment building owner tried to get into an anonymous yelp posting of a peson who left a bad review, the court weighed tenants rights to speak anonymously against the owners right to seek payment for damages.
What is emerging internet law?
Are facebook likes free speech? Bland v Roberts
What is Justice stewarts argument about a free press?
Argues to discover the original intent of the framers of the constitution and that the free press clause was intended to provide special protections for journalists and mass media in checking the power of government.
Why did Johnson v Texas require strict scrutiny?
Because Texas didn't like the expression of burning the flag; the state was punishing an idea which has no criminality. The state law did not advance a compelling government interest, it is content-neutral and the freedom of expression was unintentionally affected.
Why is language the greatest strength?
Because plasticity of meaning gives the court its complete power to change protections by the first amendment.
What was the case changing how we know the clear and present danger test and why?
Brandenberg case v Ohio replaced clear and present danger standard because it was toobroad, too objective, and needed to change with the time.
What is the precedent setting case for the clear and present danger test?
Brandenburg v Ohio
How did the case of Chaplinsky v New Hampshire reflect the latter method of decision making?
By using the categorical approach, the court noted that certain well defined and narrowly limited classes of speech aren't an essential part of an exposition of ideas, and are of slight social value as a step towards the truth.
What are the varying degrees of scrutiny?
Content neutral laws and content based laws.
What was the ruling in Bland v Roberts?
District courts ruled tha likes dont count as free speech, but then the case was appealed and amicus briefs were submitted in the 4th circuit court of appeals, determined that facebook likes are not free speech.
What is the only question in categorical balancing? How is it answered?
Does a specific act of expression fall within an unprotected class? By looking beyond the speech itself to consider the particular circumstances and extent of harm caused to determine if the expression is punishable.
What type of law is the first amendment protection and the internet?
Emerging law
If the constitution protects such false statements like pure speech, laws may punish what?
False statements like the danger of suppressing valuable ideas, deciding if the speech has value.
What are speech assaults?
Fighting words vs hate words and the applicable case law that reflects the expansion of the freedom of expression
What is the attainment of truth?
Freedom of expression aids the search for truth assumes that rational decisions emerge from consideration of all facts and arguments; an individual who seeks knowledge and truth, truth in the marketplace of ideas. If a correct statement is suppressed, he said people are deprived of the opportunity of exchanging error for truth
What are designated public forums?
Government buildings available for public use within limits, usually common for purposes of exercising rights of speech and assembly.
What are nonpublic forums?
Government property not available for free speech because it cant affect the areas daily practice, it needs to have rationale, not available for public speech and assembly purposes
What has some protection under the first amendment?
Hate speech, commercial speech, and non-obscene sexual expression.
How did the philosophies of Milton affect the foundations of First Amendment Theory?
He protested against government control of content and he developed theory to justify press freedom. He is a poet, created "Areopagitica"
Why does justice stewart say intent is a slippery thing in free press?
He says this because the authors of the first amendment didn't leave many records to show the original intent
What did Blackstone say about forbidding free speech?
He says to forbid it destroys the freedom of the press; but if he publishes improper and illegal words, he must take the consequences of his own territory.
What has no protection under the first amendment?
If it can be proven, defamation, fighting words, false advertising, obscenity.
Bland v Roberts
In emerging internet law, when the sherriff was up for re-election, the employees in a sherrifs office liked the opponents facebook page and in result they were fired. They sought damages for the retaliatory firing. They claimed their free speech rights were violated.
How must free speech issues be examined?
In their context
What does Locke say are our fundamental natural rights?
Including life, personal liberty, self-fulfillment, government has no innate rights or natural authority
What do the justices take into consideration for categorical balancing and ad hoc balancing?
Intent is slippery, the constitution is a living document, it's meaning evolves with societal changes, flexibility of the constitution.
What is in Rosseau's social contract?
It exchanges people's freedom for a limited government advancing collective interest. Government censorship violates social contract and can never be justified.
What is the religious clause?
It forbids the government from favoring or aligning itself with any particular religion or favoring certain believers over other non believers.
What is the fighting words doctrine?
It has no first amendment protection. These were originally directed at an individual and now they are used as incitement. To inflict injury or tend to incite immediate breech of speech, they cause immediate harm or illegal acts, inflicts emotional harm and triggers violence
What is hate speech?
