CMCN 385 SP19

Ashcroft v. Free Speech Coalition PP

(1) Lifts prohibition on the production of "virtual" child pornography that appears to depict minors but is actually produced with computer graphics or using youthful-looking actors (2) a prohibition on advertising material "in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct." Overly broad language that does not protect children

Gonzales v. UDV (2006)

*Issue*: Does the Religious Freedom Restoration Act protect the right of a small religious group to engage in the sacramental use of hoasca tea, which contains a hallucinogenic substance that is banned by the Controlled Substance Act? (*Free Exercise of Religion*) *Date*: 2006 (Roberts Court; 8 to 0; Alito did not participate) *Case Summary*: The Religious Freedom Restoration Act of 1993 says that the federal government may not substantially burden a person's exercise of religion, even if the burden applies to everyone, not just one religion. The only exception recognized by the statute requires that the government satisfy the compelling public interest test. The Controlled Substances Act regulates the importation, manufacture, distribution and use of psychotropic substances. Central to the UDV's faith is receiving communion through hoasca, a sacramental tea which contains hallucinogens that are banned by the Controlled Substances Act. In 1999, a customs inspector intercepted a shipment of hoasca. The UDV filed suit asking that the hoasca be released for use and that future shipments not be intercepted so that its members could continue to practice their faith. *Rule of Law/ Precedent Set*: Compelling Public Interest. *(1)* Needs of the religion *(a)* Need to take drug in order to talk to their god. *(2)* Needs of society *(a)* Protecting the health and safety of UDV members *(b)* Possible risks if drug is used for recreational use *(c)* Having uniform application of drug laws Government failed to provide a compelling public interest, the hallucinogen was only taken during religious ceremonies. Moreover, granting an exception to the US branch of this religious sect would not drastically impair the application of the federal drug law. *dicta*: If the specific hallucinogen is used for recreational use then the issue must be revisited.

Burstyn v. Wilson (1952)

*Supreme Court ruled that motion pictures are a medium for communication of ideas and thus protected by the First Amendment *Thus, a state could not stop a film from being shown simply because it deemed the movie "sacrilegious"

Gertz v. Welch (1974)

- A police officer shoots and kills a young man in Chicago, IL - Family sues the police department, Elmer Gertz is hired as the lawyer for the family - Robert Welch, publisher for The American Opinion, publishes article calling Gertz a communist - Gertz wins at trial, but on appeal he is ruled a public figure and must prove actual malice - Appeals to Supreme Court - 5-4 decision in favor of Gertz - Gertz did nothing to seek public figure status: Because of this, he does not have to prove actual malice - Gertz won $100,000 damages on retrial: Then prove actual malice, and won $300,000 in punitive damages (message from court to that person saying you damaged a person's reputation - went above and beyond proving negligence then you proved actual malice) - Key assertions from this case: Public officials are less likely, compared to private, to win libel suits -Gurtz win; we remove and gave back private status -private figures did not lose their protection when they got involved with public stuff

Rogers v. Grimaldi (1989)

- An artist sued Grimaldi and MGM saying that a movie titled Ginger and Fred was published in false light, and also violated her right to publicity - The federal court ruled against her, and also established the Rogers Test - This test looks at the disputed work, and determines whether the mention or use of the celebrity likeness had no artistic relevance to the work - The court ruled that the artists were protected under the First Amendment because mentioning and using Rogers' likeness was imperative to the movie - By applying the Rogers Test, courts found the opposite for Outkast and awarded Rosa Parks damages

Ginsberg v. New York

- Established the principle of variable obscenity - Sam Ginsberg convicted for selling minors "girlie" magazines that had not been found to be obscene for adults - Did not apply the average-person standard - Court required no scientific proof of harm to children - Brennan: State might bar materials as obscene if they appeal to the prurient interests of minors, provided the materials also meet the other criteria of obscenity - Court required that law defining what is obscene to minors have a "rational relation to the objective of safeguarding... minors from harm."

White v. Samsung (1992)

- Samsung commercial shows a robot with a blonde wig turning letters on a board like Vanna White does on the Wheel of Fortune - Vanna White was awarded $403,000 because the commercial made it appear as if though Vanna White was endorsing the product (appropriation) The law protects the celebrity's sole right to exploit this value whether the celebrity has achieved fame out of rare talent, luck, or some combination thereof.

Associated Press v. Walker (1967)

- The AP reported that Edwin Walker, a retired major general, took command of a violent group of protestors and directed them to charge federal marshals at the University of Mississippi - The AP published this report immediately after confirming from other sources - Walker, however, did the exact opposite - Walker sued for libel and won around $500,000 - Walker and Butts were consolidated and decided in one opinion -applied "actual malice" test to retired Army General who led anti-integration demonstrations at the University of Mississippi. -found Associated Press had not shown "actual malice" in reporting on Walker's participation in march as it was happening when the information was received from experienced, trustworthy correspondent.

