MMC4200 Exam 2

The fighting words doctrine

"...fighting words—those which bt their very utterance inflict injury or intend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any expostition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." -Court emphasized that all fighting words must be a personal, face-to-face encounter—a true verbal assault in 1972 when it ruled that laws prohibiting fighting words to be limited to words "that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.

5. Paul Robert Cohen could just as easily worn the jacket with the words "I object to the draft" to express his ideas. Using material from Part II of the opinion in Cohen where relevant, explain why this alternative message could not be effective and why Cohen might have chosen the language that he did for its specific function. What are the dual communicative functions of speech?

"Much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force."

6. What is the remedy the court suggests that an offended onlooker has in this particular case? Would that remedy be effective if Cohen had spoken the words in question?

"Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes." ( a self-help remedy, and they were in a public courthouse) They could not do this if Cohen spoke the words instead because they cannot turn their ears away.

7. According to the majority opinion in Cohen, "it is nevertheless often true that _______________."

"it is nevertheless often true that one man's vulgarity is another's lyric."

True threats of violence

-"those statements where the speaker means to communicate a serious expression on an intent t0 commit an act of unlawful violence to a particular individual or group of individuals. Intimidation in the constitutionally proscribable sense of the word is a type of true threat where the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." -Political hyperbole is not a true threat. -Saying something to someone that puts them in reasonable fear of imminent bodily harm or death. -More than hyperbole—it's about being put in fear of physical injury or death -Speaker—means to communicate a serious expression of an intent to commit an unlawful violence to a particular individual or group of individuals -Speaker—does not have to intend to actually carry out the threat and need not have the means to carry it out -Recipient—fear of bodily harm or death -Unresolved issue: what level of intent must defendant have? Is it enough to convict someone under true threats doctrine If reasonable person in position of recipient would be put in fear of bodily harm or death? Or do we have to ask if speaker intends to put you in that position? If speakers intent makes a difference, what level of intent does speaker have to have?

Tinker v. Des Moines Independent school district

-1966 -Des Moines, Iowa -Vietnam war was going on. Tinker children were against the war and they wore black armbands with peace signs to protest Vietnam and call for truce. School prohibited them from banning them from wearing them by drafting policy. Tinker kids litigated the case and took it to supreme court by saying it violated their first amendment right of free speech -Supreme court ruled: "students in the public schools do not shed at the schoolhouse gate their constitutional rights of freedom of speech and expression" -Christopher Eckhardt and Mary Beth Tinker went to school wearing black armbands with the peace sign on it. Mary's brother John wore it the next day. All three were suspended because they didn't remove the bands as requested by school officials. School officials were scared the armbands may invoke violence among the students. Most of whom supported the war. The students appealed to the courts to overturn their suspension -The court ruled in favor of Tinker children and Eckhart -Split decision -Students have right to express their opinion if they do so "without materially or substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others." -An "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression" -Ruling: Substantial and material -School can sensor free speech if speech causes substantial and material disruption to educational material/atmosphere -OR Interference with the rights of other students -School has to have actual facts that would reasonably lead school authorities to predict such a disturbance or interference will occur -Undifferentiated fear or apprehension of a disturbance is not enough to justify censorship -In this case, "the record does not demonstrate any facts which might reasonably have lead school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred." -Was only case that won in favor of the students -Dissenting opinion: Clarence Thomas believes historically that children were better seen not heard, would overrule Tinker

John Facenda

-2008 3rd circuit court refused to dismiss a lawsuit by the son of john Facenda. Madden NFL 06 used films of John Faenda's voice in their video game. Facenda had been a popular voice for the NFL for years but he never consented to the use of his voice for the video game. The court said that Facenda's voice had commercial purposes and that he had never consented to such a use.

Nwanguma v. Trump

-6th circuit of appeals (in Kentucky) -Started from trump campaign rally in Louisville, Kentucky. Trump is at campaign rally. Nwanguma and 2 other individuals are protesting the rally. The individuals are pushed and shoved by supporters at the rally. Trump sees the protestors and says "get them out of here" five times, he later on says "but don't hurt them." Nwanguma sues trump and two people who attacked them. The attackers say they would not have touched them if trump did ot say anything. -The supreme court upheld that trumps speech is protected because he did not specifically advocate imminent lawless action. Trumps words may have arguably had a tendency to encourage unlawful use of force, but they did not specifically advocate for listeners to take unlawful action against the plaintiff. -Trump's words were directed to unidentified listeners, apparently, he was talking to his security. In the ears of some, they may have a tendency to elicit a physical response. The words "Don't hurt them" it dismisses that it was violent

