Media Law Final Exam

Hazelwood v. Kuhlmeier (1988) SCOTUS

5-3 Decision (Pending Justice) · Facts: protocol is that the high school newspaper submits their product to the principal for review before publication; part of a journalism class where the school pays for publication with the high school banner on it; two stories that were controversial in an issue (one on teenage pregnancy and one on divorced parents); principal turned down these stories because he worried for the anonymity of pregnant students and thought it was inappropriate for younger students; he said the second piece painted their parents in a bad light; student journalists sued the school because this is prior restraint · Issue: is this a violation of their first amendment rights? · Holding: no · Reasoning: is the school newspaper a public forum? No, they have always required principal approval; does NOT use the Tinker test because here, they are saying the principal has to promote student speech affirmatively by paying for it; because of this, schools have more authority to prohibit speech; principal has legitimate pedagogical reasoning behind pulling the stories

Branzburg v. Hayes (1972) SCOTUS

5-4 Decision · Facts: Branzburg published a story describing his observation of two residents synthesizing hashish from marijuana, which earned the residents $5k in three weeks. Branzburg promised not to reveal the identities of the residents. Branzburg was subpoenaed by the Jefferson county grand jury, he appeared but refused to identify the individuals he had seen in possession of marijuana. A state trial court judge asked him to answer these questions and rejected his contention that he was protected under the KY reporters' privilege statute, the first amendment, or section 1,2, and 9 of the KY constitution, which authorized his refusal to answer. Branszburg sought prohibition and mandamus at KY Ct of Appeals but was denied the petition. They held that branzburg lost his first amendment protection by filing a supplemental memorandum (contract) and rejected his KY const. protection on the same basis. They interpreted the KY statute as allowing him to refuse to reveal the identity of an informant who gave him info., but that he could not refuse to testify about events he personally witnessed, including the identities of those involved in the events. In another case, Branzburg published a story about the drug scene in Frankfort, and to do so, he had spent time interviewing and observing drug users in the city. He was subpoenaed to appear before a Franklin County grand jury to testify the violation of statutes concerning drug use. He moved to quash the summons, which was denied but an order was issued to protect Branzburg from revealing confidential information but required him to answer any questions which pertained to the criminal act. He again sought mandamus and prohibition from the KY Ct of Appeals, arguing that if he was forced to go before a grand jury and disclose information given to him in confidence, his effectiveness as a reporter would be damaged. The Ct denied the requested writes, maintaining their construction of the KY statute (section 421.100) and rejecting the first amendment claims. Ct distinguishes Caldwell v US, asserting that the decision "represented a drastic departure" from the recognized rule that sources of info held by a reporter are not protected under the first amendment. Moreover, Ct recognized the argument by Branzburg that his effectiveness of a reporter would be damaged as a weak claim that did not limit his freedom of press rights as interpreted by the US const.Branzburg sought cert to review both judgements made by KY Ct of Appeals, which was granted.In re Pappas, Pappas was called to New Bedford in 1970 to report on civil disorders. He covered a black panther news conference at the group's headquarters. The surrounding streets were barricaded but he gained entrance and photographed the scene. He later got permission to re-enter the headquarters as long as he didn't disclose anything he saw/heard in the store. When he was summoned before the Bristol County Grand Jury, he refused to answer questions about anything that had happened inside the store, appealing to his first amendment rights he claimed gave him the right not to disclose confidential information about informants. Upon receiving second summons, he moved to quash the summons, which was denied by a trial judge who, noting no statutory protection for newsman privilege in MA, saw no constitutional privilege to deny divulging information about what he saw and heard, including revealing the identities of the informants, before court. The Supreme Ct took judicial notice of the civil disorders and reaffirmed prior MA holdings that testimonial privileges were "limited" and "exceptional," stating that the right to knowledge of evidence took precedent over countervailing interests. Rejected the holding from ninth circuit in Caldwell v US. Maintained that any adverse effect on the dissemination of news was "indirect, theoretical, and uncertain." Concluded that newsmen had the same responsibility as any citizen to testify before court, but that grand juries were subject to the supervision of the presiding judge, whose duty was to prevent oppressive, irrelevant and other improper inquiry.Caldwell was subpoenaed to testify and bring in private recordings. He rejected the scope of the subpoena, and his attorneys and the government agreed on a continuance. In a second subpoena, omitted the documentary req but that Caldwell testify about events before a grand jury. Caldwell and NYT moved to quash on the ground of the unlimited scope of the subpoena that he would have to appear in secret to court would drive a wedge between his working relationship with the black panther party and that first amendment freedoms were being abridged in the absence of a compelling government interest.The motion was supported by amicus curiae from other publishing concerns and by affidavits by other newsmen who felt the same way. The government filed three memoranda in opposition supported by affidavits. The grand jury was investigating possible criminal acts, such as threats to president, civil disorder, interstate travel to incite a riot and mail frauds and swindles. They cited dangerous rhetoric like "gonna kill Nixon" and saying they advocate for the overthrow of government by force and violence in the Caldwell article. Chief of Staff of the party had recently been indicted by the grand jury and various efforts were made to secure evidence.The US petition for cert was granted.In all three cases, the petitioners claim that by choosing not to identify the sources of information only to then reveal these confidences before a court makes it harder for them to receive publishable information and acts as a determent to the free flow of info granted by first amendment freedoms. While they do not claim an absolute privilege to first amendment freedoms in interrogation, they assert the reporter should not have to testify until and unless there are sufficient grounds for believing the reporter possesses relevant information to the crime, that they cannot get this info from other sources and that the need for the info is compelling enough to override the protected first amendment claims. · Issue: whether requiring newsman to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the first amendment. · Holding: no · Reasoning: Journalists, like any other citizen, have to testify if they have information on a criminal act. You could maybe quash the subpoena if you can prove that the official only wants to hurt your journalistic integrity and you do not have information pertinent to the trial.

