COM LAW -INFORMATION AFTER MIDTERM

fair use

-A copyright concept that allows works to be used in ways that otherwise would infringe on the copyright but are allowed because the uses are particularly beneficial to society and not particularly harmful to the copyright owner. Fair use thus limits the rights of copyright. Four-factor Balancing Test for Fair Use: -Section 107 of the 1976 Copyright Act indicates the following factors should be used to determine if a potentially infringing use of a copyrighted work is in fact "fair use": (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (ex: how many 300 out of 500 pages is too much)...and (4) the effect of the use on the potential market for or value of the copyrighted work.

Trademark

-A recognizable mark, sign, word, phrase, picture or other representation designed to identify a product, service, business, commercial or non-commercial entity, or other interest or group. -be novel or unique. -Exists in perpetuity. -May be lost after several years if not utilized or protected.

Trademark Generics

-A trademark becomes genericized when it begins as a distinctive product identifier but changes in meaning to become generic. -This happens when the products or services with which the trademark is associated have acquired substantial market dominance or "mindshare" such that the primary meaning of the genericized trademark becomes the product or service itself rather than an indication of source for the product or service. -Intellectual property rights in the trademark may be lost and competitors able to use the genericized trademark to describe their similar products. EX: Band-aid (is a brand for one type of band-aid but we call all brands of band-aids "band-aids"). EX: Q-Tips (brand for one type of ear cleaner but we call all brands of ear cleaners with cotton on them Q-tips).

First copyright law

-All the original states had their own copyright statutes. -Congress set out to craft a single, federal standard for copyright to supersede the state copyright statutes, which diverged in the scope of rights protected and the procedural requirements for securing copyright. *Copyright Act of 1790: -Modeled on the 1710 Statute of Anne, the first English copyright law. -Created a set of limited, but exclusive, rights for authors to copy, print, and sell certain of their expressive works: -Extended protection only to the authors of maps, charts, books, and manuscripts. -Copyright term lasted for 14 years, with one renewable 14-year term. -Authors could bring private suits to recover monetary damages against infringers who copied, imported, or sold their copyrighted works without permission. -One-half of the damages recovered would go to the federal government. -The act did not prohibit the copying, reprinting, or selling of works by noncitizens, thereby permitting piracy of foreign authors' works.

Reno v. American Civil Liberties Union (1997)

-Congress passed the Communications Decency Act of 1996 (CDA) to protect minors from harmful material on the Internet. -Two provisions of the CDA were challenged by the American Civil Liberties Union (ACLU) and other plaintiffs. -The first provision at issue made it a crime to knowingly transmit "obscene or indecent" messages to anyone under 18 years old. -The second provision prohibited displaying to anyone under 18 "patently offensive" material. -A three-judge District Court panel found the CDA provisions in violation of the First Amendment.... The anti-indecency provisions of the 1996 Communications Decency Act ("CDA") violated the First Amendment's Free Speech Clause. -The U.S. Supreme Court agreed, holding that the two provisions of the CDA were overbroad (too vague) in the content they censored, and thus the provisions violated the First Amendment. -the regulation created a "chilling effect" on speech and prohibited more speech than necessary to achieve the objective of protecting children. -The FCC's actions (made by attorney general Reno), were not criminally punished but ACLU did win case. -TV and radio broadcasts, "as a matter of history, had 'received the most limited First Amendment protection' ... in large part because warnings could not adequately protect the listener from unexpected program content," as opposed to Internet users, who must take "a series of affirmative steps" to access explicit material. -Justice Stevens opinion of court. -Provisions of the 1996 Communications Decency Act ("CDA") are an unconstitutional, content-based restriction of First Amendment free speech rights. -Speech on the Internet: entitled to the same high degree of First Amendment protection extended to the print media as opposed to the reduced level given the broadcast media.

Harper & Row, Publishers, Inc. v. Nation Enterprises (1985)

-Former President Gerald Ford contracted with Harper & Row to publish his memoirs in 1977. Harper & Row negotiated a prepublication agreement with Time Magazine for the right to excerpt 7,500 words from Ford's account of his pardon of former President Richard Nixon. -Before Time released its article, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Subsequently, The Nation, using approximately 300 words from the manuscript, scooped Time. Harper & Row sued The Nation, alleging violations of the Copyright Revision Act of 1976. -The Court held: The Nation's use of verbatim excerpts from the unpublished manuscript was not a fair use. -The unpublished nature of a work is a key factor tending to negate a defense of fair use. "Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use," wrote Justice O'Connor. -O'Connor's majority opinion: "The Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."

U.S constitution Article 1 section 8

-Gives the United States Congress the power to grant copyrights and patents. -"The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Time, Manner, Place Restriction Examples

-Imposing limits on the noise level of speech. -Banning amplification devices. -Capping the number of protesters who may occupy a given forum. -Restricting where protests can happen. -Barring early-morning or late-evening demonstrations. -Restricting the size or placement of signs on government property.

Symbolic speech

-Nonverbal, nonwritten forms of communication. -Protected by the First Amendment unless it causes a specific, direct threat to another individual or public order. -At times, symbolic speech is more regulated than traditional forms of speech because it involves conduct or action, not simply words. (it's considered easier to regulate expressive conduct (actions) than words. )

Landmark cases (1) "symbolic speech"

-Stromberg v. California (1931): a California law that prohibited the display of a red flag as a sign of opposition to government was unconstitutional because red flags are a part of free political discussion. RESULT: (court said you can't outlaw red flags because they are expressive free speech.) -West Virginia State Board of Education v. Barnette (1943): compulsory flag salute laws were unconstitutional because they amounted to compelled symbolic speech. RESULT: (Court said you can't force someone to salute or not salute the flag). -Tinker v. Des. Moines Independent Community School District (1969): black armbands worn by students to protest the Vietnam War are symbolic speech & is entitled to First Amendment protection. -Texas v. Johnson (1989): Court said the burning of an American flag is a form of political protest. (Therefore protected by the first amendment free speech).

