COMM 454-- Chp 6, 7, 9, 10, 14

Dissenting views concerning private morality (as a rule, expressed in a nonerotic way)

Beliefs about private morality can range from those on legalized gambling to those concerning the use of drugs or cheating on an exam. Here in nonconforming opinions on premarital sex, 'forbidden' sex acts, homosexuality, same-sex marriage, group sex, and so forth. In the past, some church authorities even considered opinions favoring the right of divorce to be immoral.

Cohen v. California (1971)

A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "F*CK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).

Gooding v. Wilson (1972)

A Georgia state court convicted Johnny Wilson of violating a state statute. The statute provided that "[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor." On appeal, Mr. Wilson argued that the statute violated the First and Fourteenth Amendments. The Georgia Supreme Court rejected the argument. Mr. Wilson successfully sought habeas corpus relief from a Georgia federal district court. The U.S. Court of Appeals for the Fifth Circuit affirmed. he Supreme Court held that the Georgia statute was unconstitutional. With Justice William J. Brennan writing for the majority, the Court reasoned that the statute was unconstitutionally vague and overbroad. Quoting Speiser v. Randall, the Court noted that "the separation of legitimate from illegitimate speech calls for more sensitive tools than (Georgia) has supplied." Chief Justice Warren E. Burger dissented. He disagreed with not only the manner in which the majority reached its decision, but also its conclusion. Ultimately, he argued that the statute was narrowly tailored and did not suppress or deter "important protected speech." Justice Harry A. Blackmun also dissented, joined by Chief Justice Burger. He found it implausible that a state could not restrict speech that was as wildly offensive as in this case.

Edwards v. Aguillard 1986

A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be addressed, evolution or creation, teachers were obligated to discuss the other as well. The Court held that the law violated the Constitution. Using the three-pronged test that the Court had developed in Lemon v. Kurtzman (1971) to evaluate potential violations of the Establishment Clause, Justice Brennan argued that Louisiana's law failed on all three prongs of the test. First, it was not enacted to further a clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a "supernatural being created humankind," a doctrine central to the dogmas of certain religious denominations. Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial support of government to achieve a religious purpose."

Nebraska Press Association v. Stuart (1976)

A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused. The Court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, the unanimous court held that the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights. Chief Justice Burger reasoned that"a whole community cannot be restrained from discussing a subject intimately affecting life within it." (So many trials in Small Town Murder have to be done in a different town for reasons similar to this)

Origins of Obscenity Law: The Hicklin Rule

A long-standing obscenity standard based on whether a book or other item contains isolated passages that might deprave or corrupt the mind of the most susceptible person. 147-150

False doctrine (aka heresy)

A message of false doctrine teaches an "incorrect" religious belief concerning the basic tenets of the faith Ex. General Laws and Liberties of the Massachusetts Colony of 1646 "which legislated punishment for those who denied "the immortality of the soul, or resurrection of the body or who taught that any of the books in the Bible were not the 'infallible word of God."

Organization for a Better Austin v. Keefe, 1971)

A prior-restraint court order broadly prohibiting the distribution of leaflets of literature "of any kind" plus denying the right to picket 'anywhere' in the City in order to protest the business practices of a realtor, is unconstitutional even though the leaflets in question published the realtor's home phone number. The Court found that the realtor-plaintiff had not met the heavy burden of proof required to justify censoring messages critical of his business practices (Organization for a Better Austin v. Keefe, 1971)

Richmond Newspapers v. Virginia (1980)

After a series of mistrials in a murder case in the state of Virginia, a trial judge closed the trial to the public and the media. Defense counsel brought the closure motion; the prosecution did not object. Two reporters of Richmond Newspapers, Inc. challenged the judge's action. In a 7-to-1 decision, the Court held that the right to attend criminal trials was "implicit in the guarantees of the First Amendment." The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas. The Court also noted that the First Amendment guaranteed the right of assembly in public places such as courthouses. The Court emphasized that "certain unarticulated rights" were implicit in enumerated guarantees and were often "indispensable to the enjoyment of rights explicitly defined."

Branzburg v. Hayes (1972)

After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.

Sheppard v. Maxwell (1966)

After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial. Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. On appeal from an Ohio district court ruling supporting his claim, the Sixth Circuit Court of Appeals reversed. When Sheppard appealed again, the Supreme Court granted certiorari. In an 8-to-1 decision the Court found that Sheppard did not receive a fair trial. Noting that although freedom of expression should be given great latitude, the Court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting. The Cleveland television media's repeated broadcasts of Sheppard confessing in detail to crimes he was later charged with, the blatant and hostile trial coverage by Cleveland's radio and print media, and the physical arrangement of the courtroom itself - which facilitated collaboration between the prosecution and present media - all combined to so inflame the jurors' minds against Sheppard as to deny him a fair trial. The Court concluded that the trial judge should have either postponed the proceedings or transferred them to a different venue.

