Free Speech #1

"In Abrams v. United States, the Supreme Court rigorously applied the ""clear-and-present-danger"" test, concluding that the defendants' conviction was unconstitutional and that the speech at issue posed no threat to either the government or the national war effort."

False

A person must be named by name to be identified for purposes of a libel lawsuit.

False

As an "average person" might view Watts' speech as threatening, the Supreme Court upheld Watt's conviction for making an explicit threat to shoot President Johnson.

False

Because there was no evidence that the American Coalition of Life Activists actually planned to harm abortion providers, the appellate court (en banc decision in Planned Parenthood v. American Coalition of Life Activists) held that the web site did not constitute a true threat.

False

In Brandenburg v. Ohio, the Supreme Court held Clarence Brandenburg's racists diatribe was unprotected speech as it posed a "clear and present danger" to public safety.

False

In Branzburg v. Hayes, the Supreme Court held that journalists can invoke a constitutional privilege to avoid identifying confidential sources.

False

Rather than seeking to punish the individuals who leaked the documents, the Obama Administration sought to prevent their publication on sites like Wikileaks and also on more mainstream media outlets like the Washington Post.

False

The Court determined in Monitor Patriot v. Roy that candidates who have not yet attained elective office will be treated like private citizens and not public officials, because they have not yet been elected and still deserve privacy.

False

The Court has created new standards for defamation in cyberspace because it is a different medium than print journalism.

False

The Supreme Court's landmark decision in New York Times v. Sullivan had the most dramatic effect on which of the following elements of a libel lawsuit?

Fault

Routes to the Supreme Court

Federal Courts, State Courts, Special Federal Courts or disputes between States

1689 English Bill of Rights

Grants people in legistalture freedom of speech *context in which colonies arrive

Marketplace of Ideas

Idea that truth will emerge from the abundance of many ideas. Allowing public discourse to surround these ideas will lead to truth.

Defamation

Any communication, spoken or published, that tends to lower a person's reputation before others, cause that person to be shunned, or expose that person to hatred, contempt, or ridicule

Free Speech in Ancient Democracies

Athens, Greece- if you could be taught rhetorical things, you can participate in society, limited to wealthy people and lost in transition to empire

Kant (Moral Autonomy, Categorical Imperative)

Categorical Imperative: Obligation or duty that motivates or requires action. This includes 'perfect duty' (applies all the time, required to be a human being, will be blamed if not completed) and 'imperfect duty' (still morally binding, but varies from person to person. You will not be blamed if you do not complete them). This imperative applies to all humans- it is rules based on reason. Moral autonomy: decide for oneself your moral code. Maxim: the rule or principle on which you act

Whitney v. California (1927) (advocacy v. incitement, Brandeis concurrence)

Charollete Whitney convicted for helping establish Communist Labor Party, but voted against takeover of governement in Chicago, but convicted because of her membership to this party Brandeis' concurrence- if she had argued, they may have changed their mind, remedy for bad speech= more speech, not shutting it down, but allowing more of it

Civil v. Criminal Law

Civil: one citizen sues another for monetary damages. This includes "tort" or a "civil wrong" (medical malpractice, traffic accidents, etc). Criminal libel: this has decreased but it includes degrading sexual content, Sedition (attacking gov't)

Brandenburg v. Ohio (1969)

Clarence Brandenburg spoke @ KKK rally convicted under an Ohio criminal syndacism that banned use of violence to advocate, overturned because law was unconstitutional Incitment Standard is established- historical context matters imminent lawless action

In which of the following cases did the government successfully prosecute the leadership of the Communist Party of the United States?

Dennis v. United States

Which of the following defendants had his conviction overturned by the Supreme Court?

Dirk DeJonge

Dennis v. U.S. (1951)

Eugene Dennis= head of communist party, he and 10 others idicted in NY - convicted for quoting Karl Marx... today the decision would be a no brainer stepbackward from clear and present danger

Bad Tendency

In U.S. law, the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity.