Teachers on SOCIAL MEDIA: how communication can or can't be restricted:

-Teachers communicating directly with students. A. Spanierman v. Hughes (U.S. District Court of Connecticut, 2008) -Jeffery Spanierman, teacher, used his MySpace account ostensibly "to communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct causal, non-school related discussions." -The site included pictures of students in close proximity to pictures of naked men with inappropriate comments beneath the pictures. -Spanierman's contract not renewed. -Court rejected his First Amendment claim: --First, (NOT CONTENT OF PUBLIC CONCERN) "almost none of the contents of the Plaintiff's profile page touched matters of public concern. The majority of the profile page consisted of personal conversations between the Plaintiff and other MySpace users." --Second,(CONTENT UNRELATED TO DECISION) school officials demonstrated that the only content that addressed a matter of public concern, a poem protesting the Iraq war, was not material to the decision to end the employment relationship with Spanierman. --Third, (DISRUPTIVE) even if the poem had been a factor, the evidence suggested that school officials were justified to not renew Spanierman's contract based on the disruptive effect the other MySpace content had on the learning environment. B.) Munroe v. Central Bucks School District (U.S. District Court for Eastern District of Pennsylvania, 2014) (Many employees have faced discipline for Facebook posts about their bosses, co-workers, or students.) -3rd Circuit Court of Appeals ruled against a Pennsylvania teacher who was discharged after negative blogs about her students and their parents. -The appeals court: "We find that [the teacher's] various expressions of hostility against her students would disrupt her duties as a high school teacher and the functioning of the School District."

Sony Corp. of America v. Universal City Studios, Inc. (1984)

-Universal Studios and the Walt Disney Company sued Sony for development of its Betamax video tape recording format for manufacturing a device that could be used for copyright infringement. -The making of individual copies of complete TV shows for purposes of time shifting does not constitute copyright infringement but is fair use. *Sony won case.

SOCIAL MEDIA: how communication can or can't be restricted:

1. Packingham v. North Carolina (2017) Social media "websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard." - court. -Supreme Court invalidated a North Carolina law that prohibited sex offenders from accessing social media websites as overbroad. the law also criminalized the legal behavior to use social media. 2. Student Speech Cases: (what is the extent of school officials' power to regulate students' off-campus communications over social media?) *ASK THIS QUESTION: is the off-campus speech significantly disruptive? ... if so, it can be regulated. A.) Bell v. Itawamba School District (2015) -The 5th U.S. Circuit Court of Appeals: public school officials could punish a student for a rap song he created off-campus and posted on Facebook and YouTube (the video referenced two teachers who allegedly engaged in sexually inappropriate behavior with female students). (NOT PROTECTED SPEECH) -talking about teachers = lot of gossip = teachers can't do their job at school. B.) Mahanoy Area School District v. B.L. (2021) -The USSC: a cheerleader's vulgar post to Snapchat after not making the varsity squad did not pass the substantial disruption test and the student's free speech rights protected her from school discipline. (PROTECTED SPEECH) -not that disruptive. 3. Public Employees Speech cases: (see Pickering and connick test) A.) Keyishian v. Board of Regents (1967) -USSC struck down a New York loyalty oath law that had been used to dismiss teachers. "you do not have to declare loyalty to a school or system of government." B.) Pickering v. Board of Education (1968) -Pickering dismissed for sending a letter to the editor of the local newspaper, criticizing the school board for its allocations of funds for academics and athletics. (PUBLIC...STILL PROTECTED SPEECH) -USSC acknowledged that "the threat of dismissal from public employment . . . is a potent means of inhibiting speech." -Justice Thurgood Marshall wrote, "the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public." C.) Tinker v. Des Moines (1969): -although about student speech, the Court wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (Black armbands = PROTECTED SPEECH). D.)Givhan v. Western Line Consolidated School District (1979) -A public school teacher in Mississippi was discharged after complaining to her principal about racial discrimination. (DIRECT speech is also PROTECTED speech) -The USSC held a public school teacher does not lose her free speech rights simply because she chose to speak on an issue of PUBLIC CONCERN to her employer directly rather than to the public at large. (both directly and publicly are PROTECTED speech). E.) Hazelwood School District v. Kuhlmeier (1988) -Public school officials can regulate school-sponsored student speech as long as there is a legitimate educational purpose for their action. -Schools have used Hazelwood to discipline and fire teachers for not regulating student speech. F.) Connick v. Myers (1983) -USSC held courts should balance an employee's right to speak on matters of public importance against an employer's interests in a disruptive-free workplace. PICKERING CONNICK TEST: 1. whether a public employee spoke on a matter of public concern. 2. If so, then court uses balancing prong (balance the employee's right to free speech against the employer's interests in an efficient, disruptive-free workplace). G.) Garcetti v. Ceballos: -public employees do not retain First Amendment protection for speech as part of their official job duties. -Ceballos was an employee in Garcetti's office who wrote a critical memo and alleged retaliation by his employer. -Justice Anthony Kennedy: "when public employees make statements pursuant to their official duties, the EMPLOYEES ARE NOT SPEEKING AS CITIZENS for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." (NOT PROTECTED SPEECH). F.) Exception: Lane v. Franks (2014) -The First Amendment protects a public employee who was terminated by his employer after he provided truthful court testimony pursuant to a subpoena. -Sotomayor: "Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment."