The Cable Franchise Policy and Communications Act of 1984

Allows local governments to ask for public, educational, and government channels when negotiating cable contracts. By law, cable companies cannot censor content on these channels.

Pittsburgh Press v. Pittsburgh Commission on Human Relations, 1973

An ordinance that prohibited Pittsburgh newspapers from publishing help-wanted advertisements in sex-designated columns was allowed to stand as contstitutional, even though the newspaper argued that the prohibition was a form of prior restraint (Pittsburgh Press v. Pittsburgh Commission on Human Relations, 1973)

Kingsley International Pictures v. Regents 1959

Another New York film case in which the non-obscene motion picture 'Lady Chatterley's Lover' was denied a license because it allegedly portrayed sexual "immorality" in a manner so as to "corrupt morals"). The Court rejected this censorship effort, asserting that New York authorities were attempting to suppress the idea that "adultery under certain circumstances may be proper behavior." Because the "First Amendment's basic guarantee is of freedom to advocate ideas," the Court added the censors had "quite simply ... struck at the very heart of constitutionally protected liberty."

Profane and disgusting speech

(Historically the term 'obscenity' fits here but in Anglo-American law the original meaning has been corrupted and the term 'obscenity' shifted to category 4, sexual and erotic) One of the most celebrated examples in US law concerned a New York City Radio station playing George Carlin's satirical monologue, "Filthy Words" which was built around what Carlin calls 'the seven words you cannot say" FCC issued a warning to the station about such programming, Supreme Court sided with the FCC and while the monologue was indecent for radio but not legally obscene

Stanley v. Georgia (1969)

(Stanley was convicted for having 8-mm. "stag" films in his home for his private use). The Court unanimously overturned the conviction, primarily because the Georgia law was an unconstitutional invasion of privacy. In later rulings, however, the Court made clear that the right of private possession did not mean there was a right to disseminate explicit sexual materials, even for private use.

Jacobellis v. Ohio (1964)

(The Ohio courts had found a brief, nonexplicit love scene in the film Les Amants to be obscene) Without altering the Roth test, the Court reversed the conviction, but the justices could not agree on a majority opinion, thus demonstrating the difficulty of securing agreement among judges about exactly what the term "obscenity" meant

Memoirs v. Massachusetts (1966)

(censorship of John Cleland's 1750 novel "Memoirs of a Woman of Pleasure" also known as "Fanny Hill") The Court declared "Fanny Hill" was protected by the Constitution because it had some literary value.

Redrup v. New York (1967)

(concerning appeals from several states of convictions for the sale of nonexplicit "girlie" magazines). The Court reversed the convictions, and took a step toward a consenting-adults view of obscenity by noting that there was no evidence of sale to juveniles or of pandering.

Ginzburg v. US

(publisher Ralph Ginzburg had been found guilty in federal court of mailing obscene publications). The Court sustained Ginzburg's conviction without ruling on the obscenity of the materials he mailed, but found him guilty of "pandering" (an offense with which he had never been changed)-- that is, of advertising his materials so as to "appeal to the erotic interest" of his potential customers Consequently, the crime of pandering was appended to the Roth test

Ginsberg v. New York (1968)

(the proprietor of a luncheonette sold nonexplicit "girlie" magazines to a juvenile). The Court sustained the convictions thus allowing New York and other states to have a stricter standard for disseminating sexual materials to minors than to adults.

Regulating Nonobscene and Indecent Content

1 Child pornography 2 Sexually oriented adult businesses 3 Cyberporn 4 Indecent broadcasting 5 Cable television

Prior Restraint of film: Requirements for film permit systems

1. Burden of proof. The burden of proof is upon the censor to show that the film is "unprotected expression" 2. Time Period. Censorship boards must expedite their business and either issue a license or go to court to restrain the showing of a film "within a secified brief period." 3. Judicial review. Prior-restraint laws must include a provision for prompt review by the courts of any decision to censor film.