While Congress has yet to adopt a federal shield law, a majority of state legislatures and courts have provided qualified privileges that protect a journalist from being compelled to testify.

True

While judges apply the three-part test laid out in Branzburg v. Hayes when compelling reporters to testify concerning confidential information, there have been cases when reporters have been ordered to testify.

True

Relevance

a test to show that there is probable casue that the newsman has info that could violate the law

Alternative Means

a test to show the only way one can obtain the info is through divulging the source

Prior Restrant

ability of government to stop the press

Concurrence

agreement/decsiion written for other reasons, supplimentary decision written, "I agree, but here's why"

Edward Snowden

an ex NSA contractor who leaked info about some of the most secret surveillance operations undertaken by the US and Britain, as well as classified legal memos and court orders underpinning the programs in the US

Emma Goldman

arrested under the Espionage Acts, "one of the most dangerous individuals in America"

Section 3 and the Sedition Act of 1918

punished speech that had intent to - interfere with militart, promote enemies' success, attempt to cause disloyalty, interfere with draft

The Smith Act

punishes attempt to create disloyalty of military- comes out during Dennis. v. United States

Governement Interest

the governement mus demonstrate the info is important and useful - Justice Potter Stewart's dissent

14th Amendment

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" due process clause, born or naturalized, extended 1st Amendment to the states

The First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Libel Per Se and Libel Per Quod

"Libel per se" is speech that is defamatory at face value, while "libel per quod" requires additional information to create the libel.

Paladin Enterprises v. Rice (4th Cir. 1997)

"hitman case" - a book teaching ways to be a hitman, a man used the book as a step by step aiding and abetting

True Threats

"serious expression of intent to harm or assault"

Clear and Present Danger

"shouting in a crowded theatre"- context matters, there must be a clear and present danger, military history perspective civic liberties are uniquely vulenrable during times of national crises of war communication perspective if people hear it, they'll do it

Industrialization and Urban Growth

1. unprecedented immigration and urban growth 2. increased reform in economic/labor 3. rise of unions 4. rise of 3rd party politics- industrial workers of the world and free speech fights

Plaintiff's Burdens in Defamation Case (Publication, Identification, Defamation, Fault)

4 Burdens- publication- must be communicated to a third party identification- by name, interference and group defamation- damage to the esteem or social standing in which one is held, damage through accusing someone of criminality, damage through words imputing disease or mental illness, damaging one in his/her occupation, trade or profession, damage to a corporation's integrity, credit, or ability to carry on business fault- established in NY Times v. Sullivan

Summary Judgement

A decision by a judge made on the basis of statements and evidence presented for the record prior to a trial. Summary judgement is granted when there is no dispute as to the facts and one party entitled to judgement as a matter of law.

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, Branzburg refused to testify and potentially disclose the identities of his confidential sources the dissent of this case provides us with the Qualified Privelage which is a 3 part test which includes what the government must do

Alien and Sedition Acts of 1798

Americans wanted French Immigrants out, included 4 acts- Naturalization, Alien Friends, Alien Enemies, and the Sedition Acts

Near v. Minnesota (1931)

Jay Near (wasn't liked) published a controversial newspaper= The Saturday Press Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law- gag law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined decision: gag law = unconstitutional Chief Justice Hughes caveats caveat #1= no prior restraint caveat #2- post facto

Assasination of President McKinley

Leon Czolgosz who assasinated President McKinley said he was inspired by Emma Goldman's words

Cox Broadcasting v. Cohn (1975)

Martin Cohn was the father of a seventeen-year old girl who was raped and killed in Georgia. After obtaining information from the public record, a television station broadcasted the name of Cohn's daughter in connection with the incident. This violated a Georgia privacy statute which prevented members of the media from publicizing the names or identities of rape victims. The court held that the Georgia law was unconstitutional, and they should not be able to restrict the press in this situation

Which of the following cases held that candidates who have not yet attained elective office will be treated like public officials because the public has a legitimate interest in candidates' fitness for office?