FCC v. Fox (2009) & 2012

2009 Held that the FCC had authority to regulate single utterances of indecent words or brief broadcasts of. nudity, the FCC decided to issue sanctions for two uses of the F-word on the Billboard Music Awards and brief depictions of female breasts and buttocks on the ABC series "NYPD Blue." 2012 -The Court overturned the FCC's sanctions. -Not on First Amendment grounds but on the basis that the FCC policies were too vague to provide prior notice of wrongdoing on the part of those whom it had charged with this offense.

The O'Brien Test

4-prong test for determining whether laws that impact expressive conduct pass constitutional scrutiny (Warren, O'Brien): "We think it clear that a government regulation is sufficiently justified if 1. it is within the constitutional power of the Government; 2. if it furthers an important or substantial governmental interest; 3. if the governmental interest is unrelated to the suppression of free expression; and 4. if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

Judicial Review : political speech

A corporation can have political speech because the courts have decided that corporations are people and therefore have a right to speech. *Commercial speech of a corporation: regulation must survive intermediate scrutiny to be constitutional. -Intermediate Scrutiny: the law must further an important government interest and do so by means that are substantially related to that interest. *Political speech of a corporation: must survive strict scrutiny to be constitutional. -Strict Scrutiny: the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

FCC v. Pacifica (1978)

A dad, riding in the car with his 15-year-old son, heard the uncensored broadcast at 2 p.m. Court allows FCC regulation because the broadcast media are a "uniquely pervasive presence" and easily accessible to children. (uniquely pervasive meaning so many people listen to it because it's played over public areas like cars and radios.) -distinction between indecent v obscene. css words were indecent not oscene so court could regulate it during certain times of the day to protect kids. But: the government does not have power to enforce a total ban on such speech. so yes we can regulate indecent content during prime hours. and sometimes obscene too. John Paul Stevens wrote the opinion arguing 1st amendment didn't protect the broadcast on radio. He stated broadcasting has the most limited first amendment protection bc so many others could be listening.

Lanham Act (Trademark Act of 1946): What counts as "Immoral or Scandalous" Marks

A.) Matal v. Tam (2017) Asian-American rock. Dance band, The Slants. -Federal law prohibiting trademark names that disparage others was unconstitutional because "speech may not be banned on the grounds that it expresses ideas that offend." -The provision sanctions viewpoint discrimination and is substantially overbroad. -Trademarks are private speech, not government speech. B.) Iancu v. Brunetti (2019) -Erik Brunetti, an artist and entrepreneur, founded a clothing line with the trademark FUCT, which he said stood for Friends U Can't Trust. -Invalidated a provision of federal trademark law that prohibited "immoral or scandalous" marks. *Both cases: the provision sanctions viewpoint discrimination and is substantially overbroad.

Copyright & Free Speech Cases

A.) Wheaton v. Peters (1834) -Henry Wheaton, the author of 12 volumes of reports of Supreme Court decisions, sued Richard Peters for selling a reprint of the volumes. -Justice John McLean: "no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right." Important for the concept of a public domain. B.) Bobbs-Merrill Co. v. Straus (1908) -In granting copyright holders "the sole right of vending the same," the copyright law did not intend to allow the holder of the copyright to set the prices for which books purchased could be resold. (So Amazon can purchase the books from the author and resale them for more or less money on Amazon). C.)Folsom v. Marsh (C.C.D. Mass., 1984) -A two-volume, 856-page book titled Life of Washington, compiled by Rev. Charles W. Upham included 353 pages published earlier in the 12-volume Writings of President Washington, compiled and edited by Jared Sparks. -The book's publication of letters from previous volumes did not constitute "fair use" and thus violated copyright. (that's too many pages) D.) Harper and Row v. National Enterprises (1985): -The prepublication of approximately 300 words of an excerpt from former President Gerald Ford's memoir, A Time to Heal, was not "fair use" but a copyright infringement. (It was a prepublication) E.) San Francisco Arts and Athletics v. U.S. Olympic Committee (1987) -San Francisco Arts and Athletics (SFAA) did not have a First Amendment right to use the word Olympics to promote the Gay Olympic Games. F.) Eldred v. Ashcroft (2003) -The CTEA extended the terms of existing and future copyrights by 20 years, effectively stopping any works from falling into the public domain from 1999 until 2019. -Ginsburg: Limited does not mean inalterable but "confined within certain bounds." Thus, a term of 95 years was just as "limited" as a term of 75 years. G.) Golan v. Holder (2012) -Section 514 of the Uruguay Round Agreements Act (URAA), which the U.S. adopted in 1994, extended copyright protection to foreign works that lacked U.S. protection. - These works had not been protected in the U.S. at the time of their publication because they were sound recordings made before 1972 or because the authors had not met certain U.S. legal technicalities. -The Court held the text of the clause did not deny authority to Congress to withdraw works from the public domain.

Immunity from Online Libel Suits

A.) Zeran v. America Online, Inc. (4th Cir.) (1997) -4th Circuit Court of Appeals: Section 230 of the CDA provides broad immunity to Internet service providers (ISPs) from online libel suits. The plain language of the statute mandated such a result as the law furthered Congress's purpose in protecting free speech online. B.) Barrett v. Rosenthal (Cal. S. Ct.) (2006) -California Supreme Court determined that section 230 protected all "user[s] of an interactive service provider" and that, consistent with Zeran, it applied whether an Internet user was a publisher or a distributor. -"The terms of section 230(c)(1) are broad and direct," the court wrote. "Given that 'distributors' are also known as 'secondary publishers,' there is little reason to believe Congress felt it necessary to address them separately . . . . We agree with the Zeran court, and others considering the question, that subjecting Internet service providers and users to defamation liability would tend to chill online speech."