Managing publicity

1. Continuance. A defendant can request a delay of a trial on the theory that news stories will be forgotten and the effect of the prejudicial publicity on potential jurors will fade over time. Judges are reluctant to grant such request for two reasons. First, the Sixth Amendment guarentees both an impartial jury and a speedy trial. To guarentee the latter, the Federal Speedy Trial Act of 1974 sets specific timelines. Judges have some discretion, but defendants must generally be indicted within 30 days of being arrested and brought to trial within 70 days of being indicted. Second, delays burden the judicial system: witnesses may because unavailable and memories fade over time. 2. Change of venue or venire. If pretrial publicity is extensive, a defendant can move for a change of venue within the same jurisdiction. If the defendant is charged under state law, the trial can be moved to a different location within the state. Such requests are seldom grated because a change of venue is expensive. As an alternative, defendants sometimes request a change of venire: the tiral is held in the jurisdiction where the crime was committed, but the jurors are imported from another jurisdiction on the theory that they will be less familiar with the care and therefore more likely to be impartial 3. Voir dire. To aid in jury selection, persons summoned for jury service are often required to answer a questionnaire about their vocations, life experiences, and other personal details that might be relevant to the case. During the voir dire process, attorneys can also question prospective jurors individually about any bias that might have resulted from pretrial publicity. If obvious vias is uncovered, an attorney can ask that a potential juror be removed for cause. Each side in a trial is also granted a number of peremptory challenges that can be used to remove potential jurors without giving a reason. (The number of such challenges depends on the magnitude of the crime and the jurisdiction). 4. Jury instructions and admonitions. After voir dire, the trial judge often issues general behavioral guidelines to the jurors. The American College of Trial Lawyers included the following language in its model instructions for impaneled jurors: "You may not use any printed or electronic sources to get information about this case or the issues involved. This includes the internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, Blackberries, iPhones, Smartphones, PDAs, or any other electronic device." In addition, the judge will often admonish jurors not to discuss the case. Recognizing the growing importance of social media, many judges will also instruct jurors not to discuss their cases via e-mail, text messages, blogs, Facebook, or other web sites. 5. Sequestration. If extensive publicity is expected during a trial, the judge can have the jurors isolated so they are not exposed to media coverage or other influences. This drastic remedy is only used in cases likely to generate dramatic and sustained media coverage. Sequestering a jury is expensive and can breed resentment among jurors, who are isolated from their family and friends.

What are the four religio-moral issues?

blasphemy, the scientific claims of Darwinism, advocacy of immoral ideals, and communication of sensual and erotic thoughts (called "obscenity" by the law)

What is prior restraint?

judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful

1992 Cable Act

required cable systems to carry most local broadcast channels prohibited cable operators from charging local broadcasters to carry their signal

1. National security

Documents that must be kept secret in the interest of national defense or foreign policy are exempt from disclosure. As defined by executive order, this exemption includes records who release "reasonably could be expected to cause damage to the national security" and authorizes the CIA and the FBI to withhold a wide variety of materials.

FCC v. Pacifica Foundation

During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. His list included sh*t, p*ss, f*ck, c*nt, c*cksucker, m*ther****er, and t*ts. The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son. The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions. "[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."

Scientific information and opinion

This category covers two types of scientific messages: those presenting information about human sexuality (such as sex education pamphlets and materials on birth control) and those concerning nonsexual scientific theories about the universe, creation, and evolution. Ex. late 1930s and 1940s the US Post Office tried to prevent the mailing of a Consumer's Union pamphlet titled 'Analysis of Contraptive Materials'. After a legal battle, in 1944 the federal courts ordered the postal authorities to stop censoring such educational materials The second group is illustrated by John T. Scopes who was convicted in 1925 in Tennessee of teaching the theory of evolution in public school which was a violation of the state law.

Miller v. California

Marvin Miller was convicted of violating the California obscenity law for distributing advertising that contained pictures of explicit sexual activity

Kaplan v. California

Murray Kaplan, proprietor of an adult bookstore, was convicted of violating the California obscenity law for selling a plain-covered, unillustrated book that contained numerous verbal descriptions of sexual activity

Cantwell v. Connecticut (1940)

Newton Cantwell and his sons, Jehovah's Witnesses, were proselytizing a predominantly Catholic neighborhood in Connecticut. They were travelling door-to-door and approaching people on the street. Two pedestrians reacted angrily to an anti-Catholic message. Cantwell and his sons were arrested and charged with: (1) violation of a Connecticut statute requiring solicitors to obtain a certificate before soliciting funds from the public, and (2) inciting a common-law breach of the peace. The court said that resort to personal abuse directed at another is not protected speech under the Constitution. (However, the Court reversed the conviction of the Cantwells, who had played an anti-Catholic message on a phonograph, because they had not resorted to epithets or personal abuse)

What are the exceptions to First Amendment protections?

Obscenities, certain profane and slanderous speech, and "fighting words"

Chaplinsky v. New Hampshire (1942)

On a public sidewalk in downtown Rochester, Walter Chaplinsky was distributing literature that supported his beliefs as a Jehovah's Witness and attacked more conventional forms of religion. Chaplinsky called the town marshal "a God-d*mned racketeer" and "a d*mned Fascist." He was arrested and convicted under a state law that prohibited intentionally offensive, derisive, or annoying speech to any person who is lawfully in a street or public area. On appeal, Chaplinsky argued that the law violated the First Amendment on the grounds that it was overly vague. Did Chaplinsky's conviction violate the First Amendment? Writing for a unanimous Court, Justice Frank Murphy upheld Chaplinksy's conviction. The Court identified certain categorical exceptions to First Amendment protections, including obscenities, certain profane and slanderous speech, and "fighting words." He found that Chaplinsky's insults were "fighting words" since they caused a direct harm to their target and could be construed to advocate an immediate breach of the peace. Thus, they lacked the social value of disseminating ideas to the public that lay behind the rights granted by the First Amendment. A state can use its police power, the Court reasoned, to curb their expression in the interests of maintaining order and morality.