Ashcroft v. Free Speech Coalition (2002)

- The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." - The Free Speech Coalition, an adult-entertainment trade association, and others filed suit, alleging that the "appears to be" and "conveys the impression" provisions are over-broad and vague and, thus, restrain works otherwise protected by the First Amendment. -In a 6-3 decision (in favor of FSC) delivered by Justice Anthony M. Kennedy, the Court held that the two prohibitions described above are overbroad and unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition.

Dietemann v. Time Inc. (1971)

- US Court of Appeals for the 9th Circuit ruled that A.A. Dietemann, disabled veteran, a quack doctor, could collect damages from Time, Inc, for invasion of his privacy by two Life magazine employees who secretly used a voice transmitter and camera in the doctor's den - They used false names to enter his house as he used hocus pocus methods to 'heal' them and they recorded the whole thing - First Amendment is not a license to trespass, steal, or intrude by electronic means into the precincts of another's home or office

Davis v. Massachusetts (1897)

-An ordinance in the City of Boston prohibited any person from making "any public address" on public grounds without permission of the mayor. In 1894, Rev. William F. Davis attempted to preach in Boston Commons, a public park. Davis was arrested, fined, and jailed for violating the ordinance. Davis appealed his conviction, arguing, in part, that the Fourteenth Amendment Due Process Clause's protection of property entailed a right to access public property. -Did Davis' arrest for violating the city ordinance banning addresses on public property violate his due process rights under the Fourteenth Amendment's protection of property? -The Court agreed with the lower court's conclusion that the legislature and the state had the power to exercise authority over public property, the Fourteenth Amendment notwithstanding. "The Fourteenth Amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control."

Libel or Sander

-Communication that exposes persons to hatred, ridicule or contempt -Lowers them in the esteem of others -Causes them to be shunned -Injures them in their personal business or calling

Sources of law

-Constitutions (Bill of Rights) Highest Source of Law -Statutory law (local, state, federal) -Common law (judge made law) -Equity law (where no law applies) -Administrative law (agencies) -Executive Actions (president)

Purpose of defamation law

-Designed to protect reputation. -Good name is precious property. -Public redress by peaceful means.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

-In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. -Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA) -Does the application of Colorado's public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? -The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause. The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression.

Prosser's Four Torts of Privacy

-Intrusion on solitude or seclusion -Appropriation one's name or likeness -Private Facts embarrass by public disclosure -False Light portrayal that is offensive

Beauharnais v. Illinois (1952)

-Libel case; Beauharnais put out anti-negro leaflets petitioning Chicago government officials to halt the encroachment, harassment, and invasion of white people and call whites to unite against the violence perpetrated by African-Americans -He was convicted under a state law that prohibited libel against any class of citizens of a certain race, color, creed, or religion if it might cause unrest or a breach of the peace. - Did Beuharnais' conviction under the Illinois statute violate his constitutional right to free speech under the First and Fourteenth Amendments? -In a 5-4 opinion (in favor of Illinois) authored by Justice Felix Frankfurter, the Court concluded that Beuharnais' speech amounted to libel and was therefore beyond constitutional protection. Citing the racial tensions of the day, the Court characterized Beuharnais' speech as provocative.

Boy Scouts of America v. Dale (2000)

-Private organizations' First Amendment right of expressive association allows them to choose their own membership and expel members based on their sexual orientation even if such discrimination would otherwise be prohibited by anti-discrimination legislation designed to protect minorities in public accommodations. Boy Scouts of America were allowed to expel any member who was discovered to be homosexual. -New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. -Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders? -Yes. In a 5-4 opinion (in favor of the Boy Scouts) delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association."

Cox Broadcasting v. Cohn (1975)

-Rape victim Cynthia Cohn was identified in public records and Cox used her name in its coverage of her assailant's trial -Her father sued under Georgia law that made it illegal to publish the name of a rape victim - Court stated that there is a Constitutional right to publish truthful info obtained in most public records and therefore Cox was allowed to broadcast Cohn's name -unanimous decision

Engal v. Vitale

-Ruled that it is unconstitutional for state officials to compose an official school prayer and encourage its recitation in public schools. -"...[E]ven if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited" it is unlawful to impose it in school.

United States v. Williams (2008)

-Special agent pretending to be a female on a chat room (Lisa)...caught father selling pictures of his daughter -Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography -Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography. -Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography? -No. Justice Antonin Scalia, writing for a seven-Justice majority, held that the statute was not overly broad as written. Justice Scalia noted specifically that offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. He also stated that the law did not violate Due Process because its requirements were clear and could be understood by courts, juries and potential violators.