Alcohol Advertising

Alcohol advertising, as commercial speech, is protected under the First Amendment as long as it does not promote unlawful activity and is not misleading. Rubin v. Coors Brewing Co. (1995) -Struck down a federal regulation prohibiting the display of alcohol content on beer labels. Liquormart, Inc. v. Rhode Island (1996) -overturned a Rhode Island law that prohibited advertising liquor prices, saying that under the First Amendment, consumers had a right to receive truthful product information and such commercial speech was protected speech.

Sequel by a Different Author (copyright stuff)

Although Margaret Mitchell has passed on, her estate still owns the copyright to her novel, Gone With the Wind. -In 1991, Alexandra Ripley wrote, and Grand Central Publishing company published, a novel titled, Scarlett: The Sequel to Margaret Mitchell's Gone With the Wind. Scarlett is not a parody. It tells the story of a character named Scarlett, who is based on the character in the original novel and who, after being rejected by Rhett Butler, leaves Tara to find her roots in Ireland. *Does not violate copyright b/c Mitchell's estate hired the authors to write them. Sequel books by authors who are not hired by Mitchell's estate, (and are not parodys), are violations of copyright.

Communications Decency Act

An attempt to protect minors from explicit material on the Internet -by criminalizing the knowing transmission of "obscene or indecent" messages to any recipient under 18; and -the knowing sending to a person under 18 of anything "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." * Section 230 of the the CDA: -gives those who republish defamatory comments online broad immunity from defamation actions. -Section 230 states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Right to Advertise

Bigelow v. Virginia (1975) -An individual had the right to advertise in Virginia the availability of abortion services in New York (although the procedures were at the time illegal in Virginia). -Justice Harry Blackmun asserted: "The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment."

The Radio Act of 1927 & The Communications Act of 1934

Both Established broad guidelines regarding the regulation of broadcast communication in America. FCC could regulate in the "public interest, necessity, and convenience." Created the Federal Communications Commission within the Executive Branch and charged it with carrying out the broad mandates in the Act. Has been amended over the course of the years as technology and society has changed. *See -The Commerce Clause -The Communications Act of 1934

How long do copyrights last?

Copyright protection generally lasts: -For works created on or after January 1, 1978: for the life of the author plus 70 years, commencing at the death of the last surviving author. -For works made for hire: 120 years from creation or 95 years from first publication, whichever ends earlier. -For works created but not published or registered for federal copyright protection prior to 1978: the life of the author plus 70 years (but no work was allowed to expire before 2003). If published prior to 2003: the protection lasts until 2047. -For works under federal copyright protection prior to 1978, through publication with a copyright notice or registration: a specified term of years. -Any work first published in 1922 or before: now in the public domain. -Works first published from 1923 to 1978 had a 28-year original term, and if renewed, an additional term of 67 years—a total of 95 years (they entered the public domain in 2019). -Copyrights expire at the end of the calendar year.

Copyrights and Patents

Copyrights: -are issued for any original work of authorship that can be fixed in any tangible medium of expression. -are not issued for "general ideas," such as story-lines or plots, or for historical or scientific facts. Patents: -are issued for any invention or process that is novel, non-obvious, and useful. -are not issued for discoveries in nature that are not altered.

MGM Studios, Inc. v. Grokster, Ltd. (2005)

Court: Although peer-to-peer ("P2P") software has legitimate and legal uses, companies promoting P2P sharing could be liable for inducing copyright infringement.

US v. O'Brien (case)

Draft Card Mutilation Act of 1965 required young men carry and maintain their draft cards in a presentable manner at all times. (people were saying they lost their draft card to get a bunch of them so they could burn it and then have another on them so they didn't get in trouble). -In a 7-1 decision the Court upheld O'Brien's conviction and upheld the law as a means of protecting the nation that incidentally affected freedom of speech. O'Brien test created and applied to this case: 1. Within the constitutional power of the Government; -Congress had the power to pass the Draft Card Mutilation Act of 1965. 2. Furthers an important or substantial governmental interest; -The efficient operation of the draft system. 3. The governmental interest is unrelated to the suppression of free expression; -The law wasnt/isn't related to the suppression of free expression. (it shouldn't stop you from expressing your opinion. Draft Card Mutilation Act of 1965 stated you should have your card on you always in a presentable manner. Does not stop O'brien from expressing his views about hating the war or military. The two are unrelated. There are other ways he can express himself without burning his card. 4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. -No alternative means that would more precisely and narrowly assure the continued availability of issued draft cards existed.

Texas v. Johnson (1989)

During the 1984 Republican National Convention in Dallas, Gregory Lee Johnson protested the Reagan administration's policies and Reagan's nomination for a second term. During the protest, Johnson set a U.S. flag on fire. Johnson was charged with violating a Texas state law that made desecrating the national flag a criminal offense. EVENTUALLY, In a 5-4 decision, the Court held that flag burning is expressive conduct protected by the First Amendment. The issue: "can states criminalize burning the American flag? O'Brien test applied to this case: 1. Within the constitutional power of the Government; -Flag burning is expressive conduct is protected by the First Amendment. 2. Furthers an important or substantial governmental interest; (why does the state care and did that reason actually occur in this specific case? ...1."disrupts peace"...didn't apply... ...2. wanted to preserve flag as symbol of national unity. -The government's interests in protecting the flag did not trump the right to engage in political speech. 3. The governmental interest is unrelated to the suppression of free expression; -Court rejected the application of the "fighting words" doctrine and the governmental interest in protecting a symbol. (interest in protecting a symbol was directly related to Mr. john trying to convey his message so therefore didn't pass as a "more lenient" standard. 4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. -The government may not ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence. *State laws criminalizing flag burning, (restrictions on Mr. Johnsons speech), were content-based speech restrictions that didn't survive strict scrutiny. -(not justified to someone to jail just to preserve a symbol) can't assign criminal punishment for burning flag. JUSTICE VIEWS / PERSPECTIVES: Brennan: "first amendment protects flag burning bc it contains a sufficient level of communication" (johnson was intending on conveying a particular message...those who witnessed his conduct would understand that message) Kennedy: "flag burning is distasteful but the majority result is correct. " Rehnquist dissented along with White and O'Connor: "Johnson can express himself without burning the flag". Could have made his point in other ways. Flag burning = fighting words and incites immediate breach of peace. Maintaining peace & order > expressive benefit from flag burning. Stevens: "Johnson wasn't prosecuted for his message but for the method he used to convey it." -criminalizing flag burning is a small burden on free speech (especially when other ways to communicate ideas exist), but burning a flag significantly tarnishes flag's value.