Federal Communications Commission v. Pacifica Foundation (1978) SCOTUS

5-4 Decision · Facts: a satiric comedian, George Carlin, recorded a 12 minute monologue entitled "filthy words" before a live audience in a California theater; the monologue was then broadcasted on a NY radio station, owned by Pacifica; the case began in 1973 when a man was driving his car with his son and they heard the broadcast; the man filed a complaint with the fcc saying that minors should not be exposed to such profane and indecent comments; fcc agreed and issued an order in 1975, stating that the pacifica foundation, could be subject to administrative sanctions; the fcc did impose sanctions by placed a letter in the station's file that could be used to enhance future punishments; the commission concluded that certain words depicted sexual and excretory activities in a pantently offensive manner and was broadcast in the early afternoon with children at risk of overhearing · Issue: is the broadcast indecent? Is the broadcast protected under the first amendment? · Holding: yes and no · Reasoning: language was patently offensive, indecent, "vulgar," "indecent," and "shocking"; broadcast media has limited first amendment protection; the government had greater power to regulate the sexual speech at issue in this case for at least 2 reasons that were on the basis of context and content- (1) sexual speech at issue in this case had lower value and was not entitled to as much protection as political speech, (2) the speech took place in the broadcast medium that "has received the most limited first amendment protection"; medium is "uniquely accessible to children"

Texas v. Johnson (1989) SCOTUS

5-4 Decision · Facts: during the 1984 RNC convention in Dallas, Gregory Lee Johnson burned an American flag in front of city hall as part of a political protest against the Reagan Administration; was NOT his flag, but someone had stolen it off a building and gave it to him (destruction of private property?); no one was physically threatened or injured, but witnesses claimed to be offended by the flag burning; Johnson was charged with criminal offense of 'desecration of a venerated object in violation of Texas Penal Code Ann. Section 42.09(a)(3)(1989); convicted and sentenced to one year in prison, $2,000 fine; Texas Court of Criminal Appeals reversed, argued Johnson's actions were symbolic speech protected by first amendment, flag's special status was not harmed by this expression · Issue: is Johnson's burning of the flag considered expressive conduct, and if so, is desecration of the American flag protected by first amendment? · Holding: yes, flag burning is a protected form of symbolic speech · Reasoning: while the first amendment literally only protects speech, "its protection does not end at the spoken or written word"; Johnson's flag burning was "conduct sufficiently imbued with elements of communication"; the expression was overtly political in nature; the state claimed it had an interest in preserving the flag's symbol of national unity, but majority says, "if there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"-the texas law prefers one viewpoint over another, allows the viewpoint that favors the flag and its symbol of nationhood, does not allow the viewpoint that opposes it; state also noted its interest in preventing disturbances of peace, but majority claims his conduct did not threaten to breach peace

Citizens United v. Federal Election Commission (2010) SCOTUS

5-4 Decision · Facts: in January 2008 Citizens United released film called Hillary: the movie; the BCRA section 203 prohibits corporations and unions from using treasury funds to advocate the election or defeat of a candidate or to broadcast electioneering communication within 30 days of primary election and 60 days of general elections · Issue: is section 203 of the bipartisan campaign reform act unconstitutional? Does it violate Citizens United's first amendment rights to engage in political speech? · Holding: yes and yes · Reasoning: limiting "independent political spending" from corporations and other groups violates the first amendment right to free speech; court claims Austin and McConnell have "banned corporate speech" with exemptions for PACS which are separate funds established by corporations for political purposes. Austin and McConnell left other avenues for corporations' political speech and did not imply corporations may be silenced; first amendment precluded regulatory distinctions based on speaker identity (including identity as a corporation); Austin and McConnell were radical outliers in first amendment tradition (regulations have gone back and forth from the tillman act which banned it, then buckley and bellotti which allowed corporate speech, then back again to Austin and McConnell with regulations) Electioneering ads that run a specific time before the election. Corporate entities have more sway in society, with limited liability, so they are dominating the conversation right before an election with unlimited expenditures

Legal Services Corporation v. Velazquez (2001) SCOTUS

5-4 Decision · Facts: the LSC was established in 1974 by Congress to distribute funds for local organizations to provide financial support for legal assistance in noncriminal proceedings for indigent clients; there was a funding restriction congressionally placed on LSC-funded attorneys to prevent them from representing clients who were attempting to challenge existing welfare law (restriction prohibits advice/argumentation that existing welfare laws are unconstitional, which becomes an issue of viewpoint-based funding decisions) · Issue: does the funding restriction on the LSC violate the first amendment? · Holding: yes · Reasoning: court ruled that the funding restriction violated the first amendment by regulating private speech and insulating federal law from legitimate judicial challenge; this case is different from Rust because the LSC was designed to facilitate private speech, not to promote a governmental message (lawyers have an obligation to represent interests of their private clients); the LSC program helps the current welfare system function in a more efficient/fair manner and "the statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider" · Seemingly inconsistent decision (Justice Kennedy changed his vote).

Rust v. Sullivan (1991) SCOTUS

5-4 Decision · Facts: title x of the public health service act of 1970 states that none of the federal funds appropriated under the act for family planning services "shall be used in programs where abortion is a method of family planning"; in 1988, the secretary of health and human services issued new regulations attaching these conditions on the grant of federal funds for the title x projects- (1) title x project may not provide counseling concerning the use of abortion or provide referral for abortion as a method of family planning, (2) title x project may not engage in activities that "encourage, promote or advocate abortion as a method of family planning", (3) title x projects must be organized so that they are "physically and financially separate" from prohibited abortion services; the title x grantees and doctors suing on behalf of themselves and their patients, challenged these regulations · Issue: are these regulations a viewpoint based and therefore a violation of the first amendment? · Holding: no · Reasoning: petitioners argue that these regulations are viewpoint based because they prohibit all discussion about abortion; the government "may make a value judgment favoring childbirth over abortion, and implement that judgement by the allocation of public funds"; the government can, without violating the constitution, selectively fund a program to encourage certain activities it believes to be in the public interest without funding an alternate program which seeks to deal with the problem in another way; this is not a case of the government "suppressing a dangerous idea," but of a prohibition on a project grantee or its employees from engaging in activities outside of its scope

National Socialist Party of America v. Village of Skokie (1978) Supreme Court of Illinois

