ch 3 mass law

USA patriot Act

uniting and strengthening america by providing appropriate tools required to intercept and obstruct terrorism act of 2001. act gave law enforcement agencies greater authority to combat terrorism placed a range of political organizing, activism, and speech within category of support for terrorism and expanded the power of law enforcement and investigative authorities

hess vs indiana -incitement test

used profane language at an anti vietnam war rally after officers moved demonstrators from street to sidewalk. arrested for disorderly conduct. but overturned holding that first amendment protected his comments because the words weren't intended to provoke imminent violation of law.

fighting words

words not protected by first amendment because they cause immediate harm or illegal acts

Cohen V California

anti war protest by cohen who wore jacket that said "**** the draft" 1971 convicted of disturbing the peace for "offensive conduct" and cohen appealed on first amendment grounds arguing that conviction targeted his pure political speech. gov can't ban words it found offensive unless the words fell into unprotected category such as obscenity or fighting words first amendment protected both content and emotional value of message

fighting words

by their very utterance inflict injury or tend to incite immediate breach of peace first amendment doesn't not protect words that are directed at an individual and automatically inflicts emotional harm or trigger violence

hate speech

category of speech that includes name calling and pointed criticism that demeans others on the basis of race color gender ethnicity religion disability etc RAV v city of st paul case

Chaplinsky vs New Hampshire 1942

chaplinksy was distributing jehovah witness pamphlets on streets of rochester and cop warned him to stop bc disturbing the peace. got arrested and called cop names like a damned racist so he got convicted under state law that made calling someone"any offensive derisive or annoying word in public in his presence" punishable. supreme court upheld this conviction reasoning that 1st amendment did not protect narrow categories of speech that made no contribution to discussion of ideas or search for truth. court said comments were unprotected fighting words

court tests to protect disruptive speech

clear and present danger test

CFAA

computer fraud and abuse act makes it illegal to use computer to commit crime or tort 22 states punish cyberbullying and seven of them make it criminal

virginia v black

court ruled that first amendment allows states to punish individuals who set crosses ablaze with intent to intimidate. court said laws may specific subset of fighting words such as cross burnings bc it constitutes true threat

incitement test continued

court said gov could forbid or punish advocacy of force only when advocacy was 1. directed to and was 2. likely to 3. incite or produce imminent lawless action requires a plaintiff to show that media content would result in violent or unlawful activity immediately after media exposure which is almost impossible to prove.

under inclusive

first amendment doctrine that disfavors narrow laws that target subset of a recognized category for discriminatory treatment

true threat

for speech to become punishable as true threat a speaker must direct threat toward one or more individuals with intent of causing listener to fear bodily harm or death

incorporation doctrine

fourteenth amendment concept that most of the bill of rights applies equally to the states limits power of state and local gov to abridge guarantees of bill of rights (prevents federal gov too)

negligence

generally the failure to exercise reasonable or ordinary care

viewpoint based discrimination

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

media incitement to harm

if court uses this test when mass medium is sued for creating physical harm the plaintiff rarely wins. its hard to convince courts that media intentionally encourage people to harm themselves or others ex: saying movie caused you to be violent

gitlow vs new york

man arrested as threat to us government who was manager of a branch of socialist party and oversaw publication literature urging class action to establish socialism in US -used this case to expand free speech protection by establishing incorporation doctrine

incitement test

new test that that drew a bright line distinction between advocating violence as an abstract concept and inciting imminent illegal or violent activity brandenburg v Ohio -court ruled that first amendment protects peoples rights to advice abhorrent ideas about social political and economical change. guy in KKK tv viewed and said highly offensive things like taking revengence against various leader in government first amendment doesn't protect speech that incites prompts or provokes immediate violence

symbolic speech

nonverbal expression in form of burning flags wearing armbands or marching through public streets is this deserves protection in some cases