Woody Allen

-Agreed to $5 million settlement with American apparel. AA used a frame from the film "Annie Hall" which depicted Allen as a Hasidic Jew, on a billboard in Los Angeles and New York, and on its website. -Sought $10 million but only got $5 -Not all courts have followed this path. In 2008, a federal court in New York ruled that state statute did not "extend to fictitious characters adopted or created by celebrities." -Said he was so closely related to the character he played in Annie Hall

Bullard v. MRA Holdings

-Bullard was just age 14 and a middle schooler, she exposed her breasts during spring break to two unknown men in a parking lot in Panama City, Fla. Although aware the men were taping her, Bullard did not know what future use they might make of the video. Ultimately, the video was sold to MRA Holding, which markets "Girls Gone Wild." A still photo of Bullard flashing was taken from the video and put on the box cover. MRA Holding blocked out Bullard's breasts and superimposed the inscription "Get Educated!" in that space. This image also appeared in TV commercials and Internet ads. -The court rejected the notion that Bullard's consent to be videotaped amounted to consent for MRA Holding to use her image on the box cover. "The men to whom Bullard exposed her breasts never indicated to Bullard that they worked for, had any connection with, or had any intention of giving Bullard's image to, MRA for the purpose of selling 'College Girls Gone Wild' videos. Nor did Bullard have any contact with MRA to give MRA permission to use her image for that purpose," -minors typically cannot consent to the use of their names or likenesses without additional permission from a parent or guardian. Having already found for Lindsey Bullard, however, the court "decline[d] to reach that issue."

Connected to a newsworthy event/story

-Can publish name/likeness if it is a news story, do not need consent -Use of name and likeness in political advertisement is not regarded as an appropriation

Unprotected speech categories

-Child pornography involving real minors as well as obscenity -Fighting words (Under Chaplinsky) -Incitement to violence ((Under Brandenburg v. Ohio) -True threats -Certain types of libelous statements -Advertising that is false, misleading or about unlawful product or service

Brandenburg v. Ohio (1969)

-Clear and present danger test -Brandenburg was KKK member/leader. Klan holds rally in Ohio. Is arrested for speech made at rally. Case goes to supreme court, they said "the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to indicate or produce such action." -Because no one was around during the rally, it was not likely to incite violent. It was in an Ohio cornfield. -Brandenburg's speech is conditional (use words "if" "possible" etc.)

Comedy III Productions v. Saderup

-Comedy 3 owns estate of 3 stooges. Saderup is an artist. He draws a picture of the 3 Stooge's and sold it on mugs and shirts. His defense was that his artistic expression is protected by 1st amendment speech. -The supreme court asks if the art work has transformative elements in the reproduction. Does it add commentary or manipulation/personal quality or satire? Or is it a literal depiction? -California supreme court ruled in favor of Comedy 3 Products because Saderup's art was too literal -The rights of free expression take precedence over the right of the celebrity to protect his or her publicity.

Three key factors of true threats of violence

-Content -Context -Audience reaction

Natural born killers movie (Oliver Stone) satirizes mocks societies infatuation with violent individuals

-Couple on drugs watches the movies and goes to convenient store and shoots the clerk and she becomes paraplegic. Clerk sues the creators of the movie and supreme court uses Brandenburg test. -Stone (creator) didn't intend for anyone to act violently -Imminence: the time between movie came out and the act of violence -It was not likely to occur because other people saw it and didn't commit violent acts -Born innocent movie example -Girl raped in home for troubled girls in movie -A couple of kids watched movie and rapped Olivia N. with a coke bottle. Olivia N sued NBC for negligence. Court applies Brandenburg.

Barber v. Dearborn public schools

-Dearborn, Michigan with the largest arab concentration outside of the middle east -Bretton Barber wore a shirt with George W. Bush saying "international Terrorist" -One student was offended and told a teacher. The teacher asked Barber to remove the shirt or turn it inside out but he refused and asked his dad to take him home early. He later filed a federal lawsuit against the school. -Applying Tinker precedent, Judge Duggan reasoned that the school officials "decision to ban Berber's shirt can only withstand constitutional scrutiny if they show that the t-shirt caused substantial disruption or material interference with school activities or created more than an unsubstantiated fear or apprehension of such disruption or interference." -Only one student and one teacher were offended by the shirt half way through the school day -"It is improper and most likely detrimental to our society for government officials, especially school officials, to assume that members of a particular ethnic group will have monolithic views on a subject and will be unable to control those views."

DC Comics Jonah Hex and the Autumn brothers

-Edgar and Johnny winters (Winter brothers) claimed DC used their likeness in the comic. The lost the case because DC's comic was transformative, not a literal depiction.