5-4 Per Curiam Opinion · Facts: Skokie has 40,000 Jewish citizens; 5,000 of which are Holocaust survivors; the American Nazis want to assemble and protest against insurance requirements before Nazis can use public parks; the letter says that there will be abut 30-50 demonstrators that will be peaceful (no flyers, no speeches, but they will be wearing party uniforms with swastikas); resident filed for emergency injunction because many in the community will feel fear and 18 Jewish organizations are planning a counter-demonstration, so there is reason to expect violence; circuit court enjoined the group from marching with swastika or distributing flyers; appellate court says they only need to remove the swastika · Issue: is the order against wearing swastikas violating the first amendment? · Holding: yes · Reasoning: Cohen decided that public expression of ideas cannot be prohibited; symbolic speech; the village has a "heavy burden" to justify prior restraint; fighting words? No, because there is not a one-to-one epithet; Skokie residents are not required to confront the Nazis

Richmond Newspapers v. Virginia (1980) SCOTUS

7-1 Decision · Facts: Stevenson is indicted for second degree murder and is convicted. The Virginia supreme court reverses this on the basis that there is a bloodstained shirt that has been deemed improperly admitted evidence; he was retried, but the second trial is declared a mistrial; the third trial is also a mistrial; in the fourth trial, Richmond newspapers is present. The counsel for the defendant motions to close the court to the public. No objections were given by any present. Motion was granted. Later, appellants sought a hearing to vacate the motion. Agued other measures were not considered before going to this decision; the defendant didn't want information, possibly false, to leak to the public as he was in a small community. Court stayed closed for trial, and there was again a mistrial and he was declared not guilty; appellants filled for nunc pro tunc against the closure of the court. They petitioned the Virginia supreme court for writs of mandamus and prohibition, appealing the trial court's closure order · Issue: did the closure of the court violate the first amendment rights of the press? · Holding: yes · Reasoning: the court states that throughout its development, trials have always been open in history. They cite examples such as the Eyre of Kent (1313-14) where the public was necessary in the court. American colonial courts are also cited. There is a 'natural yearning to see justice done' in people/community. First amendment 'prohibits government from summarily closing courtroom doors'; courtroom is also a public place, and people can assemble there; barring unmanageable circumstances, the court has to stay open

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976) SCOTUS

7-1 Decision · Facts: statute- a pharmacist licensed in Virginia is guilty of unprofessional conduct if he "publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms... for any drugs which may be dispensed only by prescription"; a Virginia resident (who suffers from diseases that require her to take prescription drugs on a daily basis) + 2 non-profits argue that this statute is a violation of the first amendment; argue that the first amendment entitles the user of prescription drugs to receive information that pharmacists wish to communicate to them through advertising and other promotional means, concerning the prices of such drugs; prescription drug consumers would greatly benefit if the prohibition were lifter and advertising freely allowed; drug prices in Virginia vary greatly from outlet to outlet even within the same locality; board argues that aggressive price competition will result from unlimited advertising and will make it impossible for the pharmacist to supply professional services (such services are time consuming and expensive. If competitors who are permitted to advertise their lower prices, other pharmacists will be forced either to follow suit or to go out of business and this could undermine the high perception of professionalism in pharmacy); board also argues that it could incentivize people to leave their regular pharmacist which removes the individual care they provide · Issue: is this statute a violation of the first amendment? Would this protection apply to the consumer as a recipient of the information or to the advertiser (pharmacist) who wants to disseminate such information? Or both? · Holding: yes, it is a violation. The protection applies to both. · Reasoning: freedom of speech presupposes a willing speaker. Where a speaker exists, the protection afforded is to the communication, to its source and to its recipients; VA state board of pharmacy argues that the first amendment doesn't apply here because this should be considered "commercial speech"; court cites Bigelow v Virginia, where they reversed a conviction for violation of a Virginia statute that made the circulation of any publication to encourage or promote the processing of an abortion in Virginia a misdemeanor; lack of protection for commercial speech is "distinctly a limited one" that allows "a reasonable regulation of the manner in which commercial advertising could be distributed"; cannot restrict speech only because it is commercial (it is still valuable in the marketplace of ideas); acknowledges that this case is different from others because it's not about newsworthy facts or political ideas, but solely about the right to communicate the idea of "I will sell you the x drug at the y price" (speech does not lose protection if money is spent to communicate it and speech which does "no more than propose a commercial transaction" does not lack all protection); consumer's interest in the free flow of commercial information may be as keen, if not keener by far, than his interest in the day's most urgent political debate; no line between publicly "interesting" or "important" commercial advertising and the opposite kind could ever be drawn; high professional standards are guaranteed by the close regulation and any pharmacist endangering customers would promptly lose their license; conclude by saying that commercial speech in general can and may be subject to regulation in other instances (untruthful speech)

Brown v. Entertainment Merchants Association (2011) SCOTUS

7-2 Decision · Facts: California passed a bill in 2005 that prohibits the sale or rental of violent video games to minors, and requires their packaging to be labeled 18; the act covers game in which the player can kill, maim, dismember or sexually assault the image of a human being in a manner that - (1) a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors, (2) is patently offensive to prevailing standards in the community as to what is suitable for minors, (3) causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors · Issue: does the California law imposing restrictions on violent video games violate the first amendment? · Holding: yes · Reasoning: it is difficult to distinguish politics from entertainment, and dangerous to try; video games communicate ideas-and even social messages-through many familiar literary devices and through features distinctive to the medium and that suffices to confer first amendment protection; minors are entitled to a significant measure of first amendment protection, and no doubt a state possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed · Attempt by California to regulate violent videogames, because they believe it causes harm to minors. You cannot show causality, so this is invalid.

Virginia v. Black (2003) SCOTUS

7-2 Decision · Facts: Virginia law says it is a felony for any person with intent to intimidate any person or group to burn a cross on the property of another or any public place; assumes that person intended to intimidate prima facie case of intent (up to defense to prove outside intent); defense believes the Virginia statute is unconstitutional; Virginia Supreme court says that R.A.V. decided state (gov't) cannot single out content or viewpoint based communication for punishment; fighting words (sub category) cannot single out race, creed, color, religion, sex/gender, unless the content/viewpoint based communication is why the category is unprotected in the first amendment (concern that person words are aimed at will react with violence) · Facts (from Oyez): 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." At trial, Black objected on first amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred. He was found guilty. O'Mara pleaded guilty to charges of violating the statute, but reversed the right to challenge its constitutionality. In Elliott's trial, the judge did not give an instruction on the statute's prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech. · Issue: Does the Virginia cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons violate the First Amendment? · Holding: yes · Reasoning: while state, consistent with the first amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. · You cannot assume intent to intimidate in cross burning.