Miami Herald Publishing Company v. Tornillo (1974)

Pat Tornillo was Executive Director of the Classroom Teachers Association and a candidate for the Florida House of Representatives in Dade County, Florida. The Miami Herald published two editorials criticizing Tornillo and his candidacy. He demanded that the Herald publish his responses to the editorials. When the Herald refused, Tornillo sued in Dade County Circuit Court under Florida Statute Section 104.38, which granted political candidates criticized by any newspaper the right to have their responses to the criticisms published. The Herald challenged the statute as a violation of the free press clause of the First Amendment. The Circuit Court ruled that the statute was unconstitutional. The Supreme Court of Florida reversed this decision. In a unanimous decision, the Court reversed the Supreme Court of Florida and held that Florida's "right to reply" statute violated the freedom of press found in the First Amendment. In an opinion written by Chief Justice Warren E. Burger, the Court recognized the risks posed to the "true marketplace of ideas" by media consolidation and barriers to entry in the newspaper industry. However, even in that context, "press responsibility is not mandated by the Constitution and...cannot be legislated." The statute was an "intrusion into the function of editors," and imposed "a penalty on the basis of the content." Chief Justice Burger relied on New York Times v. Sullivan in that the "right to reply" statute "limits the variety of public debate," and was therefore unconstitutional. Justice William J. Brennan, Jr. authored a concurring statement. Justice Byron R. White authored a concurring opinion.

4. Trade secrets

This exemption applies to confidential commercial or financial information. For instance, if a government agency has pledged confidentiality in order to secure commercial information that it needs to do its job, the FOIA does not require it to release the information. Specific examples include records related to government contracts, as well as information gathered as part of agency oversight of broadcasting stations, drug manufacturing, and the stock market.

7. Confidential law enforcement records

This exemption applies to law enforcement records whose release would be harmful in any one of six ways: they would -interfere with law enforcement proceedings -deprive a person of a fair trial -invade privacy in an unwarranted manner -disclose confidential sources -reveal confidential enforcement plans and procedures -endanger the life or safety of persons

United States v. 12 200-Ft. Reels of Super 8mm. Film

The defendant was attempting to bring explicit sex materials from Mexico to the United States for his own personal use but was prohibited by US Customs from doing so

8. Records concerning regulation of financial institutions

The exemption applies to documents that relate to government examination and supervision of financial institutions, including audits and financial reports of banks, investment banking firms, and trust companies. This exemption is seldom involved in disclosure disputes because most such activity occurs under exemption 4.

5. Privileged government communication

This exemption applies to memoranda and letters circulated within an agency or between agencies in order to protect the deliberative process essential to democratic government.. Its purpose is to encourage frank, open discussion and debate concerning policy issues. Matters such as advice received drafts of proposals, various studies and reports essential to developing policy, and discussions by government attorneys in developing strategies for forthcoming litigation are covered.

2. Agency personnel rules and practices

This exemption covers routine matters related to the personnel rules of a government agency, such as law enforcement manuals that are the primary interest to those who work for a federal law enforcement agency.

Prior Restraint in Brief

1. Government may not use broadly drawn permit systems to prohibit distribution of all handbills, leaflets, and so fourth; ordinances prohibiting the distribution of all kinds of literature at all times and places and by any manner are invalid for overbreadth (Lovell v. Griffin, 1938) 2. Government may not exercise prior restraint on public distribution of handbills and leafletsas a means of keeping the streets clear of litter (Schneider v. State, 1939) 3. A prior-restraint court order broadly prohibiting the distribution of leaflets of literature "of any kind" plus denying the right to picket 'anywhere' in the City in order to protest the business practices of a realtor, is unconstitutional even though the leaflets in question published the realtor's home phone number. The Court found that the realtor-plaintiff had not met the heavy burden of proof required to justify censoring messages critical of his business practices (Organization for a Better Austin v. Keefe, 1971) 4. For a state to act through an administrative body, such as Rhode Island's Commission to Encourage Morality in Youth, to pressure book distributors to remove 'objectionable' books from their lists without stating specific standards for the meaning of the term "objectionable" and without judicial determination that the materials in question may be lawfully banned, is an unconstiutional prior restraint on freedom of speech (Bantam Books v. Sullivan, 1963) 5. Government may not prohibit publication of election-day editorials, not even in the name of fair and orderly elections (Mills v. Alabama, 1966). 6. An ordinance that prohibited Pittsburgh newspapers from publishing help-wanted advertisements in sex-designated columns was allowed to stand as contstitutional, even though the newspaper argued that the prohibition was a form of prior restraint (Pittsburgh Press v. Pittsburgh Commission on Human Relations, 1973) 7. State laws prohibiting media reports of crime victims names that are matters of public record are unconstitutional (Cox Broadcasting v. Cohn, 1975)