Elonis v. United states

-Elonis is going through divorce and goes to Facebook to post about it. His argument is that his posts were in form of rap lyrics that are cathartic. They are to not be taken literal or seriously. -He is prosecuted under federal statute -18 U.S.C S 875 C that makes it a crime to transmit in interstate commerce "any communication containing any threat...to injure" another person. -3rd US Circuit court of appeals upheld conviction because he intended to communicate a message for others to see and that a reasonable person could interpret his speech as threatening. -Elonis appealed arguing the first amendment protected his posts and that the intent of the speaker (him) should matter in deciding if speech amounts to true threat. -The supreme court engaged in minimalism and avoidance in action and reversed the conviction without resolving key first amendment issue. They only addressed statutory issue 875 C, which includes some kind of subjective intent requirement. Criminal needs to have awareness of some wrong doing. -We still don't know today whether the first amendment requires consideration of the speaker's subjective intent in a true threats analysis case

consent

-Exception to minors, mentally challenged -Can lapse over time -Scope of consent: someone consents to one thing and you use their name and likeness for other unconsented things -When a party signs a contract, which a release is, she is bound by the terms of the contract, whether or not she understood it, whether or not she read it. -Consent given via a written contract will normally hold up over time. But there have been instances in which courts have ruled that oral consent became invalid over time, especially if the notoriety of the person who gave the consent has increased. -People incarcerated in prisons sometimes cannot give consent. -Consent to use a particular photograph may be lost if the photograph is substantially altered.

Hustler Magazine (Fuller) v. Falwell (1988)

-Falwell: Plaintiff -Falwell was a reverend, called his political action group the moral majority -Fuller: publisher of Hustler magazine, was shot for publishing bi-racial picture -November 1983 issue of hustler did a parody that satirizes a Campari ad with Falwell. -Falwell sues Hustler magazine and Larry Flynt for libel, IIED, and invasion of privacy but loses because ad disclaimed that it was a parody and not to be taken seriously. There was a disclaimer and it was listed in table of content as fiction. -The trial judge accepted libel and IIED but rejected invasion of privacy. Jurors recjected the libel claim because on the grounds that the parody was so far stretched that no one would believe that it described actual facts about Falwell. -Falwell then sues for IIED, case takes place in Virginia, and wins. -Flynt and Fuller petition for writ of cirt and it is granted because Falwell was a public figure and is going to be made fun of. The supreme court (1988) rules for Flynt and Hustler because if you are a public figure and you sue for IIED based on speech such as issued in the case, in addition you have to prove that there was a false factual statement that was published with actual malice, because they assume a risk of harm as public figures -In the opinion, the chief justice wrote "there can be little doubt that political cartoonists and satirists would be subjected to damages awarded without any showing that their work falsely defamed its subject." -The court ruled that in order for a public figure or public official to win an emotional distress claim, it would be necessary to prove these things (This would not be applied if you were not a public figure, like Falwell's mother who passed away shortly before the parody was published.) -That the parody or satire amounted to statement of fact, not an opinion. -That it was a false statement of fact -That the person who drew the cartoon or wrote the article knew it was false or exhibited reckless disregard for the truth or falsity of the material. In other words, proof of actual malice is necessary. -This would not be applied if you were not a public figure, like Falwell's mother who passed away shortly before the parody was published.

IIED Liability for media

-Gathering news -Publishing the news

Hulk Hogan (Terry Gene Bollea) v. Gawker media

-Gawker filmed/published a sex tape of hulk Hogan without his knowledge -Sues for IIED and wins

-Hart v. Electronic arts

-Hart is a former Rutgers quarterback and electronic arts produced a video game called NCAA Football with realistic characters that used real college teams, uniforms, fight songs, and mascots. -Hart sues Rutgers alleging the using of his likeness and biographical information. -Electronic arts argued that their video game is protected by the first amendment because it was artistic expression -The US 3rd circuit court used the transformative test to determine the rule in this case. The court found that Hart's identity was not transformed. The game included his visual likeness, biography, and vitals. -The court also found that in ruling for Hart against Electronic Arts, "the digital Ryan does exactly what Ryan Hart did at Rutgers." -The 9th US Circuit court ruled the same in Keller v. Electronic Arts.

Hate speech

-Hate speech: words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender, or sexual orientation -There is no unprotected category of hate speech, it is protected unless words that are hateful are used in one of the 3 contexts of unprotected speech -Hate speech is generally protected under first amendment

Katy Dean case

-Her school paper wrote a story about how school buses diesel fumes caused cancer to guy who lived across the fence. Joanne and Rey Frances lawsuit claimed injuries and illness allegations allegedly from inhaling the fumes -Dean's article was factual and accurate -School suppressed it saying that it was innacurate and cited inaccurate sources (USA Today) -American civil liberties Union filed a lawsuit on behalf of Katy, claiming the censorship violated Dean's first amendment right under Hazelwood -Principal said that since the article was for the school not against it, he would have allowed it to run -Standards of Hazelwood were violated. -Government should remain neutral in marketplace of ideas -Judge said the censorship was unconstitutional and that the schools "explanation that the article was deleted for legitimate educational purposes such as biases and factual inaccuracy is wholly lacking in credibility in lights of the evidence of the record." -Distinguished it from Hazelwood because the Bus fumes article did not violate privacy and was age appropriate, did not contain any serious grammatical errors and properly attributes it quotations to their sources. The article did not have any opinion -Censorship of the article violated rule against viewpoint-based discrimination (government restricts and restrains one side of the debate but not the other) Deans article would not have been removed if it had taken the districts side in respect to the Frances' lawsuit against UCS.

