COMM250 Test 2
How is hate speech defined?
Hate speech is generally defined as speech that expresses hatred or prejudice against a particular group or individual based on their race, ethnicity, religion, gender, sexual orientation, nationality, or other similar characteristics.
Should it be protected by the First Amendment?
Hate speech is generally protected by the First Amendment's guarantee of free speech, unless it is likely to incite imminent violence or is a direct threat to an individual or group.
Where is actual malice (high or low) on the fault continuum?
High.
What is the distinction?
The "reasonable person" is a legal fiction that embodies an ideal of reasonableness and rationality. The average person is not held to a standard of reasonableness or prudence, but rather reflects what is generally considered acceptable or unacceptable behavior in a given community or society.
What did the Court say about extending its ruling in Stanley v. Georgia to adult movie theatres Paris Adult Theatre I. v. Slaton?
The U.S. Supreme Court declined to extend the principles established in Stanley v. Georgia to the regulation of adult movie theaters.
How did the Gertz case change libel law?
- Private individuals now receive more protection than do public persons and do not have to prove "actual malice" - Requires each state to establish a minimum degree of fault—negligence—for actions against media defendants and limits juries from awarding damages beyond compensatory damages...unless "actual malice" is proven - Each state is different in definition of "negligence", "actual damages", etc.; therefore differences exist how these terms are defined and applied In Gertz v. Robert Welch, Inc. (1974), the Supreme Court ruled that the First Amendment does not require a private individual who is publicly libeled to meet the burden of proof articulated in New York Times Co. Attorney Gertz is the subject of a vicious article that falsely claims he has a criminal record and had planned the frame up of a police officer and was a communist fronter This caused each state to establish a minimum degree of fault-negligence- for actions against media defendants and limits juries awarding damages beyond compensatory damages, unless actual malice is proven.
What is a motion for summary judgement?
A request made by a party in a lawsuit to have the court decide the case in their favor without going to trial. It is a pre-trial motion that is filed after discovery (the process of gathering evidence) has taken place
On what basis does the Hicklin rule allow a work to be declared obscene?
Allowed conviction based on the group most likely to be damaged if such publications should fall into their hands: cretins, children and women
What does overbroad mean?
An overbroad law is one that is written so broadly that it prohibits or restricts activities that are constitutionally protected, and it may be considered unconstitutional for regulating more speech or conduct than is necessary to achieve its intended purpose.
Why is the distinction important?
For private figures, actual malice is not required for recovery of compensatory damages, but is the standard for punitive damages. Private individuals have less access to media and the marketplace of ideas to defend themselves and have not sought publicity. Compensatory damages are intended to help the injured victim, while punitive damages are meant to penalize the at-fault party. Additionally, compensatory damages are much more common than punitive damages.
What does the Gertz decision say about how to separate a public figure from a private individual?
Gertz was an attorney and "known" to the public but WAS NOT a public figure. When he took the case, he was just doing his job, not injecting himself into the limelight. If he WAS a public figure, Gertz would have had to prove ACTUAL malice. No plaintiff suing the media can collect punitive damages without showing actual malice regardless if they are a public official, public figure or private individual.
What was the impact of the British case, Reginia v. Hicklin (1868) on American obscenity laws?
The regina V. Hicklin case established obscenity laws which the court held that obscene material is marked by a tendency "to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." Obscene pictures of Priest and woman in confession Mentally challenged, children and women may have been affected. Before the miller test.
What is the rule about public officials established in the case? What reasons did the Court give for why the rule was needed?
The rule established by the Supreme Court in the landmark 1964 case New York Times Co. v. Sullivan is that public officials must prove "actual malice" to recover damages in a defamation suit. This means that if a public official wants to sue for defamation, they must show that the defendant made the false statement with knowledge that it was false or with reckless disregard for whether it was false or not. Reasons why the rule was needed: Public officials have a reduced expectation of privacy with regard to their official conduct, as they have voluntarily thrust themselves into the public eye and must therefore expect and tolerate greater scrutiny. The First Amendment's protection of free speech and press requires "breathing space" for the discussion of public issues, and that "erroneous statement is inevitable in free debate, and...must be protected if the freedoms of expression are to have the 'breathing space' that they need." The potential for self-censorship and the chilling effect on speech that could result from allowing public officials to use defamation law to suppress or punish criticism of their official actions could have a detrimental effect on the robust public debate necessary for a healthy democracy. The actual malice standard provides a safeguard against the risk of punishing truthful speech, which could occur if the law allowed for public officials to bring defamation claims based on minor inaccuracies or honest mistakes.