FOIA Exemptions

1. National security 2. Agency personnel rules and practices 3. Records covered by other federal laws 4. Trade secrets 5. Privileged government communication 6. Confidential personnel and medical files 7. Confidential law enforcement records 8. Records concerning regulation of financial institutions 9. Oil well information

Prior restraint of the media

1. Restrictive orders must be supported with evidence to show they are essential to a fair trial. No such proof was submitted in the Nebraska Press Association v. Stuart case. In fact, the details of the murder charges against Simants were widely circulated by individual citizens rather than the media in the sparsely populated county, suggesting that under the circumstances the gag order served no essential purpose. 2. Last drastic means should be employed whenever possible, such as changing the location of the trial, delaying the trial 'to allow public attention to subside' being particularly careful in jury selection, and starting especially clear and emphatic instructions to the jury. 3. Another alternative, supported by 'professional studies' is for 'trial courts in appropriate cases' to limit what the 'contending lawyers, the police, and witnesses may say to anyone' rather than restrict the media. (These proposed constraints on the sources of information have become known as 'secrecy orders' Since Nebraska Press Association they have been used in several cases.) 4. The restrictive orders in Nebraska Press Association violated a basic principle established in Sheppard v. Maxwell, 1966, namely that the press may not be constrained "from reporting events that transpire in the courtroom." Once the public hearing had been held, wrote Chief Justice Burger 'what transpired there could not be subject to prior restraint." 5. Finally the injunctions in this case were 'too vague and too broad to survive the scrutiny' of the Supreme Court.

Related issues of "Public Decency"

1. The "public nuisance" tactic (the police declare a bookstore, video store, or theater a "public nuisance" because of its inventory or showings, then use "nuisance abatement" laws to padlock the establishment's doors, declaring that they are ridding the community of a problem. 2. The licensing tactic. States and municipalities have the power to license entertainment establishments. But they can't use what could be a delay to try to get the shops not to open up. 3. The RICO tactic. (RICO== Racketeering Influenced and Corrupt Organizations Act) The Supreme Court rejected Ferris Alexander's argument in 1993 noting "The RICO forfeiture order wasn't a prior restaint on speech but a punishment for past criminal conduct." The Alexander decision adds to prior restraint law because it reinforces the "time-honored distinction between barring speech in the future and penalizing past speech." pg. 253

What are the three parts of the test that must be satisfied before a reporter could be compelled to testify?

1. The relevance test. The government must "show that there is probable cause to believe that the newsman has information which is clearly relevant to a specific probable violation of law." 2. The alternative means test. The government must "demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights." 3. The compelling interest test. The government must "demonstrate a compelling and overriding interest in the information."

Burstyn v. Wilson 1952 (again)

1952 (New York's attempt to prevent showing the film 'The Miracle' on grounds on irreverence). The Court ruled that it is "not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures

Mishkin v. New York (1966)

Concerning a conviction for selling obscene books dealing with abnormal sexual behavior, such as sadomasochism and fetishism). Mishkin argued that, as defined in Roth, his materials were not obscene because they did not appeal to the "average person" but to sex deviates (average people, Mishkin said, would find the books disgusting rather than prurient). The Court upheld Mishkin's conviction, changing the Roth test again by adding to the "average person" this phrase: "or its intended and probable recipient group."

9. Oil well information

Confidential information concerning "geological and geophysical information and data, including maps, concerning oil wells" is routinely filed by companies drilling for oil and gas. The exemption, which is rarely invoked, protects oil and gas companies from speculators and competitors who could use the documents to unfair advantage.

American Library Association v. United States

Congress passed the Children's Internet Protection Act (CIPA) in 2000, requiring public libraries to install internet filtering software on their computers in order to qualify for federal funding. The American Library Association and others challenged the law, claiming that it improperly required them to restrict the First Amendment rights of their patrons. As stipulated by the law, a three judge panel heard the case, and ruled unanimously that the CIPA violated the First Amendment. In a 6-3 judgment delivered by Chief Justice William H. Rehnquist, the Court held that, because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution and is a valid exercise of Congress's spending power. Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas joined the Chief Justice's opinion. Justices Anthony M. Kennedy and Stephen G. Breyer filed opinions concurring in the judgment. Both noted that CIPA imposed a comparatively small burden on library Internet users that was not disproportionate to any potential speech-related harm, especially in light of the libraries' ability to unblock sites. Justices John Paul Stevens and David H. Souter dissented. Justice Ruth Bader Ginsburg joined Justice Souter's dissent.