Perry Education Association v. Perry Local Educators' Association (1983)

-The Perry Education Association (PEA) won an election against the Perry Local Educators' Association (PLEA) to serve as the sole union representing teachers in Perry Township, Indiana. As part of the collective-bargaining agreement reached between PEA and the Board of Education of Perry Township, PEA obtained exclusive rights to use the internal school mail system and PLEA was denied access. PLEA contended that denying their members use of the mail system violated the First Amendment and the Equal Protection Clauses of the Fourteenth Amendment. -Does a local school board violate the First Amendment by disallowing a nonofficial teachers union from using its internal school mail system? -NO; Since the mail system was not a "public forum," PLEA had no unassailable right to access it.

Watch Tower Bible and Tract Society v. Village of Stratton ( 2001)

-The Village of Stratton promulgated an ordinance that prohibits canvassers from entering private residential property to promote any cause without first obtaining a permit from the mayor's office. The Watchtower Bible and Tract Society of New York, Inc., a congregation of Jehovah's Witnesses that publish and distribute religious materials, brought an action for injunctive relief, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. -Does a municipal ordinance that requires a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse? -Yes. In an 8-1 opinion delivered by Justice John Paul Stevens, the Court held that the ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills.

Employment Decision v. Smith (1990)

-Two counselors for a private drug rehabilitation organization ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." -Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? -Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate.

lemon test

1.Law must have a Secular Purpose 2. Effect cannot advance or inhibit religion. 3. Cannot Entangle government in religion.

Bill of Rights

1.Religion, speech, press, assembly, petition 2.Keep and bear arms 3.No soldier quartering 4.No unreasonable search and seizure (probable cause) 5.No self-incrimination; no double jeopardy; due process before forfeiting life, liberty or property 6. Speedy & public trial, legal counsel 7. Trial by jury 8. No cruel or unusual punishment nor excessive bail 9. No denial of rights not enumerated in the Constitution 10. Powers not delegated to the federal government belong to the states and people

Early America Religion

1779, Thomas Jefferson wrote the Act for Establishing Religious Freedom. 1775, James Madison wrote Memorial and Remonstrance against Religious Assessments -Argued that state-sanctioned churches violate freedom of conscience, corrupt religion, and result in persecution. Led to the Virginia Statute for Religious Freedom.

Olmstead v. US (1928)

1928, the government can tap your phone without a warrant.

Dennis v. United States (1951)

1951, made it illegal to advocate or teach the overthrow of the government by force or belong to an organization with this objective. (upheld the Smith Act of 1940) -Did the Smith Act violate the First Amendment? -In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment.

New York Times v. Sullivan (1964)

1964; established guidelines for determining whether public officials and public figures could win damage suits for libel. To do so, individuals must prove that the defamatory statements were made w/ "actual malice" and reckless disregard for the truth -During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. -Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? -In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel.

Osborne v. Ohio

1990 - The courts found the interest of children strong enough to ban personal possession of child porn despite the fact that obscenity does not justify intrusion into ones home. This is because the ban on child porn is intended to protect the children who are exploited, not the viewers morals. -After obtaining a warrant, Ohio police searched the home of Clyde Osborne and found explicit pictures of naked, sexually aroused male adolescents. Osborne was then prosecuted and found guilty of violating an Ohio law that made the possession of child pornography illegal. -Did Ohio's ban on the possession of child pornography violate the First Amendment? -no

Roth v. US

A 1957 Supreme Court decision ruling that "obscenity is not within the area of constitutionally protected speech or press."

Miller v. California (1973)

A 1973 Supreme Court decision that avoided defining obscenity by holding that community standards be used to determine whether material is obscene in terms of appealing to a "prurient interest" and being "patently offensive" and lacking in value. MILLER TEST 1.Whether the average person, applying contemporary community standards, would find the work, as a whole, appeals to the prurient interest. 2. Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by state law. 3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Van Orden v. Perry (2005)

A Ten Commandments monument erected on the grounds of the Texas State Capitol did not violate the Establishment Clause because the monument, when considered in context, conveyed a historic and social meaning rather than an intrusive religious endorsement.

Hicklin Rule

A long-standing obscenity standard based on whether a book or other item contains isolated passages that might deprave or corrupt the mind of the most susceptible person.

Memoirs of a Woman of Pleasure v. Massachusetts (1966)

A special provision of Massachusetts law allowed the Attorney General to initiate legal proceedings against an "obscene" book, Memoirs of a Woman of Pleasure. The book, also known as Fanny Hill, was written by John Cleland in about 1750. Massachusetts courts, despite the defenses put forward by the book's publisher and copyright holder, judged the work to be obscene. -Did the actions of Massachusetts violate the First Amendment? -The Court held that the Massachusetts courts erred in finding Memoirs of a Woman of Pleasure to be obscene. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not "utterly without redeeming social value." The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were "patently offensive."

Morse v. Frederick (2007)

A student at a local high school hung up a banner saying "Bong Hits 4 Jesus" which advertises the use of marijuana. The principal ordered that the banner be taken down and the student be suspended. Result: School officials can prohibit students from promoting the use of drugs and does not violate the student's 1st A rights. A decision was not reached about whether Morse was immune to being sued, being a school official. Case is similar to Hazelwood.

