SMAD 370 - Chapter 3 Speech Distinctions

negligence:

generally, the failure to exercise reasonable or ordinary care. -plaintiffs suing the media for causing physical harm most often argue the media negligently distributed material that led to injury or death.

Chaplinsky v. New Hampshire

"Fighting words" are not protected by the First Amendment -his words were unprotected fighting words that by their very utterance inflict injury or tend to incite immediate breach of peace .

Hate speech:

A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like. -not a legal term, but is commonly understood to involve name-calling, slurs, and epithets that demean others on the basis of race, color, gender, ethnicity, sexual preference, religion, national origin, disability, etc.

Papish v. Board of Curators of the University of Missouri

Public universities can not ban speech if it doesn't interfere with rights of others

Unprotected categories of speech:

-Blackmail -Perjury -False advertising -Obscenity

Do courts normally find media liable?

Rarely - because a reasonable person is unlikely to have foreseen the harm .

The tinker test:

Schools cannot restrict symbolic speech unless it causes a substantial material disruption. School officials' desire to avoid a substantial, material disruption. The desire of school officials to avoid the unpleasantness of an unpopular view is not enough, without substantial disruption. -Is the speech disruptive? -Is the speech of low value? -Is the speech sponsored by the school and therefore perceived to reflect the school's official position and attitude?

United States v. Stevens:

-Case Info: Depicting displays in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed, directed to crush videos. --this case is specifically involving dog fights --Stevens was trying to sell videos of this illegal dog fighting -- He appealed to the court on the ground that his conviction violated the free speech clause of the first amendment---- US COURT OF APPEALS AGREED -- Question: is the law that you cannot distribute these materials unconstitutional? Court Response: Yes it is unconstitutional, therefore the statute is invalid. -Justice Alito dissent: This result encourages animal cruelty, the act was not invented to suppress speech but rather to end animal cruelty.

Fraser Approach - Bethel School District v. Fraser

-Offensive language used in school assembly with younger kids and principal suspended him -SC said school has right to protect audience, so his 1st Amendment rights were abridged

Hazelwood v. Kuhlmeier:

-Principal censored articles about pregnancy and divorce in school paper (prior restraint) -SC held that public HS principals can censor papers -Some circuits ruled that college papers can be censored too (Hosty v. Carter, 7th Circuit 2005)

R.A.V. v. City of St. Paul

A group of white teens burned a cross in a black family's lawn and their actions were upheld by the court due to their first amendment right and the city's inability to restrict that. - symbol aroused anger, alarm, resentment .

Tatro v. University of Minnesota

A mortuary sciences program had a significant interest in preventing students from "blogging" about cadavers.

Campus speech:

Supreme court established that universities have a greater obligation to create and maintain forums for brand public discussion than do public schools -when a university's funding "program is designed to facilitate private speech, the funding creates a public forum that prohibits the gov. control of the content of the 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. -government actions that discourage the exercise of a constitutional right cause a chilling effect.

Speech in the schools:

There is nothing in the First Amendment that distinguishes between speech for minors and adults The courts have a duty to weight educating youths and furthering society against protecting freedom of speech Courts have looked at schools as limited public forums Using the O'Brien Test, courts view this speech as content-neutral and apply TPM (time, place, manner) regulations

Public Forum Analysis

This is used when College sponsorship is an issue, when access to facilities has been requested, or when promotion of particular speech is sought

Cohen vs. California

USSC, 1971. Cohen wore a jacket that had a message stating "F*** the draft"; Political expression protected by the first amendment. -Overturned and Cohen won.

USA Patriot Act:

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

offensive speech:

although many different flavors of speech offend or cause discomfort, mental anguish or suffering, the supreme court has said the 1st amendment protects our right to express ourselves in our own words.

Material support:

any service, training, expert advice, or assistance to a designated terrorism organization.

Threats to national security:

both federal and state legislatures have enacted laws to protect the public from speakers who would incite violence or the overthrow of government

Laws that protect national security by punishing speakers who incite violent actions are:

constitutional if they pass the Brandenburg test.

Supreme court 1st amend debate:

for years, the supreme court struggled to develop a test that would clearly delineate between dangerous incitement to violence and the legitimate right of people to express themselves vehemently and angrily

Speech Codes

historically transmitted, socially constructed, system of terms and meanings, premises and rules, pertaining to communicative conduct

proximate cause:

the legal determination of whether it is reasonable to conclude the defendants actions led to the plaintiff's injury - to determine proximate cause, courts decide whether there is a direct relationship between the defendant's action and the plaintiff's injury.

