COMS 400, Media Law and Ethics. Staniunas. Radford University Ch. 1-4

En banc

(on the bench)- now means "in full court"- decision of important cases. Three Judge Panel.

New York Times v. U.S.

"Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. New York Times won

Deposition

Testimony by a witness conducted outside the courtroom for preparation of trial

Incorporation Doctrine

The 14 Amendment concept that most of the Bill of Rights applies to the states

USA Patriot Act

The Act gave law enforcement agencies greater authority to combat terrorism

Chilling Effect

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right.

Bootstrapping

The forbidden practice of a defendant claiming that the plaintiff is a public figures sole on the basis of the statement that is reason for the lawsuit

Communications Decency Act

The part of the 1996 telecommunications Act that largely attempted to regulate internet content.

Defendant

The party accused of violating the law, or the party being sued in a civil court

Plaintiff

The party who files a complaint: the one who sues

Remand

To send back to the lower court for further action

The Federal Court System:

U.S. District Courts then to the U.S. Circuit Courts of Appeals then The Supreme Court

Common Law

Unwritten, judge made law consisting of rules and principles developed through custom and precedent

Reckless

Word used to describe actions taken with no consideration of the legal harms that might result

Fighting Words

Words not protected by the First Amendment because they cause immediate harm or illegal acts

Involuntary Public Figure

a person who does not necessarily thrust himself or herself into public controversies voluntarily but is drawn into a given issue

Private Figure

a plaintiff who cannot be categorized as either a public figure or official. Generally, in order to recover damages, a private figure is required to prove negligence

Actual Malice

in libel law, a statement made knowing it is false or with reckless disregard for its truth

Ad Hoc Balancing

in which courts make decisions accepting to the specific facts of the case under review rather than on the basis of more general purposes.

Hate Speech

includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect, or the like.

Per Curiam (By the Court)

is the decision of the court as a whole but is not always unanimous

Speech can be defined in several ways:

oral, written, printed, symbolic, creative, political

Threats

1) Direct the threat toward one or more individuals 2) with the intent of causing the listeners 3) to fear bodily harm or death

Time/Place/Manner Law (TPM)

A First Amendment concept that laws regulating the conditions of speech are acceptable than those regulating content; also, the laws that regulate these conditions

Underinclusive

A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment

Subpoena

A command for someone to testify in court

Strict Liability

A defendant is automatically responsible for damages. Fault is not require to recover damages

Compelling Interest

A government interest of the highest order, and interest the government is required to protect

SLAPP (Strategic lawsuit against public participation)

A lawsuit whose purpose is to harass critic into silence, often to suppress those critics' First Amendment rights

Hustler Magazine, Inc. v. Falwell

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. Hustler Magazine won because Falwell was a political figure and couldn't prove actual malice

Tort

A private or civil wrong for which a court can provide remedy in the form of damages

Concurring Opinion

A separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles

Dissenting Opinion

A separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision

Intermediate Scrutiny

A standard applied by the courts to review law that implicate core constitutional values: also called heightened review

Libel per quod

A statement whose injuries nature requires proof

Libel per se

A statement whose injurious nature is apparent and requires no further proof

Strict Scrutiny

A test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance a compelling interest

O'Brien Test

A three part test used to determine whether content neutral law is constitutional

The Sedition Act

Act covered a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds. The Sedition Act of 1918 stated that people or countries cannot say negative things about the government or the war.

Symbolic Expression

Action that warrants some First Amendment protection because its primary purpose is to express ideas

Police chief mistakenly accused in a news story of taking bribes is thinking of suing for libel. what is the level of fault need to prove?

Actual Malice

Important Government Interest

An interest of the Gov. that is substantial or significant but not compelling

Longest Serving Supreme Court Justice

Antonin Scalia

Virginia v. Black

Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a felony "for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," and specifies that "any such burning...shall be prima facie evidence of an intent to intimidate a person or group. "Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional"

Brandeburg v. Ohio

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Ohio law violated Brandenburg's right to free speech.

Proximate Cause

Determining whether it is reasonable to conclude the defendants actions led to the plaintiff's injury

The usual way a case moves through

District, Court of appeals, Supreme

Nonpublic Forum

Government held property that is not available for public speech and assembly purposes (prisons, military bases)

Public Forum

Government property held for use by the public, usually for purposes of exerting rights of speech and assembly

Designated Public Forum

Government spaces or buildings that are available for public use

1st Amendment put limits on...

Government's regulation of rights, not private individuals, groups, or companies

An appeals court that affirms a decision

Has upheld or agreed with the lower court ruling

Texas v. Johnson

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson won, flag burning was symbolic speech

Negligence

the failure to exercise reasonable ordinary care. Minimum level of fault require to prove to receive damages.

Prior Restraint

the legal authority to review material before it's made public

Limited-Purpose Public Official

those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves to the forefront of a particular public controversies in order to influence the resolution of the issues involved

The purpose of the 1st Amendment is...

to protect dissent, the free speech rights of a minority to disagree with the majority view

affirm

to ratify, uphold or approve a lower court ruling.

overrule

to reverse the ruling of a lower court

All-Purpose Public Officials

In libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. Public figure libel plaintiffs are required to prove actual malice.

Public Figure

In libel law, a plaintiff who is in the public spotlight, usually voluntarily, and must prove the defendant acted with actual malice in order to win damages

New York Times co. v. Sullivan

New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. New York Times one. Speech protected false statements

A SCOTUS case is decided on a 5-3 vote. This means

One justice did not take part in the ruling

Fault:

Public Figures must establish actual malice Private individuals must prove negligence

Five Freedoms in the First Amendments

Religion, Speech, Press, Assembly, Petition,

Unprotected Speech

Seditious Speech (criticism of gov.), Fighting Words, Obscenity, and Defamation

Emotional Distress

Serious mental anguish

Damages

May be recovered in court by any person who has suffered loss or injury.

Negligence

Generally, the failure to exercise reasonable or ordinary care

To overturn libel law:

Getting congress to pass a law, waiting for scouts to overturn a precedent

which Justice is not a member of the Conservative Wing of the Supreme Court

Ginsburg

Stare Decisis (Stand by Decision) is the legal doctrine that says

Lowers courts set by higher courts should follow precedent set by higher courts

Negligent infliction of emotional distress

Careless breach of a duty that causes the plaintiff severe emotional harm

Citizens United v. Federal Election Commission

Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president. Electioneering Communications Restrictions. Private political broadcasts cannot be limited. Citizen United Lost

The Clear and Present Danger Test

Doctrine establishing that restrictions on First Amendment rights will be upheld its they are necessary to prevent an extremely serious and imminent harm

T/F : Is Writing Something that's "deliberately false" is actual malice?

False

Chief Justice of the United States

John Roberts

Traditional Public Forum

Lands designed for public use and historically used for public gathering, discussion, and association. (public streets, sidewalks, and parks) Free Speech is protected

Content Neutral Laws

Laws that incidentally and unintentionally affect speech as they advance other important government interest

Intentional infliction of emotional distress

extreme or outrageous intentional or reckless conduct causing plaintiffs severe emotional harm