as applied

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

tort

private civil wrong for which court can provide remedy in form of damages

RAV vs city of st paul

several white boys made a wooden cross and set it ablaze in yard of black family. convicted of violating a st paul Minn statute that punished display of symbols or objects such as a burning cross that arose anger alarm or resentment in others on basis of race color genre religion etc. conviction upheld reasoning that bias motivated crime statute punished only unprotected fighting words and supreme court reversed. ordinance was unconstitutional but justices didn't agree on why

true threat

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

morse v frederick

substantial disruption rule established in tinker was not only proper test for restricting student speech bong hits for jesus banner during school field trip. he did it for laugh and to get on TV. he got suspended for violating school policy that banned advocacy of illegal drug use. frederick sued alleging principle violated his free speech but court sided with principal then court of appeals reversed it and said schools cannot punish and censor non disruptive speech by students at school sponsored events 5-4 ruling supreme court sided with principal and ruled that schools may prohibit messages that advocated illegal drug use

elonis vs US

supreme court avoided first amendment question of when internet posts constitute true threats punishable by law. man made fb threats to estranged wife and said he did not intend any threats and was composing threutputic rap lyrics to express his depression and frustration after wife took children and left him 8-1 decision court relied on statutory construction to conclude only that a conviction for threats online requires showing that defendant intended to violate law and make true threat.

Tinker vs Des Moines Independent Comm School Distrcit

1969 involving anti war protest that began when siblings wore black armbands which protested vietnam wa. didn't disrupt classes but school suspended them for violating new policy prohibiting black armbands students sued for free speech courts established the school classroom as a location that is peculiarly the marketplace of ideas where speech may be regulated only to prevent substantial disruption to school activities

brown vs entertainment merchants association

2011 occurred when supreme court struck down california law that banned sale of violent video games to children. court said ban violated first amendment bc games like books and movies "communicate ideas"

united states vs stevens

supreme court denied congress the power to exclude images of animal cruelty from first amendment protection. stevens convicted under federal animal crush video prohibition act for trafficking in "depictions of animal cruelty" he sold videotapes of dog fights law was struck down as over broad bc it penalized speech that did not fit in within a recognized first amendment exception violent or disturbing images deserve full first amendment protection

texas v johnson

supreme court held that law failed to pass strict scrutiny bc it served no compelling interest and did not use least intrusive means to advance goals -strike down texas law that made it crime to burn flag bc it preserved symbol of unity and breach of peace. but johnson argued that it was freedom of speech.

foreseeability

to determine whether a defendant had duty to plaintiff courts often asks whether defendant should have foreseen the plaintiffs injury meaning if person anticipated such an action would cause harm the person had duty to protect others ex columbine shooting sued video games for shooters copying the game but rejected this because media did not have obligation to protect the victim bc they couldn't not foresee illegal actions

whats not authorized by patriot act

NSA surveillance and collection of us telephone call data

media liability for negligence

to win lawsuit for injury caused by media negligence, the plaintiff must prove breach of medias duty of care because content posed a 1. reasonable foreseeability of harm 2. proximate (directly related) cause of harm

clear and present danger test

Schenck vs US (socialist ho mailed anti draft pamphlets to men encouraging them to reject pro war philosophy and oppose US participation in WW1 clear and present danger to national security abrams vs US too flexible needed something else--> incitement test

duty of care

determined whether the medias actions were proximate cause of a harm thats a reasonable person would have foreseen. (proximate cause is the most difficult element to prove)

proximate cause

determining whether it is reasonable to conclude the defendants actions led to plaintiffs injury ex: boy committed suicide listening to ozzy osbournes song suicide solution so parents sued but courts said there was no direct connection between suicide and lyrics as song was written years before

chilling effect

discouragement of constitutional right especially free speech by any government practice that creates uncertainty about proper exercise of that right arises from a government policy that discourages the exercise of a constitutional right brought about by any measure that deters freedom of expression

clear and present danger

doctrine establishing that restrictions on first amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm