Power Quiz #2

Gitlow V New York

-Benjamin, business manager of branch of socialist party, oversaw publication and distribution of party literature urging class action to establish socialism in the US. -Without evidence the trial court convicted him of criminal anarchy and sentenced him to prison, the Court upheld the conviction.

What does the plaintiff need to prove to win a lawsuit against media for injury?

-Breach of media's duty of care because the content posed a: 1. Reasonable foreseeability of harm or 2. Proximate (directly related) cause of harm

Freedom of religion

-Forbids the Federal and state government from favoring or aligning itself with any particular religion, or favoring certain behaviors over other believers or non-believers

Core Free Speech and FA values

-Individual Liberty -Self-government -Limited government power -Attainment on the truth

How did the ruling of Brandenburg V Ohio change the landscape of protected speech and set a new precedent?

-The Court said government could forbid or punish the advocacy of force only when advocacy 1. was directed to and 2. was likely to 3. Incite or produce imminent lawless action.

USA patriot act concerns

-The USA patriot act had unclear definitions of "terrorisms" and "support for terrorism" and raised concerns that the law had a chilling effect on speech.

Three categories of public forums

-Traditional public forum -Designated public forum -Non-public forum

History of seditious speech

-USA was a nation of infancy -Didn't want responses to French Revolution influences -Strict laws against seditious libel, produced a chilling effect

Classic prior restraint

1. It imposes government oversight of whole categories of speech, content or publication; 2. it allows the government to choose what content is acceptable; 3. it empowers government to ban content before it is distributed to the public.

First amendment in action; 5 clauses

1.Freedom of religion 2.Freedom of expression/assembly 3.Freedom of the press

Zamara V Columbia Broadcasting Systems

13 YO Ronny shot and killed his 83 yo neighbor and his parents sued the tv networks ABC,NBC and CBS, claiming the networks failed to exercise "ordinary care" to prevent"impermissibly duplicate t atrocities he viewed on TV. -Federal district court said networks did not have any duty to stop showing violent programs and so could not be held responsible the atrocities he viewed on the TV.

Whitney V California

64 year old female labor activist participated in meetings of the Communist Labor Party. The majority of the court ruled that the FA did not prevent CA from making it a crime for her to merely belong to a group that advocated violence as means to bring about political change. The Court accepted without evidence that the communist labor party was violent and her membership of the party was sufficient to pose a danger that was constituted as a threat.

Olivia N. V National Broadcasting Company

A court did not find NBC negligent when a young girl was raped after the network aired the film "born innocent" -The girl was raped similarly to how the movie was portrayed, so the parents sued saying that NBC was negligent showing a movie that children could watch. -State appellate court said that the FA did not allow the argument that NCB had a duty to the raped girl. Finding NBC negligent would cause television networks to engage in self-censorship.

Injunction

A court order prohibiting a person or organization from doing some specified act.

Compelling interest

A government interest of the highest order, an interest the government is required to protect. -These relate to core constitutional concerns and to the most significant functions of the government.

Watters V TSR Inc

A mother of a son that committed suicide sued the manufacturers of "Dungeons and Dragons" The mother said her son lost touch with reality because of the devotion to the game. -The child's suicide was independent of the game, a federal appellate court said. -The cHild's loss of reality and decision to commit suicide were intervening events.

Individual liberty

A natural human right to be creative and expressive.

Tort

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

Rational review

A standard of judicial review that assumes that constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review.

Mccollum V CBS

A teenager committed suicide while listening to an Ozzy Osbourne album that includes a song "suicide solution" -Parents sued and A CA appellate court said there was no direct connection between suicide and the songs lyrics. -The song was composed and recorded years before the teenager's death and the connection between the two was two tenuous to show proximate cause.

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. -Required for laws that curtail/punish FA rights because the government does not like the subject matter. Typically with content based laws

O'Brien Test

A three-part test used to determine whether a content-neutral law is constitutional -Noise ordinances -Size and placement of billboards -Historical context/time

Symbolic expression

Action that warrants some FA protection because its primary purpose is to express ideas.

Rousseau philosophies

Advanced a similar view of social contract between the people of their government.

Attainment on the truth

Advancement of the market place of ideas. Allows for expansion of power and knowledge.

Byers V Edmundson

After being shot during robbery, a store clerk claimed the movie "Natural Born Killers" aspired her assailants. The Shooter admitted that the movie motivated her and her bf to commit violence, but the state appellate court dismissed the lawsuit. -The movie may exalt and glamorize violence, but it did not encourage or command viewers to engage in violent activity.

Gitlow and doctrine of incorporation

Although he was found guilty, Justice Holmes idea of every idea being incitement was not embraced by the court but was used to establish free speech protecting with the doctrine of incorporation.

Cohen V California

Anti-War protest by Paul who wore a jacket in the LA courthouse bearing the phrase "**** the draft" -Convicted of disturbing the peace for "offensive conduct" -He appealed on FA grounds -The Court sai FA protected both the content and the emotional value of a message. Had it said "please do not support the war" it would have been different. The context of words and how you say it enjoys constitutional protection.

Milton's philosophies

Argued that the open marketplace of ideas advanced the interest of society and humankind. "free exchange of ideas was vital to the discovery of the truth

Simon & Schuster V. Crime Victims Board

CONTENT-BASED LAWS -Court struck down a NY law that attempted to compensate crime victims and limit the rewards of crime -NY state passed a law that required convicted criminals who earned money from publications describing or related to their crimes to turn their profits over to the state. The money would compensate crime victims, with any balance paid to the author. -The Court ruled that the content-based law did advance a compelling government interest, but unconstitutionally punished a substantial quantity of literature fully protected by FA. Over broad.

Compelled/ Forced Speech

Cannot be forced to take certain actions if said actions would violate one's FA rights.

Content-based laws

Cannot discriminate/violate FA on the basis of content. They are unconstitutional unless the LEAST RESTRICTIVE MEANS are used to advance a government interest. -Laws enacted because of the message, the subject matter or the ideas expressed in regulated speech.

Freedom of expression/assembly

Case law: McCullen V. Coakley (2014)

Schneck V. US

Charles Schmeck, member of the socialists party mailed 15,000 pamphlets to men in PA encouraging recipients to reject the pro-war philosophy of the US government and oppose US participants in ww1. -He was convicted to violating the Espionage Act -Said mailing had a "bad tendency" and posed clear and present danger to national security.

Ad Hod Balancing

Consider the cases specifics and weighing the competing interests. -Use specific facts of the case under review rather than on the basis of more general principles. Justicies examine competing rights and died which side has the weightier constitution merit.

Categorical balancing

Consideration of broad categories of concern and determining what harm would be done if FA rights were allowed. A judge's or a courts practice of deciding cases by weighing different broad categories, such as political speech, against other categories of interests, such as privacy, to create rules that may be applied later in cases with similar facts. Looking beyond the speech itself to consider particular circumstances and the extent of harm caused to determine whether the expression is punishable.

Yates V US

Court held the FA protected radical and reactionary speech unless it posed clear and danger threats.

Kunz V NY

Court ruled that requiring to mandate a permit to speak on religious purposes was unconstitutional.

US v. O'Brien

David O'brien was convicted for burning his draft card on the steps of the South Boston Courthouse. He was convicted for violating a federal law that prohibited knowing destruction of draft cards to aid the smooth functioning of the draft and US military. -He agreed it was unconstitutional both facially and infringement on freedom of speech. -The court disagreed and reaffirmed O'Brien's conviction CONTENT NEUTRAL LAWS

No protection if it can be proven

Defamation: Ruining someone's reputation Fighting words False advertisement Obscenity

Proximate Cause

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

Clear and present danger test

Doctrine establishing that restrictions on FA rights will be upheld if they are necessary to prevent an extremely serious and imminent harm.

Debs V. US

Eugene, a Socialists Party Leader was convicted of an attempt to cause military insubordination and to obstruct the draft for giving a speech at a socialists party convention opposing the governments war policy. In Court, Deb said he abhorred war and the jury used this statement as evidence that there was both intent and likelihood that his speech would harm the war effort.

To be constitutional under intermediate scrutiny, a law must

Fall within the power of government and advance an important or substantial government interest that is unrelated to suppression of speech and be narrowly tailored to impose only an incidental restriction of FA freedoms.

Judicial methods of interpretation

First amendment cases (2 ways) -Ad Hoc Balancing -Categorical Balancing

Sanders V Acclaim Entertainment

Following the Columbine Shooting, a family sued video game and movie producers on the grounds that the shooters copied actions from their movies. -Federal district court rejected the suit, saying the media defendants did not have an obligation to protect the victims bc they could not force the illegal plans.

Social media and the FA

Freedom of speech Concerns about freedom of the press Media convergence Packing ham V. NC

Negligence

Generally, the failure to exercise reasonable or ordinary care.

Non-public forum

Government held property that is not available for public speech and assembly purposes -Private property owner and controls he space to achieve government objectives. (Military bases prisons, post office walkways, utility poles, airport terminals etc)

Public Forum

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

Designated public forum

Government spaces or buildings that are available for public use. -They may limit the times, places or manners of the designated public forum to ensure it does not conflict with the primary function of the property. (School, fairgrounds, university classrooms, etc)

Some protected free expression

Hate speech Commercial speech(advertising) Non-obscene sexual expression

What are fighting words?

Have no FA rights. They may "Set fire to reason" "By their very utterance inflict injury or tend to incite immediate breach of peace"

Prior restraint and when it is constitutional

In Near v. Minnesota the court suggested prior restraints o speech may be found constitutional when they are necessary to prevent the following: - Obstruction of military recruitment -Publication of troop locations, numbers and movements of time of war. - Obscene publications - Incitements ot violence - Forcible overthrow of government - Fighting words likely to promote imminent violence .

What type of speech does not have FA protection?

Incitement speech

What type of scrutiny was applied to US v. O'brien?

Intermediate scrutiny

Blackstone philosophies

Interpreted English common law to define freedom of speech as prohibiting only government censorship prior to publication.

O'Brien test parts

It is not related to the suppression of speech Advances an important government interest Is narrowly tailored to achieve the interests with only an incidental restriction of free expression.

Abrams V US

Jacob and 4 friends distributed pahmplets critical of US interference in the Russian Revolution and encouraging strikes at US munitions factories. The five men dropped leaflets from a NYC skyscraper urging workers to unite to oppose "hypocrisy of the US and her allies" -Holmes dissented, said it did not pose a sufficiently grave and imminent danger to permit punishment. -marked a transformation inches interpretation of the FA

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 here.

Content-neutral laws (TPM laws)

Laws enacted to advance a government purpose unrelated to the content of speech. GeneraLly relate the non-speech elements of a message, such as the time, the place or the manner (size or volume) in which the speech occurs. -TPM laws -Symbolic expression -Intermediate scrutiny -O'brien test -Important government interest

Laws of general application

Laws such as tax and equal employment laws fall within the express power of government. Laws of general application are generally reviewed under minimum scrutiny.

Case Law: McCullen V. Coakley

Lawsuit by pro-life groups challenged MA law. -35 ft buffer zone outside abortion clinic. Groups argued that FA/FOE were violated. -Court ruled in favor or pro-life group & FA rights.

Freedom of the press

Media not without fault. Journalism/the press is first and foremost a necessary constraint/check on balances/ government power. Check private industries - Being held accountable to the public. -"Fake news": A cautionary tale

Near v. Minnesota

One media defendant violated state law (criminal court) and the case followed the state appellate system to the court. Court said that prior restraint is the least tolerable form of government intervention in the speech marketplace. Jay Near publisher printed issues of his paper filled with charges that city officials were standing by as Jewish gangsters operated gambling, bootlegging and racketeering business across the city. He could not prove they were true and the court shut down the paper. The Court ruled that permanent ban of future issues of the paper was unconstitutional.

Self- government

Our right to discuss and render judgements on political candidates and policies

Most protected free expression

Political speech: news or political opinion about government or public affairs. Religious expression: any communication related to one's spiritual beliefs or lack there of

Zenger Case

Publisher of a newspaper in NY had clearly broken the sedition law by printing criticism of colonial Gov. William Cosby. He was jailed to stop publications. Attorney said noone should be jailed for publishing truthful and fair criticism and acquitted him.

Fake news

Repetition of untruths erodes FA/press freedoms No proof needed Social media is the incubator or un and half truths. Sets dangerous precedents Holds leaders and mediators accountable.

Limited government power

Serves as a check on government power and abuse.

What are speech assaults

Speakers who sometimes intentionally or not insult, denigrate, and degrade others. Calling each other names; throwing hateful insults and hurtful epithets in each others faces. Threaten, harass, and offend. Dissent and discontent in the streets. Messages and symbols that challenge society's morals and values. Cause feel and generate conflict. Usually F2F

What type of scrutiny did Simon & Schuster V. Crime Victims Board use?

Strict scrutiny

Internet and injunctions

Technology makes it nearly impossible to pursue injunctions against WWW postings.

How has the court system weighed in on law suits against media in these cases on media and psychical harm?

That the media did not at negligently or did not intend to cause harm.

concerns about relationship between media portrayals of violence and violent acts

That there is a positive correlation in media portrayals of violence and violent acts.

Doctrine of Incorporation

The 14th amendment concept that most of the Bill of Rights applies equally to the states. -Uses the Due Process clause to limit the power of state and local governments to abridge the guarantees of the Bill of Rights.

Court tests

The Court defines the perimeters of the law in question. Competing interests are considered. This process leads to clear interpretation of the law.

Rice V Paladin Enterprises Inc

The Court held liable a book publisher that said it intended for criminals to purchase and use the book, "Hit Man: A technical manual for independence contractors" to plan and carry out real murders. -It encouraged, aided and abetted a crime, whereas the others simply just wrote about stories.