Bethel School District No. 403 v. Fraser (1986) SCOTUS

7-2 Decision · Facts: student is giving a speech at a school assembly in honor of another student running for student council; student ran the speech by a teacher who told him not to go along with the speech; he did it anyways; had a lot of sexual innuendos and the audience was yelling/making sexual hand gestures; school suspended Fraser for two days · Issue: is the suspension a violation of Fraser's free speech rights? · Holding: no · Reasoning: does NOT use the Tinker test (is there a disruption?); this speech is markedly different because Tinker is a political speech and this is sexual innuendo; first amendment clearly does not stop the school from prohibiting vulgar speech inhibits the school's functioning capacity; we have the task of inculcating values

Tinker v. Des Moines Independent Community School District (1969) SCOTUS

7-2 Decision · Facts: students in Des Moines want to protest the Vietnam war by wearing black armbands; administration adopted a policy specifically for these students meaning suspension for anyone with these bands; students and parents claim first amendment violation · Issue: do students have any first amendment rights? Is suspension a violation of these rights? · Holding: yes and yes · Reasoning: "neither students or teachers shed their claim to constitutional rights at the school house gates"; rights ARE limited; speech was silent, passive and did not create disorder; you can inhibit speech if it materially and substantially interferes with the discipline or operation of the school; students are learning how to be citizens of democracy, so taking away their first amendment rights would prohibit this development · Only case where the students win. · Precedent is still good law.

US v. Stevens (2010) SCOTUS

8-1 Decision · Facts: enacted in 1999, USC section 48 criminalizes the creation, sale or possession of an depiction of animal cruelty for commercial gain; Stevens ran a business where he produced and sold videos of pit bulls fighting each other and attacking other animals; stevens is indicted on three counts of violating section 48, he moves to dismiss the indictment on the grounds that section 48 violates the first amendment; the district court denies the motion holding that depictions that fall under section 48 are unprotected like obscenity and child porn; stevens is convicted on all counts and is sentenced to 3 sentences and 37 months each in addition to 3 years probation after release; stevens appeals to the third circuit court and the holding is reversed · Issue: does section 48 violate the first amendment? · Holding: yes · Reasoning: section 48 regulates expression based on content which is unconstitutional if the content itself is legal and constitutional, animal cruelty isn't an unprotected class of speech; a law can be ruled unconstitutional if a substantial number of applications are unconstitutional and the court applies that here; it is too broad, "depictions of animal cruelty" is not defined enough to be constitutional, and could cover a wide variety of speech; does not specify that the content be necessarily "cruel" just illegal, therefore it could be applied to material depicting things such as the "humane slaughter of a cow," or hunting videos in states that hunting is legal; the law states that it would only be used in situations of extreme cruelty, however the first amendment protects the American people from following unconstitutional laws because the government claims they will only use it responsibly; the exceptions clause does not sufficiently narrow the scope of the law, because a lot of speech is not considered "serious" or meets the miller test conditions

Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980) SCOTUS

8-1 Decision · Facts: the public service commission of NY mandated that "all electric utilities in the state" stop advertising in December 1973 (the state did not have enough fuel for consumer demand in the 73-74 winter); in 1977, there was no longer a fuel shortage, so the commission asked the public if it should continue the ban on promotional advertising for electric utility companies. After considering public comments, the ban continued. A policy statement continued the ban; the policy statement divided advertising expenses into two categories (promotional and informational)-promotional is made to directly "stimulate the purchase of utility services" and informational is designed to encourage "shifts of consumption from peak demand times to periods of low electricity demand"; promotional would go against the conservation of energy, and informational would aid in conserving energy; the commission's order upheld at trial court, intermediate appellate level, and by the NY Ct of Appeals · Issue: is the commission's policy restrain on commercial speech in violation of the first amendment? · Holding: yes · Reasoning: the first amendment "protects commercial speech from unwarranted governmental regulation"; commercial speech that does "not accurately inform the public about lawful activity," and is deceptive, can be banned by the government; if the commercial speech is about lawful activity and not misleading, the state can only regulate commercial speech if they have a "substantial interest to be achieved by restrictions" and the technique is "in proportion to that interest"; four-step analysis for commercial speech - (1) is the expression protected by the first amendment? (lawful activity and not misleading), (2) is the governmental interest substantial?, (3) if yes to both 1 and 2, does the regulation directly advance the governmental interest?, (4) is the regulation more extensive than necessary to serve the governmental interest?; in this case - (1) yes, (2) there are two substantial governmental interests in the ban (energy conservation and the aggravation of inequities caused by the failure to base the utilities rates' on marginal cost), (3) for energy conservation, yes, but for aggravation of inequities, no, (4) yes, the complete suppression of promotional advertising is more extensive than necessary for the state's interest

Nebraska Press Association v. Stuart (1976) SCOTUS

9-0 Decision · Facts (from Oyez): a Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused. · Issue: did the judge's order violate the first amendment? · Holding: yes · Reasoning: the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's right. "A whole community cannot be restrained from discussing a subject intimately affecting life with it."