FCC Policy: The Fairness Doctrine

Federal Radio Commission ("FRC") founded in 1927 (case) Great Lakes Broadcasting Co. (1929): the "public interest requires ample play for the free and fair competition of opposing views, and the Commission believes that the principle applies to all discussions of issues of importance to the public." -Licensees were required from expressing their own views. -The limited number of broadcast frequencies available compelled the government to ensure that broadcasters did not use their stations simply as advocates of a single perspective. -FCC abandoned this position in (case) Mayflower Broadcasting Corp. (1940)

Sports Logos & Mascots

First Amendment: Sports logos and mascots using terms / images that may be offensive to different groups are generally protected. -NCAA: In 2005 the National Collegiate Athletic Association ("NCAA") ruled that teams at 18 colleges / universities using Native American mascots would be ineligible to participate in postseason events. It later reversed its judgments for the Central Michigan University Chippewas, Florida State University Seminoles, Mississippi College Chocktaws, and University of Utah Utes, because they had received support from the tribes after whom they were named. -Five other schools became eligible for postseason play after they changed their teams' names. -Washington Redskins - The Washington Football Team -In 1992 a Cheyenne, Susan Harjo, filed a complaint with the federal Trademark Trial and Appeal Board that sought to withdraw the trademark as a violation of Section 2(a) of the Lanham Act, the U.S. trademark law. -The complaint suggested that the board could refuse to register trademarks that consisted of "scandalous matter" or that brought national symbols "in contempt, or disrepute." -Pro Football, Inc. v. Harjo (D.C. Cir. 2005): lower courts should consider whether Harjo's initial claim was barred by the equitable doctrine of laches (b/c of the delay in bringing up the matter, Harjo was no longer entitled to her claim. -In 2014, the United States Patent and Trademark Office's ("USPTO") Trademark Trial and Appeal Board canceled the Redskins trademark registration after finding that the petitioners showed it was disparaging of Native Americans, which federal law prohibited. The team dropped the term "Redskin" from its name in 2020, opting to be instead the Washington Football Team until a new name can be found. -Cleveland Indians > Cleveland Guardians In December 2020, owner Paul Dolan announced the team would change the name following the 2021 season. 2021 season: New policy: eject people wearing appropriating headdresses or face paint.

By the Book: Hit man case

In 1993, Lawrence Horn contracted with James Perry to murder his ex-wife, their quadriplegic son, and their son's nurse, and Janice Saunders, Trevor's nurse. First Amendment No Bar to Civil Liability for Aiding and Abetting: Rice v. Paladin Enterprises (4th Cir. 1997) -The victims' survivors filed a wrongful death action against Paladin Press, alleging that the publisher had aided and abetted the murderer. -Paladin stipulated that it intended the book to be used by criminals and would-be criminals and that it intended and had knowledge that the book would be used to execute the crime of murder for hire. -District Court: Hit Man "merely advocates or teaches murder" and does not "incite or encourage" it. -*Fourth Circuit: "preparing" people for "imminent lawless action" is not protected speech.

Barnes v. Glen Theater, Inc.

Indiana passed a statute making totally nude dancing a criminal misdemeanor. 5-4 decision, Chief Justice William H. Rehnquist wrote the majority opinion Although nude dancing constitutes expressive conduct, Indiana could regulate nude dancing without violating the First Amendment. O'Brien test applied to this case: 1. Within the constitutional power of the Government; -Public-decency statute is clearly within the constitutional power of the state. passes. 2. Furthers an important or substantial governmental interest; -Protecting societal order and morality, which was well within the traditional police power of the state to provide for the public health, safety, and morals. passes. 3. The governmental interest is unrelated to the suppression of free expression; -The law isn't related to free speech. so it passes 4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. -Prohibiting public nudity was unrelated to the suppression of free expression in the form of erotic dancing (state allowed exotic dancing with G-strings and pasties). so it passes.

Newspapers & Equal Space

Miami Herald Publishing v. Tornilli (1974) -A Florida state law required newspapers to allow equal space in their newspapers to political candidates in the case of a political editorial or endorsement content. The USSC overturned the law. -Violates editorial freedom by "exact[ing] a penalty on the basis of the content." Newspapers are economically finite enterprises, so "editors may conclude that the safe course is to avoid controversy," thereby chilling speech.

Trademarks "Dilution" & "Tarnishment"

Moseley v. V Secret Catalogue, Inc. (2003) -The Federal Trademark Dilution Act of 1995 made trademark "dilution or tarnishment" actionable only if the owner of the "senior" mark could prove actual dilution or tarnishment as opposed to a potential or significant likelihood of dilution or tarnishment. *Federal Trademark Dilution Act of 1995 made trademark "dilution or tarnishment" actionable. -Victoria's Secret sued Victor Moseley for "dilution" and "tarnishment" under the FTDA. Moseley lost in the district and Circuit Courts. -Supreme Court ruled that Victoria's Secret must prove that the "junior mark" caused "actual dilution" of the senior mark, not just that there was a "mere likelihood" of dilution. -In 2006, the Congress passed the Trademark Dilution Revision Act which seeks to clarify the FTDA by stating that relief is warranted if a company can show that defendant's actions are "likely to cause dilution by blurring or dilution by tarnishment of the famous mark" (overturning Moseley v. V Secret Catalogue, Inc. (2003). -Back to court; the Circuit Court ruled for Victoria's Secret.