Eloisa v. United States:

the supreme court sidestepped the 1st amendment question of when internet posts constitute true threats publishable by law. -Anthony eleonis convicted of making FB threats to his wife, said he did not intend threats, just composing therapeutic rap lyrics -Theres one way to love you, but a thousand ways to kill you"

chilling effect:

the tendency for unclear government regulations to discourage the exercise of constitutionally protected rights

foreseeability:

to determine a dependent's duty of care, courts often ask whether the defendant should have foreseen the plaintiff's injury - should the media have anticipated their action would cause harm?

fighting words:

words not protected by the 1st amendment because they cause immediate harm or illegal acts

under inclusive:

A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment. -ex. R.A.V v city of st paul punished only a specific subset of fighting words that the gov found particularly objectionable

categorical balancing:

-balances whole categories of speech against competing rights to determine the extent of constitutional protection -establishes categories of speech based on the content and the circumstances of the speech -weights different categories of speech against each other to establish a hierarchy of speech rights.

Public schools may regulate expression when it:

-disrupts education -is lewd or obscene -is sponsored by the school or is likely to be understood to represent the school

Court ruling on regulation of speech:

-ruled that regulation of speech is unconstitutional if it is not narrowly tailored to avoid infringing on protected speech and does not address a problem more sever than abstract expressions about result.

Physical harms and the harms of the media:

-some blame TV for youth violence -"exposure to violence in entertainment media alone does not cause a child to commit a violent act. -some have tied obsessive exposure to these media to the mass murders at Sandy Hook, etc. --> a federal district court said networks did not have any duty to stop showing violent programs and could not be held responsible for the teens actions - to dictate a limit on violent content would violate the 1st amendment rights of the networks and the public.

The incitement test:

-the supreme court replaced its "clear and present danger" standard with the incitement test. -the test establishes that speech looses 1st amendment protection when it is likely to prompt imminent violence. -requires a showing that exposure to the media content would cause immediate violent or unlawful activity (nearly impossible to prove)

Fighting words doctrine - the 1st amend does not protect words that:

1. are directed at an individual 2. automatically inflict emotional harm or trigger violence.

For speech to become punishable as a true threat, a speaker must:

1. direct the threat toward one of more individuals 2. with the intent of causing the listener(s) 3. to fear bodily harm or death.

court created a test that said gov could punish the advocacy of force only when gov could prove the advocacy was:

1. directed to 2. was likely to incite imminent lawless action

the incitement test allows gov. constitutionally to prohibit speech that is:

1. directed toward inciting immediate violence or illegal action and 2. likely to produce that action

To win a lawsuit for injury caused by media negligence, what must a plaintiff prove?

1. reasonable foreseeability of harm or 2. proximate (directly related) cause of the harm

Brown v. Entertainment Merchants Association:

California Law banning violent videos games unconstitutional -challenged california law that prohibited the sale of violent video games to minors and required package labeling for video content. -court said the law singled out video games -said that violent video games deserve full first amendment protection.

viewpoint-based discrimination

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally. -ex. R.A.V v city of st paul punished certain forms of racist speech (cross burnings) but not others.

Criticism of the patriot act:

Critics argue that the Patriot Act as well as other laws that increase government surveillance to advance the war on terrorism threaten fundamental civil liberties.

Virginia v. Black:

Cross burning- illegal if used as an attempt to intimidate another person or group -burning cross is such a threatening instrument of racial terror and imminent violence that its power to intimate overshadows free speech concerns.

clear and present danger:

Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm. -gov had a right and duty to prevent speech that presented a clear and present danger to the nation.

as applied:

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

the 1st amendment's protection of disruptive speech:

is variable and uncertain

free speech not protected if:

it causes imminent harm or plays "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from is clearly outweighed by the social interest in order and morality.

A pharmacist wrote a book about drugs people can buy without a prescription. The author said Drmxz, an over-the-counter cold medication, had no side effects. However, Drmzx can cause serious problems in people who have liver problems. Cheryl, who has liver trouble, read the book, bought and took Drmzx, and suffered severe symptoms. Cheryl sued the book publisher for causing her injuries. Cheryl likely will ______.

lose, because courts say book publishers cannot verify all the info in every book they publish.

Symbolic speech:

nonverbal expression, in the form of burning flags, wearing armbands or marching through the public streets. -court says symbolic speech deserves 1st amend protection in some cases -only actions that are closely akin to pure speech are viewed as symbolic speech.

true threat:

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

current standard (fighting words):

speech loses its constitutional protection when the speaker intents to provoke violence or incite immediate unrest in a targeted individual or group.

incorporation doctrine:

the 14th amendment concept that most of the bill of rights applies equally to the states -prevents the states, as well as the federal government, from abridging protected 1st amend. rights.