Jenkins V. Georgia
Theater manager is convicted for obscenity after playing film "carnal knowledge" which explored social concepts of sexuality. Court rules in favor of the manager as "mere nudity" is not obscene.
Virginia V. Black
Three men burn a cross. They are convicted for "intent to intimidate". Court upholds the decision stating that intimidation is a form of true threat.
What principle did the Court establish in Jenkins v. Georgia (the Carnal Knowledge case)?
U.S. Supreme Court established the principle that the First Amendment protects "serious literary, artistic, political, or scientific value" in works that may otherwise be considered obscene or indecent.
What did the Court decide in Herbert v. Lando and why is it important to the concept of actual malice?
the Supreme Court held that a journalist's state of mind, including their thought processes, may be discoverable in cases where the plaintiff has made a sufficient showing of actual malice. It is important because the Court noted that the discovery of subjective evidence may be necessary to determine whether the defendant acted with reckless disregard for the truth, as required under the actual malice standard.
What is a chilling effect?
the deterrent effect that the threat of legal action or government censorship can have on free speech and expression. It refers to the idea that people may self-censor their speech or expression out of fear of potential legal or social consequences, even if their speech would otherwise be protected by the First Amendment. The chilling effect can arise from a variety of sources, such as defamation lawsuits, government censorship or regulation of speech, or social pressure from powerful institutions or individuals. It can have a particularly strong impact on the press and media, who may be hesitant to report on sensitive or controversial issues for fear of legal action or social backlash.
Who won the 2-Live Crew case? Why?
2 Live Crew won the case, as the Supreme Court ruled in their favor, finding that their parody of "Oh, Pretty Woman" constituted fair use under copyright law. The Court held that the use of the original song in the parody was transformative, as it used the original work for a different purpose and created a new meaning. The Court also held that the parody did not harm the market for the original song, as it was not a substitute for the original work.
What is the opinion defense?
A legal defense to a defamation claim that is based on the principle that expressions of opinion are protected by the First Amendment to the United States Constitution and are not actionable as defamation. To successfully assert the opinion defense, the defendant must show that the statement was an expression of their opinion rather than a statement of fact. This defense typically arises in cases where the allegedly defamatory statement is a critical comment on a matter of public interest, such as politics or entertainment, where opinions are commonly expressed. However, courts will consider various factors, including the context and nature of the statement and the speaker's credibility, in determining whether a statement is an opinion or a statement of fact.
What is libel per se?
A legal term used to describe statements that are considered defamatory on their face, without the need for additional evidence or explanation. In other words, the statement itself is so damaging that it is presumed to cause harm to the reputation of the person or entity being targeted - Allegations of criminal conduct -Allegations of serious sexual misconduct -Allegations of professional misconduct or incompetence -Allegations of a serious, contagious, or loathsome disease
What must a person suing for libel (the plaintiff) show before a case can go to trial (there are 5 things that make up an "actionable libel")?
A person must show publication of information, the person being defamed was identified by the statement, how the remarks had a negative impact on the persons reputation and the published information is false.
In what ways is the current test different from the earlier Roth-Memoirs test used between 1965 and 1973?
A test for obscenity derived from Roth that included the following five-part structure: (1) the perspective of evaluation was that of an ordinary, reasonable person, (2) community standards of acceptability were to be used to measure obscenity, (3) works whose predominant theme was questionable were the only target of obscenity law, (4) a work, in order to be evaluated for obscenity, had to be taken in its entirety, and (5) an obscene work was one that aimed to excited individuals' prurient interest. Miller revised Roth's emphasis on creating a uniform Federal standard. Instead, it touted reliance on community standards of a more local nature, which threw the arduous task of defining obscenity back upon the States. The target for Roth was the average person, applying contemporary community standards. Eventually, the community standards became national rather than local. An important component of the new test was that the material, taken as a whole, must be considered obscene.
What are the absolute and qualified defenses to libel?
Absolute defenses to libel are defenses that, if proven, completely bar the plaintiff from recovering damages. They include: Truth: The defendant can prove that the statement in question is true. If the statement is true, it cannot be considered defamatory. Absolute privilege: Certain situations, such as statements made in court, are absolutely privileged, which means that the person making the statement is immune from liability for defamation. Qualified defenses to libel are defenses that may reduce the defendant's liability or limit the damages that the plaintiff can recover. They include: Fair comment/opinion: The defendant can argue that the statement is an opinion or a fair comment on a matter of public interest, and therefore not defamatory. Consent: The plaintiff consented to the publication of the statement. Innocent dissemination: The defendant did not know or have reason to know that the statement was defamatory and was merely acting as a distributor or conduit of the statement. Retraction: The defendant published a retraction or correction of the statement.