Packingham V. NC

The Court overturned/struck down a NC law that prohibited registered pedophiles from social media. The ruling: testimony of importance of social media in a day to day lifestyle.

Dennis V. United States

The Court relied on various forms of the clear and present danger test for 50 years to affirm punishment of communists during the Red Scares of the 1920's and 1950's

Synder V. Phelps

The Court ruled that even "outrageous" speech on a public sidewalk about a public issue couldn't be sanctioned. -A marine was killed and the Phelps family picketed his son's funeral with signs reading "Thank God for dead soldiers" and "fag troops". -The Court held that the FA protests picketing on public matters in pu bloc locations even when messages fall short of refined social or political commentary.

Brandenburg V Ohio

The Court ruled that the FA protects the right to advocate but not incite violence. Clarence, a KKK leader, made non-specific threats in a speech to tae vengeance against various leaders in the government. -He was convicted under a state law that made it a crime to conspire to violently overthrow the government. -He appealed, arguing the conviction violated his right of free speech. -The Court ruled FA protects peoples rights to advocate abhorrent ideas about social, political and economic change.

US V Alvarez

The Court struck down Stolen Valor Act, but only four justices half the FA absolutely protects such false statements as pure speech reasoning for this plurality. -Speech may be excluded from FA only in rare and extreme cases.

Brown V Entertainment Merchants Association

The Court struck down a CA law banning the sale of violent video games to children. -The Court said the ban violated FA rights because the games, like books and movies, "communicate ideas" speech about violence is protected by the constitution.

Intermediate-level scrutiny

The Supreme Court generally applies some form of intermediate level scrutiny to content neutral laws that affect freedom of speech. Content-neutral laws require this heightened review due to important government interests.

USA patriot act

The Uniting and strengthening america by providing appropriate tools required to intercept and obstruct terrorism act of 2001.

Incitement

The action of provoking unlawful behavior or urging someone to behave unlawfully.

The incitement test

The clear and present danger test was too flexible, subjective and easily swayed by political realities or social concerns to consistently protect innocuous speech.

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.

What are the circumstances that would hold media liable in media incitement to harm

The incitement test cannot be met without proving that the movie producers intentionally urged immediate unlawful activity.

Prune Yard Shopping Center v. Robins

The owners of CA sopping center argued that they had a right to exclude teenagers circulating a petition. The Court reasoned that protecting the free speech rights of the teenagers did not unduly impose on the rights of the property owner. -The mall was a public space, and the intrusion did not infringe on the owners own freedom of speech.

Lane V. Franks

The supreme court balanced the interest of a government agency to control the speech of its employees against the rights of the individual to testify truthful in court. Court ruled that the FA protects the right of the supreme court in 2010 relied not on balancing but primarily on its own "historical and traditional" interpretation of the FA to strike down a law prohibiting depictions of animal cruelty.

Ferguson V. Brown

There were peaceful marches, rioting an looting for months after a place officer shot and killed Micheal Brown.

Prior restraint

This egregious assault on FA rights is reflected in these case laws: -Near v. Minesota (Began with this case) -NYT v. USA Action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication.

New York Times V. US

This newspaper started a series of news stories on the Pentagon Papers. The Nixon administration asked for a court injunction to stop the publication of classified administration of the status of the Vietnam war. -Government argued that publication threatened national security and safety of US troops. -The supreme court said injunction violated the constitution because the federal government had not met its burden of showing that the ban was essential to prevent real and immediate risk of harm tot a compelling government interest.

FA's original intent

To prevent the US Government from adopting the types of suppressive laws that flourished in England following the introduction of the printing press in 1450.

Bland V. Roberts

US district court in VA argued that FB likes are not considered speech. -Two sherifs who liked their boss's election opposed were fired and they sued. District court granted summary judgment for the sheriff and found the employees were not engaged in protected expression. The court disagreed and remanded the case.

Hess V Indiana

Used profane language at an anti-vietnams war rally after sheriff's officers moved demonstrators form the street to the sidewalks. -The office overheard him and arrested him for disorderly conduct and a jury convicted him. -The Court overturned the verdict, hiding that the FA protected his comment bc his words were not intended to, and not likely to provoke an imminent violation of the law.

Foreseeability

Whether the defendant should have foreseen the plaintiff's injury. If the person should have anticipated an action would cause harm, the person had a duty to protect others. IF a reasonable person could not force harm, there was no duty.

Locke philosophies

argued that government censorship was improper exercise of power. All people have fundamental natural rights. F of E is central to these natural rights. Government actions are legitimate only within sphere of grant power.