It has some protection, name calling and pointed criticism that can be symbolic that demeans others. Basis of this is race, gender, color, origin. It is intended to protect free speech/expression that is abhorrent, courts find hate speech unconstitutional
What is the clear and present danger test?
It is a doctrine establishing that restrictions on first amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm
When it is okay to use certain speech, it is protected speech, when it is not okay to use certain speech, it is what?
It is unprotected speech. What is not protected should be defined as narrowly as possible
What does Locke say about government existence?
It only exists through the grant of the people; people don't grant the government power to limit their natural human rights; its censorship is always illegitimate.
What does the google case reflect?
It shows what information google decides will be most valuable which is called editorial judgement/opinion. Google can decide as the editor, which is most important. Google won!
What case law reflects keeping the peace and tranquility?
It started through communists red scare of the 50s and 60s.
What do historians say that the first amendment was never meant to do?
It was never meant to be an absolute ban on all government action involving freedom of speech or of the press.
What are cases that are examples of symbolic speech?
Johnson v Texas because it required strict scrutiny
Why does ad hoc balancing have justices decide which side has more constitutional merit?
Justices examine because this method of deciding first amendment means and protection has no clear rule
What was in the case Virginia v Black?
KKK, ruling
What relevant english history played a role in the origins of the first amendment as to why England controlled the printing press?
King Henry the eighth and the Roman Catholic Church feared the broad public distribution of printed materials would erode their control of information and their authority.
McCullen v Coakley (2014) abortion clinics in Massachusetts
Law suit made by pro-life groups challenging Mass. state law enacting a 35 foot buffer zone outside the abortion clinics. The protest group argued that their first amendment rights were violated
What kind of law is enforced in prior restraint?
Laws that punish immoral speech after the fact
What are some cases of categorical balancing?
National Security v freedom of expression Peace and tranquility v freedom of expression Educational concerns v freedom of expression Cases heard in criminal court v freedom of expression
What does the clear and present danger test impact?
National security and stability, these are the roots and application of test through case law
What is the first amendment theory of personal fulfillment as defined in the lecture?
Natural human right to be expressive, speaking and publishing enriches life
What is the hierarchy of Free Expression protection?
Not all exoression is equal, there are levels of most protected, some protection, and no protection.
Who benefits from the First Amendment?
Not just journalists but ordinary citizens too, for the benefit of those who want or need information
What is argued in Milton's "Areopagitica"?
Open market place of ideas advanced the interests of society and humankind, angered by the church and state, free exchange of ideas is vital to the discovery of truth.
What do courts weigh broad categories against?
Other categories of interest also known as first amendment clauses
What has the most protection under the first amendment?
Political speech of news and opinions about government and public affairs, and religious expression which is any communication related to one's spiritual beliefs or lack thereof.
What are traditional public forums?
Public use, public gathering, parks, government property held for the use by the public. Land historically used for public gathering
What is the case that represents hate speech?
RAV v St. Paul
What are the journalistic concerns and objections of the patriot act?
Reporters said the laws secrecy provisions hampered their ability to inform the nations about the state of the country's security; internet communication in criminal investigations is now monitored.
What was the result of Broompton Bldg., LLc v Yelp?
Result: court decided in favor of the tenants right to speak anonymously.
What is ad hoc balancing?
Reviewing the cases specifics, rather than looking at general principles. It is looking case by case. The court ways the constitutional interest on one side of a case against competing interests on the other side.
What did the clear and present danger test start with?
Schenk v US, they were right on the heels of espionage and sedition acts
What are the main issues of peace and tranquility?
Speech assaults with harmful images, intimidation/threats, symbolic speech and educational concerns
What is an example of issues on college campuses?
Students protesting classical philosophy course because philosophers were white. Certain celebrities banned from campuses.
According to the 14th amendment, the first amendment cannot be what?
Superseded by state law
What is the First amendment value of the attainment of the truth as defined in the lecture?
Supporting the marketplace of ideas
What was the result of the wikileaks?
Technology makes it futile to pursue injunctions against web postings.
What was the case that first began the expansions of free speech?
Terminello v Chicago
In history, who controlled all presses in England that made suppressive laws?
The British Crown, they did this through licensing power because.
Why was NY times v United States unconstitutional?
The Court said it was unconstitutional but they didn't find it defamatory against national security
What happened when one media defendant violated state law in the criminal court?