Hazelwood School District v. Kuhlmeier (1988)

Affirmed that school administrators could censor official school publications

Lemon v. Kurtzman (1971)

Allowed states to provide textbooks and busing to students attending private religious schools. Established 3-part test to determine if establishment clause is violated: nonsecular purpose, advances/inhibits religion, excessive entanglement with government. -Supreme Court rules unconstitutional taxpayer assistance to parochial schools because it creates an entanglement between Church and State. Court used three factors - the Lemon Test - to determine the constitutionality of contested government laws and programs.

Wisconsin v. Yoder (1972)

Amish people refused to send their children to school past the 8th grade when the state required public schooling for all children until age 16. -Result: This law is in conflict with the Free Exercise clause. The statute is in direct conflict with Amish beliefs. The Amish may teach themselves.

Article VII- Unanimous approval not required

Article Seven calls for ratification by only nine States "sufficient for the Establishment of this Constitution between the States." New Hampshire was the 9th State to ratify the Constitution June 21, 1780. Rhode Island was last on May 29, 1790. All 13 colonies approved it and formed the United States of America.

Article VI- Supreme law of the land

Article Six designates the Constitution as the Supreme Law of the land. Meaning even state governments and their constitutions are subordinate to it. Forbids a Religious Test for holding public office. Office holders must vow to support And defend the U.S. Constitution.

NAACP v. Alabama (1958)

Association membership lists can be secret -In an opinion authored by Justice John M. Harlan II, a unanimous Court decided in favor of the petitioners, holding that "Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment." Further, the Court held that freedom to associate with organizations dedicated to the "advancement of beliefs and ideas" is an inseparable part of the Due Process Clause of the Fourteenth Amendment. Justice Harlan concluded that the state's obtaining the names of the Association's membership would likely interfere with the free association of its members, so the state's interest in obtaining the records was superseded by the constitutional rights of the petitioners.

Hurley v. Irish-American GLBG of Boston (1995)

BACKGROUND: GLBG kicked out of St. Patrick's Day Parade in Boston (Coordinated by Hurley) but City of Boston forced Hurley to admit GLBG. SC sided with Hurley, groups do not have to admit everyone/ anyone. LEGAL PRINCIPLE: Expressive Association -Did a Massachusetts State Court's mandate to Boston's Veterans' Council, requiring it to include GLIB members in its parade, violate the Council's free speech rights as protected by the First and Fourteenth Amendments? -Yes. A unanimous court held that the State Court's ruling to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech subordinate to the public accommodation requirement. Such an action "violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."

Regina v. Hicklin (1868)

Case about speech or print to deprave the mind landmark case -1. Defined as tendency of the material is to "deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." 2. Effect of "isolated passages" on the "most susceptible person."

Roberson v. Rochester Folding Box Co. (1902)

Case where girls face was used on a flour company's box without her permission. However, the state court did not recognize a right to privacy. This led to several states adopting appropriation statutes prohibiting unauthorized commercial use of a person's name, portrait, or picture as a violation of a right to privacy. -YES. In 1903, New York made the use of a name, portrait, or picture of any person for advertising or "trade purposes" without the person's consent an illegal invasion of privacy.

Commercial Appropriation: Two Torts

Commercialization: When a person who wishes to maintain privacy has his or her name, picture, likeness or voice used without permission for commercial purposes. Right of publicity: Someone who seeks celebrity status, but finds his or her name, picture, likeness or voice are used without permission for commercial purposes. This right raises the question of diminished economic value.

Grayned v. Rockford (1972)

Compatible Use "Time, place and manner" phrase coined in this case. • Student protest violated a city anti-noise and anti-picketing ordinance. • Supreme Court upheld the anti-noise ordinance, but struck down the picketing rule. • Decision created the compatible use doctrine. Test to see if the speech is compatible with the normal activities of the particular place.

City of Boerne v. Flores (1997)

Congress CANNOT pass laws that restrict church building -Religious Freedom Restoration Act would NOT be incorporated to apply to individual states -Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation." Assoc. Justice Anthony Stevens

Public Disclosure of Private Facts:

Court asks if there was Publicity Identifying Intimate Facts Court asks if the depiction was Highly Embarrassing to a Reasonable Person Court asks if there was No Legitimate Interest by the Public Newsworthiness privilege "swallows" the tort based on the First Amendment defense

Appropriation name or likeness proof:

Court asks if there was Use of Personal Images, Likeness, or Name • Court determines that No Permission was given for the use of the personal images, likeness, or persona • Court asks if the use was for advertising and/or publicity • Court asks if the Injury is financial or emotional

County of Allegheny v. ACLU (1989)

Court declared the nativity scene unconstitutional and the menorah constitutional to be on public display based on where the items were located

Santa Fe ISD v. Doe (2000)

Court extended the ban to school-organized student-led prayer at high school football games.