What is an all-purpose public figure?
All purpose public figures have achieved general fame in the community or are heavily involved in society's affairs. Bill gates, Paris Hilton, Michelle Obama
What are some arguments against extending the First amendment protection to hate speech?
Arguments against protecting hate speech center on the harm it can cause and the need to protect vulnerable groups, as well as concerns about the normalization of hate speech in society. Arguments against extending First Amendment protection to hate speech: Hate speech can cause harm and create a hostile environment, especially for marginalized or vulnerable groups. It can contribute to discrimination, harassment, and violence. Speech that is intended to incite violence or cause immediate harm is not protected by the First Amendment, and hate speech can fall into this category. Therefore, it is appropriate to restrict this type of speech to protect public safety. Hate speech can also have a chilling effect on free speech for members of marginalized groups who may feel intimidated or silenced by the speech of others. Protecting hate speech can legitimize and normalize harmful attitudes and behaviors, and can create a culture that tolerates discrimination and hate.
What are some of the arguments for extending First Amendment protection to hate speech?
Arguments for extending First Amendment protection to hate speech center on the importance of protecting free speech and the potential dangers of government regulation of speech. Arguments for extending First Amendment protection to hate speech: Protecting free speech promotes a robust marketplace of ideas where all perspectives can be heard and debated, which is essential to a healthy democracy. The government should not be in the business of regulating speech, especially when it comes to controversial or unpopular ideas. Restrictions on speech can be used to suppress dissenting voices and limit individual liberty. Limiting hate speech could lead to a slippery slope where any speech deemed offensive or controversial is restricted. This could stifle important conversations and limit progress on important issues. The definition of hate speech is often subjective and difficult to define, and the government should not be in the business of determining what speech is acceptable or not.
Is libel law a civil or criminal legal action?
Civil
What standard must actual malice be proved by?
Clear and Convincing evidence
Has the argument for regulating obscene material because it violates women's civil rights been successful in the courts?
Court of Appeals for the Seventh Circuit struck down a regulation that sought to prohibit pornography that degraded or demeaned women. The court held that the regulation was overly broad and violated the First Amendment Mixed success in the courts and continues to be debated
Butts and Walker
Extended the actual malice rule to public figures.
What did I say in the lecture about quotations (Malcom case)?
Journalists can change wording but cannot change the meaning of the statement.
Is it a decision for the judge or jury in most states?
Judge.
Gertz V. Welch
Lawyer defends a family and is slandered on the news. He sues and wins as a private citizen. Private individuals receive more protection.
Stanley V. Georgia
Man is convicted of obscenity for owning pornographic material in his home. Court rules in favor of the man stating that an adults possession of porn in the privacy of their own home is not obscene.
What case does it come from?
Miller v. California In 1971, Marvin Miller, an owner/operator of a California mail-order business specializing in pornographic films and books, sent out a brochure advertising books and a film that graphically depicted sexual activity between men and women. The brochure used in the mailing contained graphic images from the books and the film. Five of the brochures were mailed to a restaurant in Newport Beach, California. The owner and his mother opened the envelope and seeing the brochures, called the police.[3] Miller was arrested and charged with violating California Penal Code 311.2(a) which says in part, "Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor.
Can you libel the dead?
No.
Does the Stanley decision apply to possession of child pornography in the home?
No.
Is it beyond a reasonable doubt?
No.
Is there a federal libel law?
No.
Regina V. Hicklin
Obscenity can be judged off an isolated passage of a work, the whole work is not needed. Obscenity also judged off how it affects the most vulnerable.
Miller V. California
Porn business convicted of violating obscenity laws for mailing advertisements. Court rules against the business and creates a statute which obscenity must be based off.
Paris Adult Theatre I v. Slaton
Porn cannot be played in a movie theater.
Times V. Sullivan
Public official claims that news paper libeled him through ad. News wins Public officials must prove actual malice to win anything in a libel case.
Is the serious value determination in the Miller test (aka SLAPS) made on the basis of an average person or a reasonable person?
Reasonable person.
Herbert V. Lando
Retired war vet sues CBS news for defamation with actual malice. They refuse to allow an inquiry into their sources, but then are forced to reveal what they knew. It is within ones rights to investigate the sources that prove actual malice.
What is an involuntary public figure?
Someone to become a public figure through no purposeful action of his or her own but that these involuntary public figures but be exceedingly rare.
How well have schools speech codes done in the courts?
Speech codes that are too broad and vague, or that restrict protected speech, have been struck down by the courts as unconstitutional.