New York v. Ferber (1982) SCOTUS

9-0 Decision · Facts: "at issue in this case is the constitutionality of a NY criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances"; Ferber sold two movies depicting underage boys engaged in sexual activity to an undercover cop; charged with violating article 263 under NY's penal law; Ferber argued his material didn't meet the standards for obscenity · Issue: did NY's law against sexually explicit material depicting minors violate the first amendment? And whether child porn was protected by the first amendment? · Holding: no and no · Reasoning: the court reversed the decision of NY's Supreme Court; penal law is constitutional and that the first amendment does not protect sexually explicit material when dealing with minors; court ruled that the depiction of sexual acts of the child even if the material was not deemed obscene by the state's interpretation of the term was constitutional; court found NY had many reasons to prohibit the distribution of this material, even without meeting the Miller test or using the SLAPS prong (harm to minors, punishing market furthered that goal of protecting minors, material of de minimus value to society)

R.A.V. v. City of St. Paul (1992) SCOTUS

9-0 Decision · Facts: teens (lived across the street) burn a cross on the lawn of a black family; R.A.V. is charged by local police under the St. Paul bias ordinance; regulates using a symbol that you know will arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender; R.A.V. claims this is overbroad and/or content based restriction on speech; Minnesota Supreme Court reverses the decision because the ordinance only covers fighting words (not overbroad) and this is unprotected speech · Issue: does this ordinance violate free speech rights? · Holding: yes · Reasoning: St. Paul is engaged in content based distinctions in regulation of speech under this ordinance; government cannot put its thumb on the scale at disfavored speech (political correctness); aim at action is okay, but aim at speech is not okay; fighting words are an unprotected category of speech (Chaplinsky), but you aren't punishing ALL fighting words with this ordinance because it left out political affiliation, union membership, and sexual orientation · You cannot play favorites inside a regulated category (need to include union affiliation, sexual orientation, and political affiliation for the ordinance to be valid). · You could charge R.A.V. with arson, property damage, or trespassing, but not their speech

Campaign finance doctrine

Buckley v. Valeo (1976) SCOTUS Citizens United v. Federal Election Commission (2010) SCOTUS SpeechNow.org v. FEC

Platform responsibility doctrine

Doe v. MySpace (2008) 5th Circuit Knight Institute v. Trump (2019) U.S. District Court

Obscenity/Indecency doctrine

Ginsberg v. New York Sct (1968) Miller v. California (1973) Federal Communications Commission v. Pacifica Foundation (1978) SCOTUS American Booksellers Association v. Hudnut (1985) 7th Circuit Ct of Appeals New York v. Ferber (1982) SCOTUS US v. Stevens (2010) SCOTUS Brown

Hate speech doctrine

National Socialist Party of America v. Village of Skokie (1978) Supreme Court of Illinois R.A.V. v. City of St. Paul (1992) SCOTUS Virginia v. Black (2003) SCOTUS

Buckley v. Valeo (1976) SCOTUS

Per Curiam Opinion · Facts: After Watergate, Congress attempted to eliminate corruption in political campaigns by restricting financial contributions to candidates. The law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount. The federal election commission was also created to enforce the statute. Later, plaintiffs, candidates, contributors, and political parties, brought a suit against defendant government officials, in their capacity and as member of the federal election commission. Plaintiffs challenged the constitutionality of the act, related tax code provisions, and the validity of the commission on the basis that it limited their first amendment right to free political speech. The court of appeals upheld the act it was then taken to the supreme court. · Issue: did the limits placed on electoral expenditures by the federal election campaign act of 1971, and related provisions of the internal revenue code of 1954, violate the first amendment's freedom of speech and association clauses? · Holding: the restrictions on individual contributions to political campaigns and candidates did not violate the first amendment. Governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the first amendment. · Reasoning: restrictions on individual contributions to political campaigns was justified by weighty interests in restricting influences stemming from the dependence of candidates on large campaign contributions; the limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding against unscrupulous practices so it is a justified restriction; symbolic expression is still possible and no limits are placed on the ability to discuss candidates and issuesgovernmental restriction of independent expenditures in campaigns was unconstitutional because they placed substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in political expression that was protected by the first amendment; since the practices do not necessarily enhance the potential for corruption that individual contributions to candidates do, the court found that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association; expenditure ceilings impose direct and substantial restraints on the quantity and diversity of political speech. A primary effect of the expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression at the core of the electoral process and of the first amendment freedoms. · Initial law is limiting contributions to the campaigns and expenditures on behalf of the campaigns. · Expenditures are a more explicit type of speech than contributions, because with expenditures, you get to dictate how the money is spent. Campaign contributions are broad and the money could go to anything.

Nike v. Kasky (2003) Supreme Court of California

Per Curiam Opinion · Facts: starting in 1996, allegations were made that Nike's factories in foreign countries had dangerous conditions and the workers in these factories were mistreated and underpaid; Nike responded to accusations through letters to newspapers, letters to university presidents and athletic directors, and press releases; Nike hired an outside company to investigate the working conditions in their factories and its operations, which found that allegations were false; Nike bought ads in newspapers to publicize report from investigation; in 1998, acting on behalf of the public, Kasky sued Nike under California's Unfair Competition Law and California's False Advertising Law (Nike lied about labor practices); Nike filed a demurrer claiming Kasky's suit was barred by first amendment as they were expressing views on matter of public importance, which the lower court sustained and dismissed the complaint; Ct of Appeals affirmed lower court, ruling that Nike's speech was non-commercial and the speech was part of public dialogue on matter of public concern · Issue: is Nike's speech commercial or non-commercial? Does the first amendment protect Nike's speech from being actionable under state law? · Holding: commercial speech and yes it is protected · Reasoning: Nike's statements are considered commercial speech because they were "directed by a commercial speaker to a commercial audience"; Nike made statements about its own business for the purpose of promoting sales of its products; three distinctions between commercial and non-commercial speech (speaker, intended audience-actual or potential buyers of speaker's goods, and content of message-representation of facts are in a commercial nature)

Hague v. CIO (1939) SCOTUS

Plurality Opinion, 3 Concurrences, 3 Dissents · Facts (from Oyez): in 1937, the committee for industrial organization 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 or assembly, the cio filed suit against several city officials. A district court and the united states court of appeals for the third circuit agrred and invalidated the ordinance. · Issue (from Oyez): did enforcement of the jersey city ordinance violate the cio's right to assembly under the first amendment? · Holding: yes · Reasoning: the public long has used streets and parks to assemble and transmit ideas and speech on issues of public concern. Thus, the ordinances were void.

Press clause-Access doctrine

Richmond Newspapers v. Virginia (1980) SCOTUS Baltimore Sun v. Ehrlich Borreca v. Fasi Nebraska Press Association v. Stuart (1976) SCOTUS Branzburg v. Hayes (1972) SCOTUS In re Grand Jury Subpoena, Miller (2005) US Court of Appeals D.C.