Three kinds of False Light

Distortion Text or photos appear out of context Embellishment Seemingly innocuous additions Fictionalization Change of details to "protect the innocent" Some changes may be offensive, even defamatory.

time v. hill PP

Established 1st Amendment principle of False Light defense in privacy actions • "The risk of this (personal) exposure is an essential incident of life in a society which places a primary value on freedom of speech and press."

Paris Adult Theatre I v. Slaton (1973)

Established 1st Amendment principle that state governments could prosecute obscenity presentations in public places. Decision recognized "legitimate state interests at stake in stemming the tide of commercialized obscenity..." -In a 5-to-4 decision, the Court held that obscene films did not acquire constitutional protection simply because they were exhibited for consenting adults only.

Comedy III, Inc. v. Gary Saderup Inc (2001)

Fails the transformative test. In Court's opinion, Saderup's artwork created a "conventional portrait," and was not protected by the right of free speech. No transformative value found in the lookalike drawings.

Reynolds v. US (1878)

First Amendment/Free Exercise Clause - the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief. -Mormon church

Law of the 12 Tables

Foundation of Roman law. According to this law, anyone who slandered another and injured his reputation would be beaten with a club

Hague v. Committee for Industrial Organization (1939)

Freedom of assembly -The Committee for Industrial Organization (CIO) gathered in New Jersey to initiate a recruitment drive. Police shut down the meeting based on a city ordinance that forbade labor meetings in public. Arguing that the ordinance violated the First Amendment protection of freedom of assembly, the CIO filed suit against several city officials -Public forums, such as parks, sidewalks, and streets, have broad First Amendment protections because of their traditional function as places for community interactions.

Bethel School District v. Fraser (1986)

Gave public school officials the authority to suspend students for speech considered to be lewd or indecent -U.S. Supreme Court supports Bethel High School holding it did not violate the free speech rights of Matthew Fraser by suspending him for making a sexually suggestive nomination speech for a fellow classmate

Tinker v. Des Moines (1969)

Guaranteed a student's right to protest (wearing armbands). -Neither students nor teachers "shed their constitutional rights to freedom of expression or speech at the schoolhouse gate." -DISRUPTION TEST -Is it a serious, physical disruption? Is there a reasonable forecast of disruption caused by the communication?

Burwell v. Hobby Lobby (2014)

Held that closely held corporations have religious rights under the Restoration of Religious Freedom Act and that they could be exempt from Federal laws under religious freedom grounds if there was a less restrictive means for accomplishing the purpose of the regulation or law. -Under the Patient Protection and Affordable Care Act (ACA), employment-based group health care plans must provide certain types of preventative care, such as FDA-approved contraceptive methods. While there are exemptions available for religious employers and non-profit religious institutions, there are no exemptions available for for-profit institutions such as Hobby Lobby Stores, Inc. -Hobby Lobby sued Burwell (secretary of health dept) for violating the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA) -Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company's owners? -Yes. Justice Samuel A. Alito, Jr. delivered the opinion for the 5-4 majority. The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. Because the contraception requirement forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government's interests.

Snyder v. Phelps (2011)

Held that hateful speech is still protected under the First Amendment. -The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words." -Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? -Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability.

Article I- Legislative Branch

House of Representatives and Senate form the CONGRESS MAKE LAWS MONEY for the nation's budget RAISE A MILITARY and DECLARE WAR CHECK AND BALANCE other two branches

Four Elements of Intrusion Tort

Intentional Intrusion on a place where there is a... Reasonable Expectation of Privacy that is... Highly Offensive to a Reasonable Person. Defense is Consent: Express or Implied

Time, Inc. v. Hill (1967)

James J. Hill and his family were taken hostage by 3 escaped convicts in their home in 1952 Novelist Joseph Hayes published a novel about a family being taken hostage in their home Later turned into both a play and a movie Significant differences between the book and the real experiences Life Magazine published an article in which it reviewed the play and stated that it was based on the Hill family incident and Hill sued for invasion of privacy -Supreme Court ruled that a person involved in a matter of public interest can not win a false light privacy suit unless they could show that a false hood was published either knowingly or with reckless disregard for the truth Actual Malice standard

Public Disclosure of Private Facts:

La. Revised Statutes 46:1844 Confidentiality of crime victims who are minors and victims of sex offenses. "all public officials and officers all law enforcement agencies, sheriffs, district attorneys, judicial officers, clerks ... "...shall not publicly disclose the name, address, or identity of crime victims who at the time of the commission of the offense are minors under eighteen years of age or of victims of sex offenses."

strict scrunity test

Law must be justified by a Compelling Public Interest, national security, health and safety, life and liberty, and constitutional rights of citizenship. Law or policy must be narrowly tailored to achieve that goal or interest - least restrictive means. Intermediate scrutiny and rational basis test for lesser interests.

