Free Speech Final Exam Other Questions
Habeas Corpus
"you have the body"
FTC
- Federal Trade Commission, First agency intended to help enforce antitrust laws but expanded to police issues of false advertising and given explicit command over public consumerism, Came into existence in response to the misleading commercial practices of the early 1900s, Makes sure the consumer knows exactly what they are getting and buying
SEC
- Securities and Exchange Commission (1930s), Response to Stock Market crash of 1929, Renewed importance in aftermath of recession of 2008 (didn't have enough power before), SEC polices false and misleading advertising for securities such as stocks and bonds.
Religio-Moral Heresy- components and primary relationships
1. False Doctrine- The teachings of "pagan religions", the atheist point of view 2. irreverence- comedians making fun of a religion or religious leader 3. The profane and disgusting speech- nasty language, "7 dirty words" 4. Sexual, sensual, and erotic communications- pornography 5. Opinions and facts of science- evolution 6. Dissenting views concerning private morality- view point from some sexologist that "masturbation is good for you"
"Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point"
Clarence Thomas
"...much linguistic expression serves a dual communicative function: 1 it conveys not only ideas capable of relatively precise detached explication, but 2 otherwise inexpressible emotions as well."
Cohen v. California
"One man's vulgarity is another's lyric"
Cohen v. California
Cyberporn
Communications Decency Act of 1996 - prohibited knowingly transmitting obscene or indecent messages to minors under 18, as well as knowingly sending or displaying patently offensive communication in a manner that is available to a person under 18.
"It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views...and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace."
Feiner v New York
"If the speaker here were not corporations, no one would argue say you can silence..."
First National Bank of Boston v Bellotti
FDA
Food and Drug Administration (1906), Polices foods, drugs, medicines and liquor sales and development
14th Amendment
Former slaves are citizens. Guaranteed rights of citizenship to all persons born or naturalized.
Writ of Certiorari
Grant from SC to hear case (rare)
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent"
Holmes
"the best test of truth is the power of the thought to get itself accepted in the competition of the market"
Holmes
Holding
How a case is decided and on what basis
Adult Businesses
Involving strip clubs and adult video bookstores: zoning laws are ruled constitutional as long as nuisance licensing attempts aren't employed (licensing practices needs to be at a timely manner), expressive conduct inside adult businesses can be regulated narrowly for the interest of protecting order and morality.
"And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength..."
John Milton
"If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind."
John Stuart Mill
"The law's effort was confined to 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 First, and in violation of the Fourteenth, Amendment to the Constitution."
Justice Abe Fortas
"While study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the [Constitution]... the State may not adopt programs or practices in its public schools or colleges which 'aid or oppose' any religion..."
Justice Abe Fortas
"no need to protect obscenity because the purpose of the First Amendment was to protect ideas, and obscenity contains no ideas worth protecting"
Justice Brennan
"Constitution... guarantee[s are] not confined to the expression of ideas that are conventional or shared by the majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less that advocacy of socialism or the single tax..."
Kingsley International Pictures v Regents case
CAN-SPAM Act
Law that sets guidelines for what SPAM is allowed: Must truthfully identify yourself, must provide opt-out option, etc.
"Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the gov, assess the value of the info presented. Thus, even a community that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment"
Liquor Mart Case
"The State has failed to establish a "reasonable fit" between its abridgment of speech and its temperance goal ... It necessarily follows that the price advertising ban cannot survive the more stringent constitutional review that Central Hudson itself concluded was appropriate for the complete suppression of truthful, no misleading commercial speech."
Liquor Mart Case
"matters that may or may not be publicly reported or disclosed to the public, because of the mass coverage by news media and the reasonable likelihood of prejudicial news which would make difficult, if not impossible, the impaneling of an impartial jury and tend to prevent a fair trial."
Nebraska Press Association v Stuart
Judith Miller
New York Times reporter who refused to identify her confidential source that had told her that Valerie Plume was a CIA agent. Held in contempt of court and in jail 85 days before her source released the confidentiality agreement and she disclosed his name: Lewis Libby. After the incident, she and others began arguing more for a federal shield law to protect journalists.
Precedent
Previous decision given high weight, but courts not bound by it, The lower the court, the more precedent matters, Always remember: FACTS are determined by jurors. LAW is determined by judges. Overturning precedent is really quite rare. Usually makes legal history.
Gag Order
Prior restraint practice where you prevent media from talking about something to help ensure a fair trial.