Government subsidies doctrine

Rust v. Sullivan (1991) SCOTUS Legal Services Corporation v. Velazquez (2001) SCOTUS

Student speech rights doctrine

Tinker v. Des Moines Independent Community School District (1969) SCOTUS Bethel School District No. 403 v. Fraser (1986) SCOTUS Hazelwood v. Kuhlmeier (1988) SCOTUS Morse v. Frederik (2007) SCOTUS

Symbolic conduct doctrine

United States v. O'Brien (1968) SCOTUS Texas v. Johnson (1989) SCOTUS

Commercial speech doctrine

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976) SCOTUS Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980) SCOTUS Nike v. Kasky (2003) Supreme Court of California

Order of how problematic speech regulations are

viewpoint-based distinctions -> content-based distinctions (subject matter) -> non-content-based distinctions

United States v. O'Brien (1968) SCOTUS

· Facts: David O'Brien and three other people burned selective service certificates in front of a crowd at a courthouse; FBI agents were in the crowd; the crowd began to attack O'Brien and an FBI agent took him to the courthouse to arrest him; O'Brien said that he had burned the certificate because of his beliefs; he was tried, convicted and sentenced in a MA court; indictment charged that he "willfully and knowingly did mutilate, destroy, and change by burning his registration card"; statute was amended in 1965 so that an offense entailed any action by a person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate"; O'Brien appealed on the grounds that the amendment abridged his first amendment right to free speech; appellate court held that the amendment was unconstitutional, but that O'Brien had violated a regulation that required registrants to keep certificates in their "personal possession at all times"; government appealed to the supreme court, challenging the holding that the amendment was unconstitutional · Issue: does the 1965 amendment banning the destruction of registration certificates violate the first amendment? · Holding: no · Reasoning: destruction of a registration certificate is not a constitutionally protected activity; when "speech" and "non-speech" elements are combined, sufficiently important government interest in regulating non-speech element can justify limiting first amendment freedoms; test for justifying regulation of speech: (1) within constitutional power of the government, (2) furthers an important/substantial government interest, (3) incidental restriction on free speech is "no greater than is essential to the furtherance of that interest"; O'Brien mischaracterizes certificates (certificates have several purposes, including serving as proof that an individual has registered for the draft, facilitating communication between registrants and local boards, reminding registrants to notify board of changes in status, and prohibiting the misuse of certificates); there is a substantial government interest in having a system for raising armies that functions smoothly and properly; destroying certificated gets in the way of this interest

In re Grand Jury Subpoena, Miller (2005) US Court of Appeals D.C.

· Facts: In his State of the Union Address, President Bush said Saddam Hussein was seeking uranium from Africa. This infers that he is building nuclear weaponry; The New York Times published an op-ed by former Ambassador Joseph Wilson, who said the CIA sent him to Niger in 2002, where he found no credible evidence to support this claim; The Chicago Sun-Times then published a column that said the CIA Director did not take part in the decision to send Wilson to Niger. Instead, "two senior administration officials" said Valerie Plame, (Wilson's wife and "a CIA operative on weapons of mass destruction") made the suggestion; Other journalists, including Time.com's Matthew Cooper (one of the appellants), published similar articles, and it eventually came out that "two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife."; The DOJ opened a grand jury investigation to see if government employees broke federal law with this disclosure.; Special Counsel Fitzgerald issued grand jury subpoenas to Matthew Cooper and Time, Inc. seeking testimony and documents pertaining to their articles; Cooper and Time, Inc. moved to quash the subpoenas, but the District Court denied their request; So, they refused to comply and the District Court held them in civil contempt of court; Cooper and Time, Inc. filed appeals, but then one of the sources came forward and said he had no objection to the release of documents or testimony; Cooper and Time fulfilled the subpoena, and the court dismissed their appeals; A few months later, S.C. Fitzgerald issued further subpoenas to Cooper and Time, Inc. that were much more broad. They went through the same process and were, once again, found in civil contempt of court; S.C. Fitzgerald then issued a grand jury subpoena to Judith Miller. She moved to quash it, was denied, and refused to comply. She was held in civil contempt of court; All three appealed this decision, because: They claim the First Amendment affords them the Constitutional right to conceal confidential sources. Common law accounts for a reporter's privilege to conceal confidential sources. If this privilege is qualified (not absolute), the U.S. has yet to make a case to overcome this. S.C. Fitzgerald violated their due process rights by not making this case. S.C. Fitzgerald failed to comply with the DOJ's guidelines for issuing subpoenas to journalists. · Issue: Does the First Amendment or federal common law provide reporter's a privilege to conceal information in the context of a grand jury investigation? · Holding: no · Reasoning: In Branzberg v. Hayes, the Supreme Court "considered and rejected the same claim of First Amendment privilege on facts materially indistinguishable from those at bar."; The appellants have not offered any distinction between the present case and Branzberg, so we must abide by precedent; The appellants argue that Justice Powell's concurring opinion in Branzberg grants journalists the privilege to conceal information in certain situations. But, Powell is only talking about cases of bad faith investigations. That is not the case here; The grand jury was acting on a 'sufficient allegation' that government employees broke federal law in disclosing the identity of a covert operative and these subpoenas were essential to the grand jury's investigation; The appellants claim that the Zerelli Court's decision protects them. But, Zerelli protects a reporter's privilege in civil cases, and this is not a civil case; As for the appellant's claim on common law privilege, the current opinion argues that "if such a privilege applies here, it has been overcome."; Finally, the DOJ guidelines are not enforceable. The appellant's final claim is also void. · Same thing as Branzburg. There was just a lot of time between the two cases and Miller argued that changing societal norms required revisiting this issue.