Sexting LAW in Louisiana

Louisiana Children's Code article 804 created the felony crime of sexting in Louisiana Revised Statute section 14:81.1.1. "No person under the age of seventeen years shall knowingly and voluntarily use a computer or telecommunication device to transmit an indecent visual depiction of himself to another person." Does not involve adults, however. Penalty is maximum six months in jail, a $500 fine or both.

McAndrews v. Roy (1961)

Louisiana case decided in favor of the plaintiff whose ten-year old body in Before-After pictures caused anguish, even though he had given permission to use it.

Denis v. Leclerc (1811)

Louisiana court suggested it was "tortious" to publish in the newspaper a personal letter without the author's permission (privacy-sensitive language)

Everson v. Board of Education (1947)

Maintained that although public funds could be used to bus children to parochial (RELIGIOUS) schools, the wall separating church and state must be kept high and strong. -state money used to provide school buses for children going to private schools; since equal tax dollars were spent to bus public school kids, the Supreme Court approved of it. -also incorporated the establishment clause of 1st amendment to the states

Sticks and Stones of Defamation?

Media costs Damages in dollars SLAPP Initiatives = Strategic Lawsuits Against Public Participation

Public Nuisance Laws

Mostly used against places where sexual conduct takes place Also used against public display of nudity [e.g., magazine covers] Truly "expressive" activities might be permitted

14th Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Freedom Restoration Act (1993)

No religious exemption will be given to a neutral law if government can show it promotes a compelling purpose. RFRA requires strict scrutiny when a neutral law of general applicability substantially burdens a person's free exercise of religion.

Fault

Not strict liability Negligence or malice Actual malice - publisher had actual knowledge of falsehood but showed a reckless disregard to the false nature of the statement. Private persons have to meet an easier burden of proof than public figures

The Roth Test

Obscene material is material which deals with sex in a manner appealing to prurient interest" • Prurient Interest - refers to sexually oriented thoughts that are shameful or morbid.

Injury

Out-of-pocket money loss Reputation impairment Loss of standing in community Social injury (loss of consortium

Hustler Magazine v. Falwell (1988)

Parody is not an actionable offense -A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed. -Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? -unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.

Matal v. Tam (2017)

Patent and Trademark Office denied application for trademark of the name "The Slants" a band in which Simon Tam is the lead singer. U.S. Supreme Court ruled in June, 2017 that Lanham Act provision prohibiting the issuance of disparaging trademarks violates the First Amendment. With this ruling Redskins should be able to have trademark reinstated. -Tam wins

Identification

Plaintiff's name unnecessary -- Photos, titles, sketches, initials, other inferences can be used -- Witnesses say, we know who it is even in FICTIONAL works

Stanley v. Georgia (1969)

Police searched Robert Stanley's home looking for bookmaking materials, but they instead found pornographic films and arrested him for possessing obscene materials in violation of Georgia law Court overturned the conviction and ruled that there is a constitutional right to possess and use even obscene materials in the privacy of one's home

The Crime of Variable Obscenity

Pornography (not necessarily obscene) can be prosecuted if: sold to children can be a crime aimed at a specialized target audience pandering (solicitation, promotion, or recruitment)

Stone v. Graham (1980)

Posting 10 Commandments at school is unconstitutional -U.S. Supreme Court ruled that a Kentucky state law requiring public schools to post the Ten Commandments violates the First Amendment.

Structure of the Constitution

Preamble • Article I: Legislative Branch • Article II: Executive Branch • Article III: Judicial Branch • Article IV: Relations Among the States • Article V: Amendment Process • Article VI: Federal Power • Article VII: Ratification • Amendments: - Bill of Rights + 17

Article II- Executive Branch

President swears to "faithfully execute" his responsibilities and "preserve, protect and defend the Constitution..." Manages day-to-day operations of U.S. government through federal departments and agencies. Makes treaties with other nations. Appoints office holders: federal judges, agency heads, and Ambassadors. Serves as Commander in Chief.

Steps in False Light Litigation

Public Identification of False Facts Could be positive or negative information Highly Offensive to Reasonable Person Must have some harmful impact on person Fault -- Actual Malice or Negligence Public persons show reckless disregard Private persons show negligence Defenses are Truth/Privilege/Comment Reflects the similarity with libel actions

DEFENSES of APPROPRIATION TORT

Public domain or incidental use - public records, widely disseminated, posted online, insignificant use. Consent - explicit or implied approval given (not protected from other uses) First Amendment - parody and satire based on transformative value, or news value based on public interest in celebrities and famous names. Rogers test (Rogers v. Grimaldi) No artistic relevance: Use of a plaintiffs name or likeness in an expressive work is protected unless it is "wholly unrelated" to the work or is "simply a disguised commercial advertisement for the sale of goods or services".