Bette Midler

-Her song "Do you want to dance." Ford wanted to use her song in a commercial. She said no and they got a voice-alike singer to sing her song for the commercial. She sued and won her case. -The singer manifests herself in the song. To impersonate her voice is to pirate her identity -When the distinctive voice of a widely known professional singer is deliberately intimidated, this can amount to appropriation.

Johnny Carson

-Here's Johnny Portable toilet company in Ohio -Here's Johnny is Johnny Carson's catch phrase. Carson sues and wins even though he's not the one who says it. -The shinning does not get sued because it is artistic work

Leonard law in California

-If you are in a nonreligious private school in California, you have the same first amendment rights as you would in public school -California is only state with this statute -Why religious-based schools? -Freedom of religion, created dueling first amendment interests -These rights are not nearly as great in schools

Kansas v. Meadors (2012)

-Illustrates that swearing can sometimes amount to fighting words, particularly when there is an unfriendly tension between the individuals. -In Meadors, the two individuals were a divorced couple. The woman was picking her children up and the man started to curse and insult her until she was threated enough to call the police. He continued to yell after the police showed up. He argued that his speech was protected when he was arrested in disorderly conduct charges. The court ruled that his language constituted unprotected fighting words. The court noted that a threat of violence is not required for speech to constitute fighting words. A threat is merely another fact to be considered by the courts when determining whether the words spoken were fighting words.

I <3 boobies case/B.H v. Easton Area School District

-In 2013 several federal courts banned the I <3 boobies bracelets form public schools because the word boobies is considered sexually lewd and vulgar (under bethel v. Fraser) -Students argued that the bracelet is political because it is a way to bring awareness to breast cancer -Concluded that students had first amendment right to wear the bracelet

2006 Morse v. Frederick

-In Alaska, the Olympic torch relay is going through town -Students were given permission to watch the Olympic torch relay. Students are under supervision of officials, adjacent to school -Frederick and friends created banner with friends that says "bong hits 4 Jesus" -"I just wanted to get on TV," Morse (Principal) says that it was pro-drug -Moore argues: They agreed to take dare money that provide clean and safe environment and message -In 9th circuit court, Morse lost in lower case because the sign didn't disrupt educational atmosphere because they were not in school technically -Fraser was factually distinct because it is not sexual lude, vulgar or offensive -Hazelwood didn't apply because it was not school sponsored or curriculum -In the supreme court, Ken Starr represented them, the former independent counsel who investigated Bill Clinton's affair with Monica Lewinsky -Supreme court ruled for Morse and against Frederick -Rule: school may censor speech that can reasonably be regarded as advocating or encouraging illegal drug use -Kennedy and Alito wrote concurring opinion: we agree that Frederick loses, but had he had any social or political commentary, they might have ruled for him -Thomas concurred: Frederick should be punished, but because Tinker shouldn't be law. Thomas believes that Tinker should be overruled because children should be seen not heard.

Intentional infliction of emotional distress (IIED)

-In Florida, a tort of outrage -A tort: a cause of action—legal theory in which someone is seeking relief -noncontractual civil wrong-doings -Ingredients that the plaintiff must prove by a preponderance of the evidence (more likely than not): -Extreme and outrageous conduct by defendant -Conduct that goes above and beyond the bounds of decency and is utterly intolerable in a civilized society. -Done with the intent or reckless disregard for causing plaintiff harm -It was reasonably foreseeable that the defendant's conduct caused the plaintiff emotional distress -Did it actual cause emotional distress -The emotional distress was severe • Must be substantial and enduring • Not minor, brief, or fleeting • A psychic injury, intangible injury • We ask, would a reasonable person in position of plaintiff suffer severe emotional distress

1986 Bethel school district v. Fraser (The Bethel case)

-In Washington -In school nomination for school government, Mathew Fraser is giving a nominating speech for his friend. A double entendre laid speech with sexual innuendos. A couple teachers described it as inappropriate behavior and wrong. Fraser is suspended from school which will negatively affect his ability to get into college. He sued for violation of first amendment right of freedom of speech. Bethel school district lost in lower courts and petitioned for writ of certiorari. -courts ruled for Fraser because Tinker precedent, and there was no substantial disruption -Supreme court rules for bethel school district because it rejected the Tinker case because of different circumstances -Rule: schools can censor expression that is lewd, indecent or sexually offensive or unrelated to any political viewpoint because -Such expression "would undermine the schools basic educational mission"; -"it is a highly inappropriate function of public schools education to prohibit the use of vulgar and offensive terms in public discourse"; and -Society has an interest "in teaching students the boundaries of socially appropriate behavior." -Schools can sensor expression that undermines a school's basic educational mission -he is asking for equitable remedy, not monetary damages. Did not want to have a record, wanted to get into college.