American Booksellers Association v. Hudnut (1985) 7th Circuit Ct of Appeals

· Facts: Indianapolis enacted an ordinance defining "pornography" as a practice that discriminates against women; under this ordinance, porn is defined as the "graphic sexually explicit subordination of women, whether in pictures or words, that also includes one or more of the following: (1) women are presented as sexual objects who enjoy pain or humiliation, (2) women are presented as sexual objects who experience pleasure in being raped, (3) women are presented as sexual objects tied up or cut or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts, or (4) women are presented as being penetrated by objects or animals, or (5) women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display, or (6) women are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; the ordinance also notes that the "use of men, children, or transsexuals" can be substituted in the place of women; under this ordinance, women harmed by porn would be allowed to sue for damages in court · Issue: is this anti-porn ordinance a violation of the first amendment? · Holding: yes · Reasoning: this ordinance is making a viewpoint based restriction; "above all else, the first amendment means that government has no power to restrict expression because of its message or its ideas"; freedom of speech requires that all ideas be allowed to propagate, regardless of how bad they are; even if speech is "unanswerable" it cannot be restricted; many things, like racism, anti-semitism, violence, and news biases also influence culture and impact our socialization, yet they are all protected, regardless of how insidious they are · Looks at ordinances that attempt to provide a civil remedy for women that face harm from media depictions of women enjoying rape. We cannot regulate this speech.

Baltimore Sun v. Ehrlich

· Facts: Maryland Governor Ehrlich issued a directive that forbade the executive office and agencies from communicating with Baltimore sun reporters david nitkin and Michael olesker because the governor's press office believed that the reporters were "failing to objectively report on any issue dealing with the ehrlich-steele administration"; the sun itself was not denied any access - they maintained that their speech on state government matters was not actually chilled; nitkin testified that he was excluded from press briefings that other sun reporters attended - state government representatives and employees refused to speak to him and were not returning his phone calls; however, on the same day that the directive was issued, he was assured that he was still able to receive information about Maryland's public information act; additionally, in the two months following the directive, nitkin still attended 3 press conferences; during the 8 weeks before the directive, nitkin wrote 45 articles related to state government and olesker 1, and during the 8 weeks after the directive, nitkin wrote 43 and olesker 1; "it is common practice for public officials to determine to whom they will speak, to speak to one or a selected number of reporters and to decide in what forum the information will be disclosed" · Issue: the sun was seeking preliminary and permanent injunctions against the enforcement of the directive, because (1) the directive was a retaliation against the sun's use of their first amendment rights and (2) the directive would have a chilling effect on the sun's right to expression · Holding: no and no · Reasoning: "because... the sun seeks the declaration of a constitutional right that neither the supreme court nor the fourth circuit has recognized - and, in fact, seeks more access that that accorded a private citizen - the governor's motion to dismiss will be granted" · Appeal: sun claims that the government misled the court; they think that their complaint - a public official retaliated and discriminated based on point of view - satisfies the standards of a retaliation claim; "a retaliation claim under 42 USC section 1983 must establish that the government responded to the plaintiff's constitutionally protected activity with conduct or speech that would chill or adversely affect his protected activity" - but the determination of chilled speech is objective; defendants need to show that the directive was more than just an inconvenience - there needs to be actionable, adverse impact; government must be able to balance their speech interest with plaintiff speech interest · Revised issue: whether the issuance of the governor's November 18, 2004 directive in response to the sun's exercise of its first amendment rights gives rise to an actionable claim for the retaliation under the first amendment · Holding upheld · Reasoning: test for a retaliation claim - (1) does making the directive actionable constitutionalize every day-to-day interaction between the press and the governor? (no, only impacted two reporters), (2) does the directive have a substantially adverse impact on the sun's first amendment rights or is it a de minimis inconvenience? (inconvenience, it is common practice for officials to choose which reporters they work with); the two reporters targeted were writing just as frequently as before; the governor's response didn't contain private information about the reporter, there was no threat, coercion, or intimidation -so it isn't actionable · What kind of retaliatory punishment can a public official render on a reporter? - was not a violation to prohibit executive branch employees from speaking to Baltimore Sun reporters.

Borreca v. Fasi

· Facts: Richard Borreca started working for Hawaii's leading newspaper - Honolulu Star-Bulletin; assignment on city hall, including mayor's news conferences; borreca is president of city hall correspondents association and employer is happy with him; 1973-mayor frank fasi (defendant) concluded borreca as "irresponsible, inaccurate, biased, malicious in reporting the mayor and city administration"; borreca called him a "crook," and he would "shaft" the mayor at every opportunity; fasi: I'll talk to borreca "when hell freezes over"; told assistant to keep borecca out of his office; mayor hosts general news conference (given press release, chance to ask questions, topic related to biz of the city/county); 11/2/1973 loomis denied borreca's entry; 11/22/1973 borreca goes back and tries to get in (probably wants a confrontation knowing he won't be allowed). Records the conversation with loomis and writes about it; also excluded from 2 news conferences in december; fasi said any other reporter from star bulletin would be welcome; loomis observed that borreca seldom took notes, which increased the probability of inaccurate reporting, and his statements were biased and malice · Issue: is fasi violating borreca's freedom of the press, as guaranteed by the first amendment? · Holding: yes · Reasoning: freedom of press includes reasonable access to news ie public galleries, press rooms, and press conferences dealing with the government (to limit the right of access, determined by how the importance of the news gathering and type of restraint are balanced with the state interest); the press is so important and now the government is more complex, opportunity for corruption has multiplied; the fact that the liberty of press may be abused by people like borreca does not change our country's right to freedom of the press; fasi argues that nothing he has done has been a violation to the first amendment, because the newspaper is not prevented from coming (just borreca). In addition, borreca can obtain any of the written materials; courts response "one would have to be NAÏVE to believe individual reporter is solely responsible for how stories appear in print; so fasi's objections to borreca are like objections to the whole newspaper; can't handpick those who attend the conference because that is manipulation; fasis says that his news conferences are private affairs in his private office, but the court response is "the mayor is too modest" - if he chooses to hold conferences in his office, then his office becomes a public gathering place; newspapers are not always accurate and objective (they're not perfect) and the mayor has a first amendment right to criticize that, but can't intimidate or discipline