What happened in the 1964 case Time v. Sullivan and why is it considered a landmark?
The 1964 case New York Times Co. v. Sullivan was a landmark Supreme Court case that established important First Amendment protections for the press in defamation cases involving public figures or officials. The case involved a full-page advertisement in the New York Times that criticized the treatment of civil rights protesters in the South. The ad included some minor factual errors, and Montgomery, Alabama Commissioner of Public Affairs L.B. Sullivan sued the New York Times for defamation, claiming that the ad included false statements about his role in suppressing the civil rights movement. At trial, the jury found in favor of Sullivan and awarded him $500,000 in damages. However, the Supreme Court ultimately overturned the verdict, holding that the First Amendment's protection of the freedom of the press required a higher standard of proof in defamation cases involving public officials. Specifically, the Court held that public officials must prove "actual malice" to recover damages in a defamation suit. The decision in New York Times Co. v. Sullivan was considered a landmark because it established important First Amendment protections for the press, and helped ensure that the media would not be silenced by the threat of defamation suits from powerful individuals or institutions. The actual malice standard has since been extended to cover not only public officials, but also public figures and other individuals who are involved in matters of public concern.
What impact did the Butts and Walker cases have on which plaintiffs to prove actual malice?
The Butts and Walker cases had an important impact on the definition of actual malice and the burden of proof required for public figures to prove defamation. In these cases, the Supreme Court clarified that public figures must show that the defendant made the false statement with knowledge that it was false or with reckless disregard for whether it was false or not.
What did the Court say in Virginia v. Black (2003) about burning crosses?
The Court held in Virginia v. Black (2003) that cross-burning with the intent to intimidate is not protected speech, but a state cannot ban cross-burning simply because it expresses an offensive idea or is used as a symbol of group solidarity. The decision clarified the scope of First Amendment protection for cross-burning, and established that the intent behind the conduct is critical in determining its constitutionality.
What did the Court say about prosecution for obscenity based on materials found in a person's home in Stanley v. Georgia?
The Court's decision in Stanley v. Georgia was a significant expansion of First Amendment protections for individuals, particularly in the area of obscenity law. The ruling established that the government cannot criminalize the possession of obscene materials in an individual's own home, even if the distribution or sale of such materials is illegal.
In most states, who decides if the plaintiff is a public official, public figure or private individual?
The Judge.
What did the Court say was the most important thing to look at in deciding if a statement was one of fact or one of opinion (Milkovitch case).
The Milkovich case clarified that the determination of whether a statement is a statement of fact or a statement of opinion depends on the overall context in which the statement was made, and that a statement labeled as opinion may still be actionable if it implies a false assertion of fact.
Know the Supreme Court's current test for determining whether a work is obscene. (Not just the case it comes from, but the test itself.)
The Miller test. Miller v. California. Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions[4] specifically defined by applicable state law, Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
What does the Gertz opinion say about punitive damages when suing media organizations?
The Supreme Court held that punitive damages cannot be awarded in defamation suits brought by private individuals against media organizations unless there is clear and convincing evidence of actual malice.
Why was the Virginia law found overbroad?
The Virginia cross-burning law was found overbroad because it failed to require a specific and meaningful showing of intent to intimidate, which could potentially chill protected speech and have a disproportionate impact on certain groups.
Actual malice definition
The defendant made a false statement with knowledge that it was false or with reckless disregard for whether it was false or not.
How is qualified privilege to report on an official government meeting or record defeated by a defendant?
To defeat a qualified privilege defense in the context of reporting on an official government meeting or record, the plaintiff would need to show that the defendant either knew that the statement was false or had serious doubts about its truthfulness, and published the statement anyway. Additionally, the plaintiff may be able to show that the defendant acted with malice by demonstrating that the defendant had a personal vendetta against the plaintiff, or by showing that the defendant published the statement with the intention of harming the plaintiff's reputation.
Do government prosecutors need to present evidence that a work lacks serious value in order to secure an obscenity conviction?
Yes, in order to secure an obscenity conviction, government prosecutors must prove beyond a reasonable doubt that a work is both obscene and lacks serious value. This standard was established in the landmark Supreme Court case Miller v. California (1973), which set forth a three-pronged test for obscenity.
Can government entities like cities and municipalities use zoning laws to restrict where adult-based businesses can operate?
Yes. Local governments can regulate the location of adult businesses without prohibiting them altogether, as long as the regulations are based on factors such as the proximity to schools, parks, or residential areas, and not on the content of the businesses themselves
What is a "prurient" interest in sex?
a shameful, unhealthy and morbid interest in nudity, sex or excretion.