Monitor Patriot v. Roy

Debs v. U.S. (1919)

On June 16, 1918, Eugene V. Debs, a leader of the Socialist Party of America, gave a speech in Canton, Ohio protesting involvement in World War I. During the speech, he discussed the rise of socialism and specifically praised individuals who had refused to serve in the military and obstructed military recruiting. For his speech, Debs was arrested and charged with violating the Espionage Act.

New York Times v. U.S. (1971)

Pentagon Papers Daniel Ellsberg leaked info to NY Times- governement tried to stop this via prior restraint Pentagon Papers Decision- supreme court decided governement can't call prior restraint- prior restraint= unjustified!! important because government was unsuccesful in silencing press

The Bolsheviks

Revolution in Russia- Lenin leads workers in revolt, Russia was devastated by war, transformed into Communism.

Schenck v. U.S. (1919)

Schenck was general secretary of Socialist Party who attempted to mail 15,00 leaflets to drafted men suggesting draft=slavery, convicted under Espionage Act for consipriring to cause insoburdination... conviction upheld, but Oliver Wendell Holmes dissent = clear and present danger from "shouting in a crowded theatre" metaphor... context matters!

Slander v. Libel

Slander= a type of defamation. Slander traditionally referred to spoken defamation, whereas libel referred to printed defamation. Because a defamatory statement made over the broadcast media reaches a large audience, it is treated as libel.

Selective Service Act of 1917

The Selective Service Act or Selective Draft Act authorized the federal government to raise a national army for the American entry into World War I through the compulsory enlistment of people.

Actual Malice (specific definition)

The actual-malice standard requires a public figure in a defamation suit to prove the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not."

"Libel per se" is speech that is defamatory at face value, while "libel per quod" requires additional information to create the libel.

True

A federal appellate court held that an author who was also a New York Times reporter could be compelled to testify in a criminal case against Jeffrey Sterling, a former CIA employee charged with leaking classified information.

True

In Gertz v. Welch, the Court determined that private persons need more protection from defamation than do public figures.

True

In May 1918, Congress amended the Espionage Act to make it illegal to do, say, or write anything that might tend to hinder the war effort, support enemies of the US, or bring contempt or disrespect upon the government.

True

In NY Times v. United States, the Supreme Court lifted an injunctive prior restraint and allowed the newspaper to resume publication of the "Pentagon Papers."

True

In United States v. Progressive, a federal district court issued a prior restraint against the publication of an article about bomb building that was based on information gathered from unclassified sources.

True

In Whitney v. California, the Supreme Court upheld Anna Whitney's conviction despite the fact that she herself had never advocated illegal activity.

True

New York Times reporter Judith Miller spent time in jail because she would not divulge the name of her source, and was not released until he released her form her confidentiality pledge.

True

New communication technology makes invoking prior restraint almost impossible.

True

Section 230 of the Communications Decency Act of 1996 makes it difficult to sue Internet service providers for defamation.

True

Suits filed with the intent to punish citizens for speaking out are called SLAPPS cases.

True

The Smith Act of 1940 prohibited the knowing or willful advocacy, or teaching, or the duty, necessity, desirability, or propriety of overthrowing the government of the U.S. by force of violence.

True

The actual-malice standard requires a public figure in a defamation suit to prove the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not."

True

The bad-tendency test permitted the government to stop speech before it had a chance to become effective.

True

The Espionage Act was a heavy-handed legislative response to political upheaval caused by which of the following?

WWI

Watts v. U.S. (1969)

Watts makes a threat about shooting LBJ, courts decided Watts' claim didn't constitute a true threat

In which of the following cases did the Supreme Court hold that the First Amendment protected students from being forced to salute the U.S. flag and recite the Pledge of Allegiance in school?