Lee v. Weisman (1992)

Public schools may not have clergy lead prayers at graduation ceremonies at middle schools

PIDIF - DD

Publication Identification Defamation Injury Fault Defenses Damages

Louisiana Criminal Defamation Law

R.S. 14:47 Defined as "...the malicious publication or expression in any manner... "To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or "To expose the memory of one deceased to hatred, contempt, or ridicule; or ... "To injure any person, corporation, or association of persons in his or their business or occupation." PENALTY: Maximum 6 months and $500.00

Article IV- States Rights

Relationship between States and the federal government, promises protection from foreign or domestic violence. • Guarantees a republican form of government. •Determines how new states can join the Union. • All states owe each full faith and credit to the laws and the judicial decisions made by other state court systems

New York v. Ferber (1982)

Relative to child pornography provides that material which exploits children under 16 can be banned even if it does not meet the Miller test for obscenity. . . . applies to live performances and depictions of live performances, not written or drawings. -2 boys masturbating - called it art

Cantwell v. Connecticut (1940)

Religious speech is protected, even from door to door, and cannot be regulated, as it would violate the 1st and 14th amendments -declared government cannot make evangelists get a license before they share their personal beliefs. -a state may not, by statute, wholly deny the right to preach or to disseminate religious views." A state can regulate the time, place, and the manner of soliciting upon its streets and may in other respects safeguard the peace, good order and comfort of the community.

Republications

Republications are actionable too, with exceptions: Wire services, bookstores, some internet service providers Neutral Reportage and FAIR REPORT defenses

Defamation

Reputation (damage to profession or personal) Contempt and ridicule (humiliation) Hatred (shunned Libel-proof" plaintiffs (Criminals, Pornographers, Dare-devils and Death dealers

Appropriation - Privacy Tort

Right of Publicity/ Commercial Misappropriation -- Name or Likeness

Grisworld v. Connecticut (1965)

Ruled that the Constitution did guarantee certain zones of privacy -Established principle of "penumbra" of privacy rights based on First, Fourth, Fifth, and Ninth Amendments (deny or disparage other rights) -is a landmark case in the United States about access to contraception. The case involved a Connecticut "Comstock law" that prohibited any person from using "any drug, medicinal article or instrument for the purpose of preventing conception."

Milder v. Ford Motor(1988)

Ruling: "when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

Employment Division v. Smith PP

SCOTUS held that Free Exercise clause did not provide a right to religious exemptions from a "valid and neutral law of general applicability." -"To permit this, would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Katz v. United States (1967)

SCOTUS ruled that the government must have a warrant to tap your phone or video record you -telephone booth

Racketeering Statutes

Selling obscene works twice in ten years is the trigger for federal RICO (Racketeer Influenced and Corrupt Organizations Act). Punishments can include: Major fines plus 20 years in jail Forfeiture of assets, including private property

Lane v. Sabine Parish School Board (2014)

Sixth grade teacher instructed students that evolution is not a valid scientific theory because God made the world 6,000 years ago as Bible indicates. Rewarded bonus points to students for referring to the "Lord" on her tests. Buddhist parents sued for violation of First Amendment rights, and settled for transportation costs to allow their children to attend non-discriminatory school district.

Simon & Schuster v. Crime Victims Board (1991)

Sons of Sams Law -To keep criminals from profiting from crimes by selling their stories, New York State's 1977 "Son of Sam" law ordered that proceeds from such deals be turned over to the New York State Crime Victims Board. The Board was to deposit the money into escrow accounts which victims could later claim through civil suits. In 1987 the Board ordered Henry Hill, a former gangster who sold his story to Simon & Schuster, to turn over his payments from a book deal. -Did the Son of Sam law violate the free speech clause of the First Amendment? -Yes. The Court concluded that "New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income.

Video Software Dealers Association v. Schwarzenegger (9th Cir. 2009)

State attempted to apply to violent video games standards that govern "obscenity as to minors," but failed strict scrutiny test of compelling interest; scientific evidence weak.

R.S.14§283.2. Nonconsensual disclosure (Revenge Porn Law)

State crime to intentionally disclose without consent an image where intimate parts are exposed in whole or in part ... "intimate parts" also means a partially or fully exposed nipple, including exposure through transparent clothing." Penalty: Up to $10,000 and/or two years in prison

Wallace v. Jaffree (1985)

Strikes down an Alabama law that allowed teachers to conduct religious prayer services and activities during the school day.

Edwards v. Aguillard (1987)

The Court ruled that Louisiana could not force public schools that taught evolution to also teach creationism. -Louisiana statute requiring creationism AND evolution taught in public schools struck down as unconstitutional. Court held it gave support for "creation science" above and beyond that given to evolution science; advanced a religious belief; held no secular purpose.