Appropriation and the Right of Publicity

-It is illegal to use an individual's name or likeness for commercial or trade purposes without consent. -This was made a statute in 1902 following the Abigail Roberson incident when her face was used in advertising that she did not consent to. It was made a minor law. -Appropriation protects an individual's name or likeness from commercial exploitation

Michael Jordan Lawsuits

-Jordan sued two Chicago area supermarkets for a sport illustrated ad that used his name and likeness. -Jordan sued Safeway, Inc, parent company of Jewel Food stores and Dominick's, the two stored he sued. (Jewel never went to court). He won the Dominick's case. He sued safeway for using Jordan's name to promte their brand in an ad that commemorated Jordan's entry to the hall of fame.

Virginia v. Black (1992)

-Law in Virginia against cross burning. The Supreme court ruled that a state could proscribe cross burning without infringement on First Amendment freedoms, so long as the state made it a crime to burn the cross with the purpose to intimidate the victim. -The intimidation factor is key. The state would have to prove that the cross burner intended to intimidate the victim; the threat could not be inferred simply because a cross was burned on the victim's lawn.

Grand theft Auto V Lacy Jonas and Lindsay Lohan

-Lindsay Lohan claims the Lacy Jones is her and GTA is using her image without permission -Lindsay Lohan lost, court concluded that the images were not recognized as Lohan. It was a generic picture of a 20-something woman.

Dariano v. Morgan Hill unified school district

-Live Oak High School decided to prohibit students form wearing American flag clothing on cinco de mayo. -Based on the history of racial trouble at Live Oak High School, the judge concluded that "school officials could reasonably forecast that clothing could cause a substantial disruption with school activities." -Many lower courts attempt to factually distinguish Tinker in student-speech cases to avoid applying its precedent. This has grown worse the columbine tragedy -Wearing confederate clothing can be seen as illegal/banned in high schools if a school has had a recent history if racial troubles, because it could interfere with education because of potential violence -No weapon imagery on t-shirts. School can stop the speech but student would say its political speech. You'd have to do textualize analysis of the situation. If there was a school shooting or particular violence at that school it would be justified

Expansion of right of publicity

-Look-alike -Sound-alike -Catch phrases -Robots/objects -Videogame avatars

Florida post-mortem statute

-No person shall publish or publicly use for purpose of trade or any commercial or advertising without the express written or oral consent -Can give right of name and likeness to someone after you are deceased. Lasts 40 years after death

How do we apply these questions?

-Not one of these cases overrules the other. They deal with different facets of facts involving 1st amendment. They are distinguished form each other. They each create their own rule to deal with that situation -A particular type of case supreme court hasn't addressed yet: -Students off-campus on their own time saying or publishing something that deals with students and school administrators -Can school suspend you on-campus -Lower courts have suggested that a public school does have jurisdiction if -speech is directed at or targeted to students or school officials and tinker's substantial-and-material disruption standard applies to correct test for determining in punishment in any given case is justified -If the student who creates the off-campus internet-posted speech later downloads it or accesses it on school and shows it to other students while on campus, then the school has jurisdiction and the Tinker standard typically applies

Gathering news

-Outrageous gathering news tactics -KOVR-TV v. Superior court -The process of interviewing children about disturbing content -Tv reporter and camera man. Told kids that their neighbor had murdered her own children (who they played with) before committing suicide. KOVR did not broadcast the interview. -Children sue for IIED -KOVR argued first amendment protection -A free press is not threatened by requiring basic decency of the reporter

Publishing news

-Outrageous publishing of content -Armstrong v. H&C Communications -Orlando -Regina Mae Armstrong was abducted from Orlando. Construction worker finds the body years later. Police department doesn't make connection until months later. -Armstrong reporter got footage of the skull and sold it to channel 2. But the channel was conflicted about running it. They decided, "f**k it! We are going to run it." But no one had seen the film. The skull was broadcasted to thousands of viewers including the Armstrongs on the day of the funeral. -Extreme and outrageous conduct

Key differences of Tinker and Fraser

-Passive expression in Tinker vs. spoken words expression in Fraser -Fraser was not political but Tinker was, a captive audience situation in Fraser (you had to listen to the speech)

Pitbull and Lindsay Lohan

-Pitbull lyric "I got it locked up like Lindsay Lohan" -Lindsay sued pitbull, alleged that she did not consent to the use of her name in a song and the use of her name thus constituted appropriation -Federal new York judge granted Pitbull's motion to dismiss the lawsuit. Judge Denis R, Hurley wrote that under New York's misappropriation statue, the use of an individual's name—even without his consent is not prohibited...if that use is part of a work of art." -The song was created for art, and even though it was probably created for the purpose of making money, it was not used for advertising or trade purposes.

Cohen v. California

-Political speech because referring to draft policy -Censoring Criticism/dissenting political speech -Penal code section: criminal case -Offensive conduct -Void for vagueness doctrine -The case is about speech, not necessarily conduct. Speech-based case -If his speech is obscenity or fighting words, Cohen's speech is not protected -Not obscene because it is not erotic -When in a public place, you do not have the same amount of privacy as you would in your own home

Tiger woods v. Rick Rush

-Rush was an artist who made a painting of Tiger Woods winning the Masters. -The court ruled for rush because it was transformative. Woods can profit from multiple corporations by endorsing different products, it will not be interfered by the painting -Rush's work consists of a collage

"The Producers" play

-Satirical play about the Nazis was done at Tappan Zee High School in New York. The play features large banners with swastikas but the school district's superintendent banned them from using the large banners with the swastikas. He justified it with Hazelwood because the play was a school and faculty sponsored event. The superintendent failed to realize the satire and humor of the play. There was no lawsuit filed in this case. Was it a violation of artistic freedom?

Fighting words

-Saying something personally abusive, with the danger that the person is going to physically hit back. -Characteristics • Face-to-face, personal encounter • Personally abusive epithets • True verbal assault • Inherently likely to lead to violent action, incite riots or fights • How & to whom words said (pay attention to context) • Not a "list" of fighting words

1988 Hazelwood School district V. Kuhlmeier (St. Louis)

-School sponsored newspaper at Hazelwood East high school -A school sponsored paper that is part of the curriculum, with faculty advisor, an official newspaper, credit for writing/editing -Interviewed pregnant girls at school without using their names -Principled thought privacy rights were going to be violated -Another story in same paper about how divorce can have an effect on kids -Talks to kids whose parents are going through divorce without using names -Principle feared right of privacy violations again, so he spiked these stories -Kathy Kuhlmeier (editor student of the newspaper) sues -Supreme court ruled that censorship was permissible under the first amendment -Ruling involved censorship of a high school newspaper that was published as part of the school curriculum, would not apply to a high school paper published as an extracurricular activity where any student may contribute -Supreme court distinguished Hazelwood from Tinker -"educators are entitled to exercise greater control over this second form of student expression (school-sponsored publications) to ensure that participants learn whatever lesson the activity is intended to teach, that readers and listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of individual speakers are not erroneously attributed to the school." -Educators do not offend the first amendment by exercising control over the style and content of student speech in school-sponsored publications as long as their actions are reasonably related to legitimate pedagogical concerns." -Rule: Schools can sensor speech in school-sponsored forum and speech that is part of the curriculum IF: -"reasonably related to legitimate pedagogical concerns" -Pedagogy=learning/education -Reasonably related, not directly related or clearly tied to -Legitimate: not important, compelling, or substantial. Loosely related -Can censor ungrammatical spelling, inadequate research, bias or prejudices, vulgar or profane (different from Fraser), unsuitable for immature audiences, something that has no valid educational purpose

Incidental use/booth rule

-Someone in the background of an ad if you didn't get permission is legal as long as it's fleeting and brief -Booth rule: Gives you the ability to reuse image or name in an advertisement if it is connected to news story that a publication already wrote/broadcasted -While it's not clear how liable not-for-profit organizations would be, the simplest and best solution in these situations is to get consent from people before you use their likeness for fundraising opportunities.

Use of Name or Likeness

-Stage names, pseudo names, pen names, and so forth count as real names in the eyes of the law -Only the names of people are protected under appropriation, the names of businesses, corps, schools, and other things are not protected under law. -A photograph of a person is a likeness but the picture does not have to be a facial shot. It is up to the court to decide if a picture of someone's backside that was secretly photographed is likeness. -Two ex-employees of a fitness company sued because their pictures were in an ad. They lost. The court noted that there must be a clear representation of identifying features such that the individuals would be recognizable from the advertisement itself. A likeness can also be a sketch or drawing. -Protecting a voice might also be encompassed in a law protecting a name or likeness.

George Wendt and John Ratzenberger (Wendt V. Host International)

-Sued a restaurant chain for installing animatronic robots that looked like Norm Peterson and Cliff Calvin, characters played by Wendt and Ratzenberger in the long running show Cheers. -The court said a performer does not lose the right to control the commercial exploitation of his or her likeness merely by portraying a fictional character in a motion picture or television series.

Taylor Victor v. Manteca Unified School District. Punishing students for displaying their sexuality on t-shirts: Viewpoint-based discrimination against speech?

-Taylor Victor, a high schooler in Manteca, California in 2016 wore a shirt that said "No one knows I'm a lesbian." She was asked to change her shirt. She sued the school district and reached a settlement with Manteca Unified School District that allowed Victor to wear her shirt, and to change its dress code. -"students will not be prohibited from wearing clothing that, jewelry, or personal items that express self-identification with, or in support for, individuals or groups on the basis of...disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion or sexual orientation."

Frank Sivero (good Fellas) and Simpson character

-The Simpson's created a character that looked like Sivero -Court ruled in favor of Simpsons because it was transformative and protected by first amendment

Basic elements of the right of publicity

-Unauthorized -Use of -Another's name/likeness -For benefit/advantage

Advertising and trade purposes (commercial uses)

-Use of a person's name or photograph in an advertisement on television, on radio, in newspapers, in magazines, on the internet, on posters, on billboards, and so forth. -Display of a person's photograph in the window of a photographer's shop to show potential customers the quality of work done by the studio. -A testimonial falsely suggesting that an individual eats the cereal or drives the automobile in question. -Use of an individual's name or likeness in a banner ad or some other commercial message on a Web site. -The use of someone's likeness or identity in a commercial entertainment vehicle like a feature film, a television situation comedy or a novel.

V.A v. San Pasqual valley unified school district (Tinker example)

-V.A. wasn't allowed to take a knee at football games -Granted preliminary injunction that said school can't stop him from kneeling -Political speech, passive -considered Fraser, Hazelwood, and Tinker -Ultimately used Tinker

Stricklin v. Stefani

-W.D. N.C. 2018 -Speech provokes, not harm someone -At a concert that Plaintiff attended, in reserved seating. There were a lot of seats available. 20 mins into performance she asked people to fill in the closer seats. Plaintiff was terrified as crowd moved forward and she leaves her seat to escape. She couldn't get out and was trampled and pushed into a wall. She breaks her tibia (her leg). She sues Gwen Stefani for negligence. The plaintiff must show that Stefani owes her a duty of reasonable care, Stefani breached that duty, was an actual proximate cause of injury, and plaintiff suffered injury because of Stefani's inability to uphold responsibility. Her argument was that her speech was protected and was artistic expression. Court ruled that you can be held liable for negligence even if your speech falls into a category of protected speech. Rejects that it is artistic expression, because it was instruction.

Snyder v. Phelps

-Westborough Baptist church in Kansas. Believes that American soldiers are killed abroad because god doesn't like homosexuality/tolerance in America. Reverend Fred Phelps. -They picket/protest at soldier funerals, and make signs that say things such as "thank god for dead soldiers" "God hates America" "pray for more dead soldiers" -Snyder's son Mathew Snyder was a marine who died in war and Phelps and congregation went to his son's funeral. They stood 1,000 feet away from the funeral. Police told them to stand 1,000 feet away. Mr. Snyder doesn't see them until after the funeral ended and on the news that night. He decided to sue Phelps. Cause of action: intentional infliction of emotional distress and intrusion into seclusion. Sought monetary compensation. State reaches supreme court and question of whether or not first amendment protects the speech of Westborough Baptist church from tort liability of IIED. Phelps argued that his speech is protected and the Supreme court rules in favor of Phelps.

Deceased (unless survival statute—post mortem right of publicity)

-When you die, your ability to control right of publicity is passed down to someone in their will the same as property rights. -only in specific states

The right of publicity

-an attempt to remunerate individuals for the economic harm suffered when their name or picture is used for advertising or trade purposes, and they are not compensated for it. -People's name and likeness has an economic value and using it without permission is akin to theft. -Because the right of publicity protects a privacy right, normally only someone whose name and likeness has commercial value can successfully allege a violation of his or her right of publicity -It is possible in some states for celebrities and sports stars of well-known persons who have died to pass on their property right in his or her name to his or her heirs. Their heirs can sue for violation of the deceased's rights to publicity. For the rest of the people, their right to privacy dies out when they do. -one who appropriates to his/her own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy

Defenses to right of publicity violations

-consent -connected to newsworthy event/story -incidental use/booth rule -deceased (unless survival statute--post-mortem right of publicity)

The right of Privacy

-designed to protect an individual from the emotional damage that can occur when a name and likeness is used for commercial or trade purposes. For normal individuals -Leave me alone -Emotional tranquility -Appropriation

Supreme court opinion in Snyder v. Phelps

-the fact that the speech in question was matter of public opinion (although offensive) including "the political and moral conduct of the united states and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the catholic clergy." -The court reasoned that the church had the right to be where they were, 1,000 feet away from the church, out of sight of those in the church. The protest was not unruly. -Finally, the court said "as a nation we have chosen to a different course (than to punish the speaker of words that cause great sorrow or joy) to protect even speech on public issues to ensure that we do not stifle public debate.