Matters of Public Concern

Nike v. Kasky (2003) -Raised First Amendment protection for corporate speech in matters of public concern. -In the 1990s, critics accused Nike of unfair labor practices and unsafe working conditions. -Nike responded with a public relations and advertising campaign. -In 1998 Marc Kasky invoked California's False Advertising Law and Unfair Competition Law to sue Nike for publishing false and misleading statements in this campaign. -Nike claimed that the statements were noncommercial speech on matters of public concern and thus constitutionally protected. -Nike prevailed in trial court and in the California Court of Appeals. However, the California Supreme Court reversed the lower courts. -(SO CORP. SPEECH IN MATTERS OF PUBLIC CONCERN NOT PROTECTED)... -U.S. Supreme Court agreed to hear the appeal, then dismissed it as "improvidently granted." -The case was settled out of court eventually, without a substantive ruling on the constitutional issues.

Copyright: Four-factor Balancing Test for Fair Use: Nonprofit, Educational Uses

Nonprofit, Educational Uses -Commercial application not fair use; nonprofit, educational use is fair use. -Other fair uses mentioned in the act: -"purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." -Fair use purposes mentioned in the legislative history of the act: -a parody, a summary with brief quotations, or reproductions by libraries or archives for preservation purposes. -If a use is "transformative"—if it creates some new and markedly different work that benefits the public—then such use may be fair use. -The legislative history of the act contains specific guidelines as to what constitutes fair use for teaching uses of books, articles, and musical works.

Pickering Connick Test

Pickering Connick Test (two-part test) to determine whether or not a speech is protected or not for a public employee. -First: whether a public employee spoke on a matter of public concern defined as a matter of larger societal significance or importance (if a public employee was disciplined for expression that is characterized as more of a private grievance, then the employer prevails). -Second: if a public employee spoke on a matter of public concern, then the court proceeds to the balancing prong (balance the employee's right to free speech against the employer's interests in an efficient, disruptive-free workplace).

Jones v. Dirty World Entertainment,

Plaintiff Sarah Jones was the unwelcome subject of several posts anonymously uploaded to www.TheDirty.com, a website operated by defendants Hooman Karamian, a.k.a. Nik Richie, a.k.a. Corbin Grimes ("Richie") and DIRTY WORLD, LLC ("Dirty World"), and of remarks Richie posted on the site. -The website enabled users to anonymously upload comments, photographs, and video, which Richie would then select and publish along with his own distinct, editorial comments. -Defendants (richie) claimed that § 230 of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 230, barred Jones' claims. -first trial was a mistrial -second trial resulted in a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages. -defendants filed for an appeal; maintained that sect. 230(c)(1) barred Jones' claims. -Supreme court concluded: Under the CDA, neither Richie nor Dirty World were the creators nor the developers of the challenged defamatory content that was published on the website. Jones' tort claims sought to impose liability on defendants as if they were the publishers or speakers of those statements. Section 230(c)(1) therefore barred Jones' claims. Supreme court reversed the district court's judgment in favor of Jones, and demanded the district court apply the law to the case, which favored the defendant. MY THOUGHTS: it's more important to protect free speech and allow jerks like Richie to repost stuff that's not true than it is to not allow other people to repost stuff that might be true.

Time, Manner, Place Restriction (Restrictions on free speech)

Restrictions on when, where, and how someone speaks. -To survive time, manner, place restrictions (established in Ward v. Rock Against Racism (1989)), laws must be: -Content neutral -Narrowly tailored -Leave open ample alternative channels for communication (people are given a forum that is accessible and where intended audience is expected to pass. can't force protesters to go to randalls island.) have to be able to afford to do the other things that are more expensive if they say you can't do the less expensive things. -Content-based restrictions trigger strict-scrutiny *The requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation." (This prong does not require time, place, and manner restrictions to be the least restrictive or least intrusive means of achieving the government's end.) -Regulations that fail this test frequently feature broad restraints on traditional forms of expressive activity—e.g., imposing sweeping prohibitions on parades, demonstrations, residential picketing, door-to-door leafletting, or public hand billing.

Parody and Satire

Satire: - a literary form that humorously mocks, ridicules, and scorns individuals and political or social practices, is one of the most effective means of criticism. Parody: - a subset of satire, is an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect. -Has greater latitude regarding fair use since parodies often appropriate the entirety of a work to be effective. -EX#1: Campbell v. Acuff-Rose Music, Inc. (1994) --The rap group 2 Live Crew did not violate copyright law with the song "Pretty Woman," a parody of the previously released "Oh, Pretty Woman." --Justice David Souter: "Parody, by its nature, transforms an original. 'Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.'" EX#2: Yankee Publishing Inc. v. News America Publishing, Inc. (S.D.N.Y. 1992) -Judge Pierre N. Leval: "First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed." (even shitty parodies that aren't funny and don't make sense are still protected).