WikiLeaks

Edward Snowden 258-259 A former Central Intelligence Agency (CIA) employee and contractor for the United States government, he copied and leaked highly classified information from the National Security Agency (NSA) in 2013. His disclosures revealed numerous global surveillance programs, many run by the NSA and the Five Eyes Intelligence Alliance with the cooperation of telecommunication companies and European governments, and prompted a cultural discussion about national security and individual privacy. In 2013, Snowden was hired by an NSA contractor, Booz Allen Hamilton, after previous employment with Dell and the CIA.[1] Snowden says he gradually became disillusioned with the programs with which he was involved and that he tried to raise his ethical concerns through internal channels but was ignored. On May 20, 2013, Snowden flew to Hong Kong after leaving his job at an NSA facility in Hawaii, and in early June he revealed thousands of classified NSA documents to journalists Glenn Greenwald, Laura Poitras, and Ewen MacAskill. Snowden came to international attention after stories based on the material appeared in The Guardian and The Washington Post. Further disclosures were made by other publications including Der Spiegel and The New York Times.

Bright Line Rules

FCC said in 2015, broadband service providers are prohibited from blocking (broadband providers may not block access to legal content, applications, services, or non-harmful devices), throttling(broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices), and prioritizing for pay(broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind -- in other words, no "fast lanes." This rule also bans ISPs from prioritizing their affiliates' content and services).

Alexander v. United States (1993)

Ferris Alexander was the owner of a chain of stores and theaters in Minnesota that distributed sexually explicit media. He was charged with violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The federal District Court in Minnesota found him guilty of both charges. The court ordered him to forfeit his businesses, sentenced him to a six-year prison term, and fined him $100,000. Alexander appealed, claiming that the confiscation of his stores for his dealings in obscene material amounted to 'prior restraint' on his subsequent distribution of adult materials, and therefore violated his First Amendment rights. He also claimed that the seizure of his business violated his Eighth Amendment protection against excessive fines. The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment on the First Amendment claim, and declined to review the Eighth Amendment claim on the ground that no sentence less severe than life imprisonment without parole could justify an Eighth Amendment review. Chief Justice William Rehnquist wrote for a 5-4 majority that the application of RICO in Alexander's case was neither a 'prior restraint' on speech, nor a criminalization of speech typically protected under the Constitution. His sentence established no conditions on his behavior after its completion; once he paid the fine, surrendered his business and went to prison, he could theoretically distribute adult media without prejudice from the government. "To accept petitioner's argument," Rehnquist wrote, "would virtually obliterate the distinction [...] between prior restraints and subsequent punishments." In a separate and unanimous vote, the Court ruled that the forfeiture did in fact merit Eighth Amendment review. The case was returned to the Eighth Circuit for an analysis under the Excessive Fines Clause.

What does FOIA stand for?

Freedom of Information Act

United States v. Orito

George J. Orito shipped 83 reels of film by common carrier (the airlines) and was charged with violating federal law against the interstate transportation of obscenity

Barnes v. Glen Theatre (1991)

Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute. The Court was fractured and there was no majority opinion. Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality." The proscription on public nudity is unrelated to the erotic message the dancers seek to convey.

Schneider v. State, 1939

Government may not exercise prior restraint on public distribution of handbills and leafletsas a means of keeping the streets clear of litter (Schneider v. State, 1939)

Mills v. Alabama, 1966

Government may not prohibit publication of election-day editorials, not even in the name of fair and orderly elections (Mills v. Alabama, 1966)

Lovell v. Griffin, 1938

Government may not use broadly drawn permit systems to prohibit distribution of all handbills, leaflets, and so fourth; ordinances prohibiting the distribution of all kinds of literature at all times and places and by any manner are invalid for overbreadth (Lovell v. Griffin, 1938)

Zurcher v. Stanford Daily (1978)

In 1971, officers of the Palo Alto, California, Police Department obtained a warrant to search the main office of The Stanford Daily, the student newspaper at the university. It was believed that The Stanford Daily had pictures of a violent clash between a group of protesters and the police; the pictures were needed to identify the assailants. The officers searched The Daily's photographic laboratories, filing cabinets, desks, and waste paper baskets, but no materials were removed from the office. This case was decided together with Bergna v. Stanford Daily, involving the district attorney and a deputy district attorney who participated in the obtaining of the search warrant. In a 5-to-3 decision, the Court held that the "third party" search of the newsroom did not violate the Fourth Amendment. The Court held that such searches, accompanied by warrants, were legitimate when it had been "satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises." The Court also found that the Framers of the Constitution "did not forbid warrants where the press was involved."