Cohen v. California Study Questions

403 (volume number) U.S. (reporter) 15 (first page in which the case appears) 1971

Klen v. City of Loveland (2011

Building contractors Edward and Stephen Klen were upset at delays over the issuing of permits by city officials. They screamed profanity and insults at the city officials when they were frustrated with the delaying of permits. The 10th circuit court reasoned that although their language was not polite and insulting, there was no indication that their words were accompanied by provocative gestures or threats. Nor did their language necessarily make their outburst fighting words. They were expressing ideas, not trying to provoke a fight. Their decision illustrates the key point that offensive speech is not necessarily the same as fighting words.

Constitutional avoidance

Constitutional avoidance holds that if a court can resolve a case on statutory grounds without ever reaching the constitutional issue, then it should do so.

1. Why did Paul Robert Cohen land in trouble with the law? In other words, where was he? What was he doing? Why was he doing it? What law (statute) did he allegedly violate (and what was the specific portion of it he allegedly violated?) Was he convicted of violating the statute? What did Cohen do with his jacket when he entered the courtroom?

He was in a court room. He was wearing a jacket that said "F**k the draft" in protest to the Vietnam war. He allegedly violated the California Penal Code s 415, which prohibits "maliciously and willfully disturbing the peace or quiet of any neighborhood or person...by...offensive conduct...." He was convicted of violating the statue and sentenced 30 days imprisonment. He took off his jacket and folded it over his arm when he entered the courtroom.

Incitement to violence

Inciting someone to commit violent/unlawful conduct acts against other people

4. Explain why this is not a fighting words case.

It did not provoke violent reaction, the jacket did not say "f**k you," it was not personally abusive, "while the four-letter word displayed by Cohen in relation to draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not 'directed to the person of the hearer.'"

3. Explain why this is not an obscenity case.

It was not an erotic message; f**k was not used in a sexual sense.

Jason Olive

Jason Olive sued GNC (general nutrition center) when they used his name/likeness in ad after his consent expired. His contract expired and they admitted to using it without his consent. Got more than $1 million

Chaplinsky V. New Hampshire

Jehovah's witness called police officer a fascist and godd*mn racketeer. Chaplinsky was tried and convicted of violating a law that forbids offensive or derisive speech or name-calling in public. The supreme court upheld the conviction and Chief Justice Frank Murphy Outlined The Fighting words Doctrine.

Herseg v. Hustler magazine

Orgasm of death article written for educational purposes. Minor gets copy of issue and dies trying autoerotic asphyxiation. The mom sues for wrongful death. Hustler was not responsible for inciting this wrongful death.

Free speech in public high schools

Public -You had first amendment rights, they are not coextensive as your first amendment right outside of school Private -No first amendment rights or free speech, the principle bestows rights -This area of law is relatively new -1969 never explicit in court that public school students had first amendment rights

Vanna white

Samsung used a robot of Vanna white in an ad with a wheel of fortune board. Vanna sues and wins.

Predominate use test

Speech with a predominate artistic purpose is protected, while speech with a predominate commercial purpose is not.

Bell v. Itawamba County School board

Taylor bell made an off-campus rap about how teachers at Itawamba agricultural high school were sexually harassing several students. He mentioned activities on campus and specific names. The 5th U.S. circuit court of appeals ruled against him saying "a substantial disruption could have been forecast" and supreme court denied his request to hear the case.

K.A. v. Pocono Mountain school district

The Tinker test has the requisite flexibility to accommodate the age-related developmental, educational, and disciplinary concerns of elementary school students"

2. What is the free speech issue—the legal question—facing The united states supreme court on Cohen? HINT—the court takes a long time before it finally states the issue that it must address.

The free speech/legal question is "whether California can excise, as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary."

8. Based on your answer to question number 7, explain the definitional or legal line-drawing problem that this quote (the quote that correctly answers question no. 7) helps to illustrate specifically as it applies to one key word in the precise part of the statute that Paul Robert Cohen was accused of violating. Be sure, of course, to identify the key word from this statute, which is set forth early in the opinion.

This quote helps to illustrate that the word "offensive," as used in the California Penal Code s 415, is too vague to enforce. "...governmental officials cannot make principled distinctions in this area that the constitution leaves matters of taste and style so largely to the individual." The supreme court uses the void for vagueness doctrine.

Connecticut v. Baccala

Women verbally insulted manager of Western Union. Baccala said these are not fighting words because store managers are trained to take more verbal abuse. Supreme court of Connecticut overturned her conviction because it was "opinion" and government cannot prosecute Baccala based on opinion. Her words were not fighting words because of the Police exception