Klinger v. Conan Doyle Estate (2014)

Sir Arthur Conan Doyle authored four novels and fifty-six short stories featuring Holmes and Watson, published between 1887 and 1927. The 7th Circuit Court: -The characters of Holmes and Watson had entered the public domain and so had the story elements of the works on which the copyright protection had expired, i.e., published prior to 1923, and hence they can be used in subsequent works without procuring a license. -However, the copyright protection in works published in and after 1923, was still valid, and the unique expressions used in those works could still not be used without the permission of the defendants until the time copyright expired. *Arthur Conan Doyle Estate Sues Netflix: -The suit alleges the film, Enola Holmes, infringed copyright by depicting a warmer and more emotional version of Sherlock Holmes. -Conan Doyle died in 1930. Last 10 stories written between 1923-1927, were still under copywrite when the case was filed. -Holmes only shows his feelings in the final novels, arguing that as a result Springer's depiction and Netflix's adaptation violated their copyright. -The case was dismissed with prejudice at the stipulation of both parties (it likely was settled). netflix probs paid them some money.

Copyright: Four-factor Balancing Test for Fair Use: Nature of the copyrighted work

Take into account the nature of the protected work: -Use of a published work than an unpublished work. -Use of a factual work (e.g., a biography or research report) is more likely to be deemed fair than is use of an original "core copyright" work (e.g., a play or musical work). -Weighed in total amount and in its substantiality (how important the part used is to the original work). -The impact of the use on the market value of the original work, considering whether the new use creates some kind of substitute for the original or whether the new use is one for which the owner of the original work might expect to be compensated.

warning labels:

The Federal Cigarette Labeling and Advertising Act of 1965 -required the warning "Caution: Cigarette Smoking May Be Hazardous to Your Health." -June 1967 the Federal Trade Commission ("FTC"): -recommended "Warning: Cigarette Smoking Is Dangerous to Health and May Cause Death from Cancer and Other Diseases." -1969 Public Health Cigarette Smoking Act -prohibited cigarette advertising on TV and radio -required "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health." Comprehensive Smoking Education Act of 1984 Required: -SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy. -SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. -SURGEON GENERAL'S WARNING: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight. -SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide. The Comprehensive Smokeless Tobacco Health Education Act of 1986 -Required three rotating warning labels on smokeless tobacco packaging and advertisements: 1. WARNING: This product may cause mouth cancer. 2. WARNING: This product may cause gum disease and tooth loss. 3. WARNING: This product is not a safe alternative to cigarettes. -Warning labels on cigarette packages in the United States are weaker and less prominent than those of many other countries.

The Fairness Doctrine Upheld:

The Federal Communications Commission ("FCC") could require broadcast licensees to devote time to discussing public issues and give each side of these issues fair coverage. *Red Lion Broadcasting Co. v. Federal Communications Commission (1969) -Conservative radio commentator Reverend Billy James Hargis denounced journalist Fred Cook, who wrote a book criticizing Barry Goldwater. -upheld the FCC fairness doctrine, stating that if a station makes a personal attack on an individual, it must also give that person an opportunity to respond to the criticism. Opinion by Justice White: Believing that the specific application of the fairness doctrine in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance rather than abridge the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional, reversing the judgment below in RTNDA and affirming the judgment below in Red Lion. -The marketplace of ideas : "It is the RIGHT OF THE VIEWERS AND THE LISTENERS, not the right of the broadcasters, which is paramount. ... It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market." -"Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. IT IS THE RIGHT OF THE VIEWERS AND THE LISTENERS, NOT THE RIGHT OF THE BROADCASTERS, which is paramount." EVENTUALLY: The Fairness Doctrine was Abandoned because -1980s: the deregulatory nature of the Reagan administration and technological advances invalidated scarcity arguments because more channels = more diversity of perspective. -Pressured the FCC to abandon the doctrine. -Federal Communications Commission (the FCC ) formally abolished the fairness doctrine in 1987.

Eldred v. Ashcroft (2003)

The critical legal issue involved in the case of Eldred v. Ashcroft is whether or not the 1998 Copyright Term Extension Act's extension of existing copyrights exceeds Congress's power under the Copyright Clause. Furthermore, does the Act's extension of existing and future copyrights violate the First Amendment? -Petitioners argue that a copyright once set is fixed, meaning the CTEA violates the Copyright Clause because the Clause only states that Congress can implement copyrights for a limited term. -petitioners do not disagree in the time span itself, but with the Congress's ability to change a secured Constitutional boundary, such as an existing term on already published works. -also argue that the First Amendment's free speech guarantee is violated because the CTEA is a content-neutral regulation of speech that fails the judicial scrutiny that should be applied for such regulations. The majority for the District court argued that Congress can extend terms for existing and future copyrights. - "limited time" period presented under the Copyright Clause does not declare the term for a copyright must be fixed and unchangeable from the time of the copyrights execution. -declared the terms of an existing copyright can be altered to be equivalent to future copyrights and still remain under the category of "limited". They also argued that the First Amendment does not provide any such right for others to use the copyrighted work of another. Copyrights in general do not keep ideas from being expressed and even provide "fair use" of the specifications under the Copyright. Copyrights only give authors exclusive rights to a specific form of expression. The court rejected the First amendment challenge and held that CTEA is rational, and Constitutional.

Lanham Act (Trademark Act of 1946)

The principal piece of federal legislation dealing with trademarks. (But there is common law in this area as well.) -Name for Representative Fritz G. Lanham -Passed in 1946 -Section 2(a) of the Act prohibits the registration of, or allows for the de-registration of, any trademark that the U.S. Patent and Trademark Office ("PTO") deems, in its opinion, to be "immoral, scandalous, or disparaging to any persons, institutions, beliefs, or national symbols." -The Act prohibits activities such as trademark infringement, trademark dilution, and false advertising. -The Lanham Act violates this bedrock principle by determining what speech is too "scandalous" to merit trademark protection. -Critique: Under the First Amendment, viewpoint-based regulation of private speech is never acceptable, regardless of the controversy of the viewpoint.

Copyright Revision Act of 1976

Took effect on January 1, 1978. -Copyright protection extends to all "original works of authorship" to take into account new kinds of media (e.g., still photography, motion pictures, or recordings). -Codified fair use into law, building in free speech protections.