STATE OF TENNESSEE V. SCOPES

In March 1925, the Tennessee state legislature passed a bill that banned the teaching of evolution in all educational institutions throughout the state. John Scopes, a young popular high school science teacher, agreed to stand as defendant in a test case to challenge the law. He was arrested on May 7, 1925, and charged with teaching the theory of evolution. They sought to demonstrate that the Tennessee law was unconstitutional because it made the Bible, a religious document, the standard of truth in a public institution. The trial lasted only eight days with the jury returning a verdict of guilty in less than nine minutes. The ACLU hoped to use the opportunity as a chance to take the issue all the way to the Supreme Court, but the verdict was reversed by state supreme court on a technicality. Nonetheless, the ultimate result of the trial was pronounced and far-reaching: the Butler Act was never again enforced and over the next two years, laws prohibiting the teaching of evolution were defeated in 22 states.

Irreverence (blasphemy or sacrilege)

Irreverent expression reviles or curses the Deity or makes fun of religion. Over the years, various critics have described films such as Monty Python's 'Life of Brian', 'The Last Temptation of Christ', 'Dogma', and 'The Da Vinci Code' as blasphemous because they believed the films mocked or violated the sacredness of religion.

The Religio-Moral Hersey of Darwinism

Just rant about the Scopes trial pg. 143 Arkansas' 1928 anti-evolution law did not meet a court challenge until the mid-1960s when Susan Epperson, a biology teacher in Little Rock Arkansas public schools was provided with a text that included a chapter setting forth the theory that humans evolved from a 'lower form of animal' Epperson lost in Arkansas Supreme court but the US Supreme Court ruled the law was unconstitutional

Kitzmiller v. Dover Area School District

Kitzmiller and 10 other families filed a lawsuit; a lawsuit in federal court claiming the Dover school board was violating their constitutional rights by introducing religion into science class The judge held intelligent design was not a scientific theory, but a variation on creationism. Consequently, adding intelligent design to the school's curriculum was unconstitutional, as it would require teaching a religious doctrine in violation of the Establishment Clause.

Erie v. Pap's A.M. (2000)

Landmark decision by the Supreme Court of the United States regarding nude dancing as free speech. The court held that an ordinance banning public nudity did not violate the operator of a totally nude entertainment establishment's constitutional right to free speech.

Two level theory of freedom of speech

Level one- worthwhile speech This category consists of expression that has social value as a step to truth, thereby deserving First Amendment protection (such as news reports, editorials and opinion columns, speeches on social issues, political debates, and so on, that help "make the voters wise" Level two- worthless speech This category consists of expression that -- according to the judges -- has little, if any, social value as a step to the truth; therefore, it does not deserve First Amendment protection (the judges assert it is not "speech" in the sense that the Constitution uses the term INCLUDES 1. Offensive language, even if it does not provoke a fight ('The Court has discarded this part.) 2. Fight-provoking language that tends to incite violence (The Court has retained this part.)

Roth v. United States

Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).

Reno v. ACLU (CDA)

Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues. Justice Sandra Day O'Connor authored an opinion concurring in the judgment in part and dissenting in part, joined by Chief Justice William Rehnquist. Justice O'Connor would invalidate the provisions only to the extent that they fail to adhere to the Court's principle that zoning restrictions may be valid if they do not unduly limit adult access to the material.

Sensual and erotic (obscene or pornographic)

Sexual communications expressed in a warm, "sexy" way, employing erotic language or pictorial representations or both, are the focus of this form of religio-moral heresy. Examples include: -love scenes in literature -photographs of nudes -sexually explicit paintings, films, and videotapes.

6. Confidential personnel and medical files

Some materials are exempt because their disclosure "would constitute a clearly unwarranted invasion of personal privacy." These include records that reveal private information about government employees, such as marital status, medical problems, alcohol use, or religious practice.

3. Records covered by other federal laws

Some records are exempt from disclosure by other federal laws. An agency recieving a request under the FOIA must specify the law that applies and show that it covers the requested material.

Cox Broadcasting v. Cohn, 1975

State laws prohibiting media reports of crime victims names that are matters of public record are unconstitutional (Cox Broadcasting v. Cohn, 1975)

Obscenity

The continuing saga of the Court's effort to explain its position on the religio-moral heresy of obscenity can be summarized according to three topics -Origins of obscenity law (Rosen through Roth) -Contemporary obscenity law (Miller to the present) -The regulation of nonobscene erotic speech

Epperson v. Arkansas (1968)

The Arkansas legislature passed a law prohibiting teachers in public or state-supported schools from teaching, or using textbooks that teach, human evolution. Epperson, a public school teacher, sued, claiming the law violated her First Amendment right to free speech as well as the Establishment Clause. The State Chancery Court ruled that it violated her free speech rights; the State Supreme Court reversed. Seven members of the Court held that the statute violated the Establishment clause. Writing for the Court, Justice Abe Fortas stated that the law had been based solely on the beliefs of fundamentalist Christians, who felt that evolutionary theories directly contradicted the biblical account of Creation. This use of state power to prohibit the teaching of material objectionable to a particular sect ammounted to an unconstitutional Establishment of religion. Justice Fortas wrote, "The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." The two other members of the Court concurred in the result, writing that it violated either the Due Process clause of the 14th Amendment (because it was unconstitutionally vague) or the Free Speech clause of the First Amendment. (A biology teacher's challenge to an Arkansas law making it illegal to teach the theory of evolution in the public schools). The Court ruled that the Arkansas "monkey law" was an attempt "to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the ... Constitution."