SpeechNow.org v. FEC

· Facts: Speechnow is a nonprofit organization that was formed by individuals who wished to pool shared resources to make independent expenditures with express advocacy; Speechnow planned to solicit contributions only from individuals, and accept no contributions from corporations; each member of speechnow planned on making individual expenditures. All 5 plaintiffs were planning on donating heavy amounts to the organization; as for expenditures, speechnow planned ads for the 2008 election cycle against two incumbent candidates for federal office who, in the opinion of speechnow, did not sufficiently support first amendment rights; speechnow wanted to run these ads, but they would cost 12,000 to produce and since they had not accepted donations yet, they never produced the ads; speechnow intends to run similar ads for the 2010 election cycle if it is not subject to the contribution limits of section 441a(a) at issue in this case; speechnow sought an advisory opinion from the fec about whether they would have to register as a political committee under FECA for receiving contributions from individuals for the purpose of making independent expenditures with express advocacy; the fec prepared a draft opinion stating that because of speechnow's interest in influencing elections, contribution limits would apply to what speechnow could accept and that it was required to register as a political committee after receiving 1,000 in contributions each year · Issue: are the contribution limits unconstitutional? And does contribution limits for independent expenditure groups violate first amendment rights? · Holding: yes, contribution limits on what individuals could give and the amount speechnow could receive were unconstitutional · Reasoning: contribution limits to such groups violate "the first amendment by preventing [individuals] from donating to speechnow in excess of the limits and by prohibiting speechnow from accepting donations in excess of the limits" · Allows for unlimited contributions to Super-PACs, so long as they are only making expenditures themselves and not donating to campaigns.

Knight Institute v. Trump (2019) U.S. District Court

· Facts: Trump's Twitter account @realDonaldTrump was started in 2009 (pre-presidency); since becoming president, the account is run jointly between Trump and Daniel Scavino, Trump's White House Social Media Director; the account has been used to announce matters before they are announced to the public through other channels; the account is used to communicate about the administration; the account is public; anyone can view his tweets without having to be signed into the account; Trump blocked the plaintiff's Twitter accounts after they had replied to his tweets in a way that was critical of Trump; blocked users cannot see/reply to the blocking user's tweets · Issue: can a public official 'block' a person from their twitter account in response to the political views that the person has expressed? Is this consistent with the first amendment? · Holding: no and no · Reasoning: the plaintiffs speech was political speech (protected speech - speech on matters of public concern); forum doctrine: must be owned/controlled by gov't; twitter is privately owned BUT Trump/Scavino exercise control over the specific @realDonaldTrump account with regards to content and blocking; account bio is political in nature (Donald Trump 45th President of the United States of America); tweets from this account are "official records...preserved under the Presidential Records Act"; parts of the account is a designated public forum-in particular, the comment section under the original tweet; restrictions are allowed in a public forum "only if they are narrowly drawn to achieve a compelling state interest"; Trump/Scavino's blocking was in response to political speech and therefore is not protectd; Trump and Scavino acted with "viewpoint discrimination" which is not permitted and is a violation of the plaintiff's first amendment rights · Has Trump created a quasi-public forum on his Twitter account? Yes, even though Twitter is a private company and would not otherwise have any first amendment obligations.

Ginsberg v. New York Sct (1968)

· Facts: in NY, there was an ordinance which outlawed the sale of material deemed obscene to minors under 17 years of age (obscene is any picture which depicts nudity, is harmful to minors and any magazine which taken as a whole is harmful to minors); in this case, Ginsberg and his wife operate "sam's stationary and luncheonette" in Long Island; they sell a multitude of things and also "girlie" magazines, which are pornographic; Ginsberg was found guilty of selling an obscene magazine to a 16 year old boy; Ginsberg argued that the ordinance violated the constitutional freedom of expression and he contended that the right to see or read material associated with sex should not be determined based on a person's age · Issue: did NY violate the constitution? · Holding: no Reasoning: obscenity was not a protected area of speech or press; the court said that it was well within the state's power to protect minors and that just because the material is not classified as obscene to adults, it may still be regulated with minors; the court also determined that the concept of obscenity may vary according to whom the material is directed at; it further held that it was reasonable for the state to consider such material obscene, even if it is not so for adults

Doe v. MySpace (2008) 5th Circuit

· Facts: in the summer of 2005, Julie Doe created a MySpace account; Julie was 13 at the time, but represented that she was 18; this allowed her profile to be public; Pete Soliss contacted her when she was 14 through MS and they met in person; he sexually assaulted her; Julie and her mother sued MS claiming that MS failed to implement basic safety measures; the claims in the plaintiff's petition include fraud, negligent misrepresentation, negligence, and gross negligence against MS · Issue: does section 230 of the communications decency act preclude all of doe's claims against MS? · Holding: yes, section 230 provides MS with broad immunity · Reasoning: 5th circuit court spends quite some time looking at the history of the cda and in particular the section 230 immunity; court also notes that other cases have construed the immunity broadly when the content that gives rise to the liability rests with user-generated content; quoting 4th circuit court, if courts held computed service providers liable, then they would be subject to an immense amount of liability

Miller v. California (1973)

· Facts: miller conducts a mass mailing campaign to advertise his books that contain "adult material"; he mails them to a restaurant owner and his mother in Newport beach, neither of whom requested the brochures; the brochures contain lots of sexually explicit material, the two complain to the police, and Miller is arrested under California state penal code 311.2, which is a misdemeanor for "knowingly distributing obscene material."; he is found guilty of violating this code, the appellate court upholds the lower court's decision · Issue: is California state penal code 311.2 in violation of the first amendment? · Holding: yes · Reasoning: this case established a 3 pronged test for obscenity (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest... there can be no nationwide community standards, (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value; the court affirms that obscenity is not protected by the first amendment, that the states can regulate obscene content, and that obscenity is to be judged by community standards not by a national standard Three pronged test for defining what is obscene that is still in use today.

Morse v. Frederik (2007) SCOTUS

· Facts: several high school students are at a school sanctioned event (congregating outside while Olympic torch passes through town); students unfurl a large banner saying "bong hits 4 Jesus"; this is broadcast and it looks poorly upon the principal; principal asks them to put the banner down, they refuse, he confiscates it, and suspends them · Issue: is this a violation of their first amendment rights? · Holding: no · Reasoning: does NOT use Tinker, Fraser, or Hazelwood; this a pro-drug message so the school can inculcate values and prohibit speech; this is student advocacy of illegal drug use so it is an unprotected category of speech