West Virginia v. Barnette

XYZ Affair

a diplomatic incident between France and America in the late 18th century that led to an undeclared war at sea- Pres. John Adams dispatched three ministers to France in 1797 to negotiate a commercial agreement to protect U.S. shipping n April 1798 the machinations of the three French agents (called X, Y, and Z in the diplomatic correspondence) were made public in the United States. There was a great outcry over the bribe solicitation, followed by preparations for war- leading Federalists used the threat to national security to justify measures, opponents complained that the laws could also be applied to critics of President John Adams

Planned Parenthood v. American Coalition of Life Activists (9th Cir.2002)

a group of pro life advocates created a website that released the names of doctors who preformed abortions- they released their personal information and crossed them out as they were killed Jury found it was a true threat, American coalition appeals, and the federal circuit court reverses, plantiffs asked for en banc review so there would be more judges on the panel

Daniel Ellsberg

a scientist who had worked for the government on a secret history of the Vietnam conflict, gave copies of his manuscript to the NYtimes and Washington Post

Qualified Priveleage and the 3 Tests

came from the dissent in Branzburg v. Hayes- sets up a 3 part test that states when a reporter is asked to reveal sources the government must...

Frohwerk v. U.S. (1919)

convicted for publishing 12 articles opposing America's entry into war- a new fire metaphor "circulation of paper where a little breath would be enough to kindle a fire" clear and present danger triology

Abrams v. U.S. (1919)

convicted for throwing leaflets out of a factory window denouncing Ameican intervention in Russia, Holmes and Brandeis were the dissenters whom changed clear and present to clear and imminent - the dissents became doctrine, and ellicited the free market place of ideas = freedom of thought

Judicial Review

court is willing to review, role of supreme court is to judge if the law is constitutional

Judicial Activism

criticism that judges try to write a law from the bench- implement law

Oliver Wendell Holmes, Jr. and Louis Brandeis

defenders of freedom of speech- famous dissents. their positions in Abrams v. United States (1919) becae doctrine eventually- shift from clear and present to clear and imminent

Espionage Act of 1917,

directed @ acts of sabotage and the protection of military secrets, amended in 1918 to criminalize expression that underminded war effort

WWI Origins

fighting breaks out in Europe because of anarchist, allied powers (who we joined) wage total war against central powers

Wikileakes Controversy

founded by Julian Assange- it is a website allows people to publish secret information, news leaks and classified media provided by anonymously

U.S. v. Progressive (W.D. Wis. 1979)

governement dropped case after other publications published info the internet made public restraint nearly impossible

In Schenck v. United States, the Surpeme Court considered the conviction of an individual who

had mailed leaflets to men recently drafted to serve in the army

In New York Times v. United States, the Supreme Court held:

he government had not satisfied the presumption against prior restraint.

Imminent Lawless Action

imminent lawless action = Brandenburg, 1st Amendment protects advocacy of abstract doctrine. to limit speech, governement must prove an intent to incite illegal action and lawless action must be immenent/ immediate

If rigorously applied, which of the following tests offers the most protection to speech that might incite?

imminent-lawless-action test

Deep Throat

leaked info regarding the Watergate scandal- Mark Felt was a high up in FBI most famous anonymous source of all time

Per Curiam

on behalf of the majority, someone didn't want to sign their name "of the court"

The Pentagon Papers

papers that contain a history of the U.S. role in Indochina from World War II until May 1968 and that were commissioned in 1967 by U.S. Secretary of Defense Robert S. McNamara. They were turned over (without authorization) to The New York Times by Daniel Ellsberg

Gitlow v. New York (1925) (Left Wing Manifesto, Spark Metaphor, 14th Amendment)

published left wing manifesto= urged establishment of Socialism spark metaphor= "circulation of paper where a little breath would be enough to kindle a fire" 14th Amendment= federal law > state law, born or naturalized, due process clause

New York Times v. Sullivan (1964)

this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally defamemation verdict reversed on account that they couldn't prove knowledge of falsity or reckless disregard for the truth

Freedom of Information Act

under the belief that the public should have access to public records. only appeals to federal agencies FOIA

Precedent

what matters in a decision

Socialism and Anarchism

without authority, believed government is harmful/unecessary, governement is always tyrannical

Dissent

written when a justice doesn't agree with majority opinion