Ashcroft v. Free Speech Coalition (2002)

The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." The Free Speech Coalition, an adult-entertainment trade association, and others filed suit, alleging that the "appears to be" and "conveys the impression" provisions are overbroad and vague and, thus, restrain works otherwise protected by the First Amendment. Reversing the District Court, the Court of Appeals held the CPPA invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under Miller v. California, 413 U.S. 15, nor produced by the exploitation of real children as in New York v. Ferber, 458 U.S. 747. Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the two prohibitions described above are overbroad and unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Moreover, the Court found the CPPA to have no support in Ferber since the CPPA prohibits speech that records no crime and creates no victims by its production. Provisions of the CPPA cover "materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment" and abridge "the freedom to engage in a substantial amount of lawful speech," wrote Justice Kennedy.

Terminello v. Chicago (1949)

The Court ruled that a conviction based on an overboard interpretation of a disorderly conduct law could not be sustained because the expansive interpretation reached protected speech. (Terminiello had inflamed his listeners and thus helped fuel a dangerous situation, but his conviction was reversed because the trial judges' instructions to the jury were overly broad.)

Feiner v. New York (1951)

The Court ruled that speech that exceeds the "bounds of argument or persuasion" and creates a clear and present danger of inciting to riot is not protected by the Constitution. (Feiner, who made a speech on a public street, had refused to cooperate with police who asked him to stop speaking as a means of persevering the peace. The Supreme Court sustained his conviction.)

Burstyn v. Wilson 1952

The Italian film 'The Miracle', concerning a simpleminded peasant woman who believes her illegitimate child was fathered by St. Joseph and that the child is a miraculous gift from God, was licensed by the New York censors in 1950, but the license was later revoked because of charges that the film was "sacrilegious." the New York courts upheld the revocation, but the US Supreme Court unanimously reverse. While permitting New York's system of film licensing to remain in operation, the court ruled that under the Constitution, states could not censor a communication simply on the ground of it being irreligious ("blasphemous" or "sacrilegious"). Rule Established: 1. Makes clear that blasphemy is not a constitutional basis for suppressing ideas in the US. 2. It explicitly reverses the 1915 decision in 'Mutual Film v. Ohio Industrial Commission (which declared that film did not merit First Amendment protection) and announced that "liberty of expression by means of motion pictures is guaranteed " by the Constitution. This was the first time the Supreme Court held that movies are protected as speech under the First Amendment.

Near v. Minnesota (1931)

The Supreme Court decision holding that the First Amendment protects newspapers from prior restraint. Fall of 1927 Minnesota scandal-sheet publisher (Near) made anti-Semitic remarks in several issues of 'The Saturday Press', including charges that numerous Jewish gangsters controlled gambling, bootlegging, and racketeering in Minneapolis and that local police officials (whom he named) were cooperating with the "gangsters" and receiving "graft"

Paris Adult Theatre I v. Slaton

The Supreme Court of Georgia held that two commercial films shown only to adults were obscene "hard-core pornography," even though the sex acts were simulated

Chandler v. Florida (1981)

Two Miami Beach police officers were charged with burglarizing a local restaurant. Their trial gained much media attention. Local television stations televised a small portion of the trial, thanks to a recent Florida Supreme Court decision which permitted (with certain restrictions) electronic media to record judicial proceedings. Officers Chandler and Granger objected to the coverage and were found guilty as charged. The Court found no constitutional violation in this case. Chief Justice Burger first denied Chandler's and Granger's claim that the Court's holding in Estes v. Texas (1964) regarded television cameras in the courtroom as offensive to due process. State experimentation with "evolving technology" in the courtroom, as long as it does not infringe on "fundamental guarantees" of the accused, is consistent with the Constitution. Furthermore, Florida's policy was implemented with strict guidelines intended to protect the right of a defendant to a fair trial. For example, the state required its courts to protect certain witnesses from the "glare of publicity" and to hear and consider arguments from a defendant who feels that electronic coverage may bias the jury.

The Sunshine Act

adopted in 1977, this act requires that most government meetings be conducted in public and that notice of such meetings must be posted advance