Turner Broadcasting System, Inc. v. FCC

Turner I (1994): First Amendment standards apply to cable television and broadcast media. Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 were content neutral. Decision didn't decide whether the federal regulation of speech infringed upon speech rights (remanded to lower court to decide; came back as Turner II). Turner II (1997): the Court decided that the "must-carry" provisions were constitutional. Sections 4 and 5 of the 1992 Act required that cable television systems reserve a certain percentage of their channels for the free transmission of local broadcast television programs. Satisfies the O'Brien Test, so therefore constitutional. IN OTHER WORDS: -"Must carry" laws require cable providers to carry "local" broadcast channels. -The O'Brien Test used because disagreement existed as to whether "must carry" laws targeted "speech." -The Supreme Court ruled that "must carry" laws are an economic regulation of an industry, with only an indirect impact on speech. *O'Brien Test Factors: 1) the law is within the constitutional power of the government to enact; 2) the law is directed toward an important and substantial governmental end; 3) the focus of the law is unrelated to the suppression of expression; 4) any incidental burden the law may place on expression is narrowly tailored to achieve the legitimate governmental end.

Duty for Broadcasters:

Twofold duty for broadcasters: -First, broadcasters were required to cover adequately controversial issues of public importance. -Second, such coverage must be fair by accurately reflecting opposing views, and it must afford a reasonable opportunity for discussing contrasting points of view.

Court held that public has the right to receive lawful information

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976): -The Court struck down a state law making it illegal for pharmacies to advertise the price of drugs -Extended First Amendment free speech protection to commercial speech. -***Justice Harry Blackmun asserted that the First Amendment not only includes the right of the speaker TO SPEAK but also the right of the LISTENER TO RECEIVE information (e.g., lawful information about drug prices or abortions in other states)

PragerU v. YouTube (GOOGLE)

Youtube restricted PragerU videos on their site -they blocked certain videos the same way they do those that are pornagraphic or obscene just because they didn't agree with the content. -Youtube wanted the protection of a public forum but wanted to select what content they want to add on their site like a private forum. PROBLEM = you cant be both. PragerU sued Youtube. PragerU lost PragerU v. Google= PragerU argues that YouTube is a state actor because it performs a public function. - It is true that a private entity may be deemed a state actor when it conducts a public function, but the relevant function "must be both traditionally and exclusively governmental." -This test is difficult to meet. It is "not enough" that the relevant function is something that a government has "exercised ... in the past, or still does" or "that the function serves the public good or the public interest in some way." . Rather, the relevant function must have been "traditionally the exclusive prerogative of the [s]tate." PragerU lost

Commercial Speech (Not protected and then protected)

commercial speech = commercial advertising, promises and solicitations. -Historically commercial speech was NOT protected under the First Amendment. Valentine v. Chrestensen (1942) -Commercial Speech is not protected by the First Amendment (the Court cited no reason or precedent for this conclusion). -F.J. Chrestensen distributed handbills advertising his business in the streets of New York City. -Police advised him that a city sanitation code prohibited his "distribution in the streets of commercial and business advertising matter," although "he might freely distribute handbills solely devoted to 'information or a public protest.' " -Chrestensen then produced a handbill advertising his business on one side and, on the other, protesting the city's refusal to provide wharfage facilities at a city pier for the exhibition of his submarine. -When the police attempted to prevent distribution of the revised handbill, Chrestensen sued and won an injunction against the city The Court assigned the responsibility for balancing the competing interests of businesses and the public to the legislature. -The justices opined Chrestensen's revised handbill was merely a subterfuge designed to evade the ordinance. -The Court made no attempt to explain why commercial speech constitutes a categorical exception to the First Amendment. ----------------------------------------------------- COMMERCIAL SPEECH PROTECTED: Beginning in the 1970s, the Supreme Court recognized it as deserving some First Amendment protection. -Now it's a form of protected communication, but it does not receive as much free speech protection as forms of noncommercial speech, such as political speech. -Includes commercial advertising, promises, and solicitations, had been subject to significant regulation to protect consumers and prevent fraud. Central Hudson Test: (test created to see if commercial speech is constitutional.) (1) the commercial speech must relate to lawful activity and not be misleading (2) the government regulation must support a substantial governmental interest; (3) the regulation must directly advance that substantial governmental interest; and (4) the regulation must not be more extensive than is necessary to serve the governmental interest.

The Communications Act of 1934 (and its various amendments)

gives the Federal Communication Commission (FCC) the power to regulate expansively in the area of broadcast communication. Brought together two communications industries: -common carriers (e.g., telecommunications—in the 1930s these took the form of utilities such as railroads and telegraph), and -content carriers (e.g., broadcast media) The Commerce Clause (of Article I, section 8) gives Congress the power to pass the Communications Act of 1934 (and its precursor, the Federal Radio Act).

some states Allowed cities to ban alcohol and cigarette advertising on billboards.

some states Allowed cities to ban alcohol and cigarette advertising on billboards, which are easily viewed by minors, implicitly accepting city arguments that such advertising increased alcohol consumption and that their regulation was narrowly drawn to advance a compelling government interest.

Lorillard Tobacco Co. v. Reilly (2001)

uState restrictions on tobacco advertising preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA"). uThe degree to which those that had not been preempted survived First Amendment scrutiny. uStruck down restrictions on outdoor advertising and requiring stores put cigarettes on shelves higher than five feet from the floor. uUpheld provisions placing tobacco products behind counters and prohibiting their sale through self-service machines as being "narrowly tailored to prevent access to tobacco products by minors." uSuch rules aimed specifically at regulating "conduct" rather than at "the communication of ideas."