The case followed the state appellate system to the court, resulting in the case Near v Minnesota
What is the impact of the patriot act
The chilling effect on first amendment freedoms, the legislative branch has curtailed powers and the impact of any chilling effect especially those that impacted journalists.
What did the court rule in the McCullen v Coakley (2014)
The court ruled in favor of the pro-life group and the freedom of expression rights
What does categorical balancing take into consideration?
The degree of harm that may be caused if freedom of expression is permitted.
What is an example of the relationship of computers and free speech?
The google case where the google search results and ordering caused someone to file a complaint
What was the outcome of near v. minnesota?
The government cant decide what is acceptable and what is not in writing
What is the current standard of the clear and present danger test?
The incitement test
What all is included in the national security and tranquility?
The patriot act and the impact on the first amendment, the clear and present danger test, the chilling effect
What does categorical balancing primarily consider?
The potential harms if the category of free speech were allowed
What is the evolution of expanded speech?
The timeline of expanded speech.
What is the basis of the patriot act and what is it deigned to do?
The uniting and strengthening of america by providing appropriate tools required to intercept and obstruct terrorism act of 2001 passed on 9/11/01 attacks. It is designed to give law enforcement agencies greater authority to combat terrorism.
What is involved in college campuses and censorship?
There is a trend towards strident enforcement of left wing purity which is driven by empowered college students through social media.
What are content based laws according to the lecture?
They are laws enacted because of the message, the subject matter of the ideas expressed, and the government disagrees.
What can the government do to speech in the categorical balancing method?
They can prevent and punish this speech using this approach
What did the government conclude out of Chaplinsky v New Hampshire?
They concluded that they can prevent and punsih speech without violating first amendment; court didn't fully develop the narrow categories of speech?
What happens to freedoms and their protections?
They expand over time, they become broader and more inclusive.
What did the Roman Catholic church and British crown outlaw as a result?
They outlawed critical views as heresy - the criticism of the church - and therefore made a system of licensing of printers for review of all texts, the banned books and censored disfavored ideas; printers became an extension of law enforcement.
Why are content neutral laws tolerated?
They restrict where, when, and how ideas are expressed.
How does the court decide cases in categorical balancing?
They weigh different broad categories, such as political speech, against other categories such as privacy, to create rules that may be applied in later cases with similar facts.
How did the philosophies of Locke affect the foundations of First Amendment Theory?
This english philosopher and political theorist argues that government censorship was an improper exercise of power and that all people have the fundamental natural rights.
How did the philosophies of Rosseau affect the foundations of First Amendment Theory?
This french political philosopher advanced a view of social contract between the people and their government. He says all people are born free and equal, but would become uncivilized and violent if not constrained by law and morality.
What is change with stability?
This infers that orderly societal change provides social stability, free expression acts as a safety valve, allowing participation in change rather than seek influence through antisocial acts
How did the philosophies of Blackstone affect the foundations of First Amendment Theory?
This legal scholar said that under English common law, freedom of speech meant only that the government could not censor speech prior to publication and that liberty of the press is essential to the nature of a free state.
What is categorical balancing?
This places cases within broad categories of concern, example of this is national security. These broad categories determine the level of first amendment protection, some types of speech deserve a lot and some dont.
What is the first amendment theory of governance as defined in the lecture?
To assure an effective system of freedom of expression, It provides for an informal electorate about myriad subjects
What is the check on government power and abuse?
To further democratic governance, freedom of expression is to be valued as a check on abuses of a governmental authority, seeing media as an institutional counterweight to government.
What do historians say was the first amendments intent to prevent?
To prevent the US government from adopting the types of suppressive laws that flourished in England during the 300 years following the introduction of the printing press.
What are content neutral laws or regulations according to the lecture?
UNINTENTIONALLY affect speech as they advance other important government interests
What cases are involved in intimidation and threats?
Virginia v Black, Elonis v US
Elonis v. US
When a mad divorced man issues true threat to his wife through facebook, he was convicted, but the court ruled that there wasn't a true threat there.
What is prior restraint?
When the government prohibits the publication or suppresses certain material, this egregious (bad) assault on first amendment rights is reflected in case law samples.
What is the first clause of the First Amendment?
You couldn't practice your faith, if you think you've been wronged you can ask the government to fix it