United States v. O'Brien (1968)

The court upheld the law prohibiting the burning of draft cards, ruling that it was not "symbolic speech" -David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. -Was the law an unconstitutional infringement of O'Brien's freedom of speech? - 7 to 1 decision in favor of the United States

Publication

Third person heard it -- Broadcast or Internet dissemination (Any republications?) -- Bearer of tales as liable as teller of tales -- Re-tweeting anyone? -Statute of Limitations in Louisiana one year -Publication - anyone other than the publisher and the subject of the statement receives the communication single edition -Quotation is not a defense - See doctrine of Republication.

Defamation of Groups, Corporations, & Products

Trade libel [product disparagement]: Falsely criticizing a product line

Article III- Judicial Branch

US Supreme Court and Federal Court System US Congress determines size and scope of inferior courts. Federal judges appointed for life unless they resign or are impeached.

Brown v. Entertainment Merchants Association (2011)

Video gaming law unjustified by compelling government interest due to lack of narrowly tailoring -- "wildly under-inclusive". -The First Amendment extends to video games because they are a form of communication. - A 7-2 decision in favor of entertainment merchants association

Commercial Appropriation

Violation of either an individual's right of privacy or right of publicity. Name or Likeness viewed as property Loss of profit is one harm Another harm is mental anguish

Curtis Publishing Co. v. Butts (1975)

Wally Butts, athletic director at Univ of GA, brought suit against Saturday Evening Post for publishing an article that alleged he "fixed" a game with Paul "Bear" Bryant. Used source George Burnett who alleged he had accidentally been "patched in" to a phone conversation between the coaches -applied "actual malice" test to retired football coach that was paid out of privately financed U. of Georgia athletic association. -found SATURDAY EVENING POST had shown "actual malice" by relying on single source who they knew to have a criminal record, in situation where they had adequate time for further investigation. [Butts was accused of having fixed football game scores]

Article V- Constitutional Approval

We can amend the Constitution but only with Supermajorities Either Congress or the States initiates new Amendments Two-thirds majority votes in both House and Senate OR Constitutional convention called by two-thirds of the State legislatures

Structure of the Constitution Preamble - Six Purposes

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Louisiana Science Education Act

allows public school teachers to use supplemental materials in the science classroom which are critical of evolution, climate change, and human cloning.

Libel

broadly printed, written or broadcast material

Slander

broadly spoken words of limited reach

Zacchini v. Scripps-Howard Broadcasting Co.

daredevil asked that human cannonball act not be filmed. Reporter agreed- but then later recorded the act and aired it on the evening news. Daredevil sued claiming his act was showed and commercialized without his consent -- unlawful appropriation on his personal property first case on rights of publicity-- sided with the daredevil -Hugo Zacchini performed a "human cannonball" act, in which he was shot from a cannon into a net 200 feet away. A free-lance reporter for Scripps-Howard Broadcasting Co. recorded the performance in its entirety without consent and it aired on the nightly news. Subsequently, Zacchini sued Scripps-Howard, alleging the unlawful appropriation of his professional property. -Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer's state-law right of publicity? -No. In a 5-4 opinion delivered by Justice Byron R. White, the Court held that Scripps-Howard's constitutionally privileged free speech did not extend to broadcasting Zacchini's entire performance without his permission. Noting that Zacchini's interest in the case was similar to a patent or copyright, in which he was seeking to obtain the benefit of his work, the Court emphasized that the broadcast of an entire act was categorically different from reporting on an event in so far as it posed a substantial threat to the economic value of the performance. "

Categories of defamation

defamation per se - libel on its face defamation per quod - extrinsic knowledge Look at words' natural meaning to determine level of injury - per se. Extraneous knowledge - per quod

United States v. Stevens (2010

federal law prohibiting possession, creation, or sale of depictions of animal cruelty, but law found by Supreme Court to be an unconstitutional violation of freedom of speech.

Limited Public Forum

includes university meeting rooms, city-owned theaters, and school newspapers - example: Hazelwood v. Kuhlmeier (1988)

Nonpublic Forum

military bases and jails. Example: Perry Education Association v. Perry Local Educator's Association (1983)

united states v. Ulysses (1933)

obscenity -calls for work to be taken in whole from an average person's perspective with community standards in mind -A book is obscene if it 'tends to stir the sex impulses or to lead to sexually impure and lustful thoughts ...." James Joyce's novel judged to be not obscene

Obscene content

requires proof that the "dominant theme taken as a whole appeals to the prurient interest" of the "average person, applying contemporary community standards" and that it is "utterly without redeeming social importance

Sherbert v. Verner (1963)

the Court ruled (7-2) that disqualifying Sherbert, a Seventh-Day Adventist, from receiving unemployment benefits violated the free-exercise clause

R.S.14§285. Telephone communications; improper language; harassment

use obscene, profane, vulgar, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature or threaten any illegal or immoral act with the intent to coerce, intimidate, or harass another person..." Penalty: Up to $500 and/or six months in prison

Traditional Public Forum

you have a place and time and manner and you say what you want include streets, sidewalks, public parks est. Hague v. CIO