Dicta
Reasons around/for a holding, but not the holding itself
"...we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas that to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."
Reno v ACLU
"Free speech carries with it some freedom to listen"
Richmond Newspapers v Virginia
"Without some protection for seeking out the news, freedom of the press could be eviscerated."
Richmond Newspapers v Virginia
"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."
Sir William Blackstone
Blasphemy
Speaking against what is sacred. Expression that reviles or curses the deity or makes fun of religion.
"A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
Terminiello v. Chicago
Prior Restraint
The censoring of a message before it is communicated
RICO Laws
The prosecution and defense of individuals who engage in organized crime. Racketeer Influenced and Corrupt Organizations Act is an effort to combat Mafia groups but is sometimes applied to seizing the assets, including property, of adult businesses when they sell what the local jury deems obscene even if the majority of what they sell is not obscene.
U.S. Postal Service
USPS has authority to deter false advertising to the point of halting deliver or orders addressed to a dishonest firm and acts against mail fraud.
"If there is a kind of commercial speech that lacks all First Amendment protection, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject ... Nor can it be dispositive that a commercial advertisement is uneditorial and merely reports a fact. Purely factual matter of public interest may claim protection."
Virginia State Board of Pharmacy v Virginia Citizens Consumer Council
"felony for any person ... with the intent of intimidating any person ... to burn ... a cross on the property of another [or a] public place" "any such burning of a cross shall be prima facie (Obvious on the face, you meant to hurt them) evidence of an intent to intimidate a person or group of persons"
Virginia v Black
Ex post facto punishment
When punishment occurs after something has been said or published.
Heresy
belief or opinion contrary to orthodox religious (especially Christian) doctrine
Central Hudson Test
four part test to determine when a government can prohibit commercial speech
26th Amendment
gave 18-21 right to vote
Indecent Broadcasting
not allowed between certain hours Cable has mostly different rules because you pay to let it in your house What gets lost when we take away foul language? -Ex. The show ER, character is about to die and screams "SHIT", and be shown originally because it is in the time frame to be shown but cant be in reruns, lost importance of the scene
Control of Communicators - Women
o Although the Bill of Rights guaranteed free speech rights to women, there were many societal constraints. o 1st time women were admitted to college was in 1833 at Oberlin—but as students they were only allowed to listen, not speak! o Women's Suffrage amendment passed in 1920 (19th Amendment)
Holmes and Brandeis
o Argued for expanded freedom of speech beyond the bad tendency test. o Developed the clear and present danger test. o Slowly led the Court to liberalize position on political dissent. o Their position would ultimately win out - although this would take decades.
Justice frank Murphy
o Authored the unanimous landmark decision of Chaplinsky v New Hampshire o Upheld that fighting words are unconstitutional because they are worthless and incite a breach of peace
Three Broad Trends of Rulings
o Bad Tendency: Bill of Rights to 1919 ♣ Speech has tendency to harm ♣ Source: English Common Law o Clear & Present Danger: 1919-1969 ♣ Danger must be both obvious and immediate ♣ Schenck v. US o Incitement Rule: 1969-present ♣ Illegal conduct must be both imminent and likely to occur ♣ Brandenburg v. Ohio
Susan Epperson
o Biology teacher o Epperson v. Arkansas case o Wanted to teach evolution in her class o Won victory for academic freedom
Hierarchy of US Law
o Constitution o State Constitutions o Statutes ♣ (1. Congressional Statutes) ♣ (2. State Legislative Statutes) o Municipalities
Means available to allow for fair trials without restricting media rights
o Continuance - a defendant can request a delay of a trial on the theory that news stories will be forgotten and the effects will fade o Change of venue - a different community will care less o Voir dire - not all members of a community are equally informed and so jury selection matters o Jury instruction - judges can instruct juries to disregard media accounts or not to read the news o Sequestration - juries can be kept physically away from external influences during a trial
1st Amendment
o Establishment Clause: "Congress shall make no law respecting an establishment of religion" o Free Exercise Clause: "Congress shall make no law...prohibiting the free exercise [of religion]" o Speech Clause: "Congress shall make no law... abridging the freedom of speech o Press Clause: "Congress shall make no law...abridging...the freedom...of the press o Assembly and Petition Clauses: "Congress shall make no abridging...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
F.I.R.E. (Foundation for Individual Rights in Education)
o Gives individual institutions a rating for its speech policies o Red: at least one policy that both clearly and substantially restricts freedom of speech o Yellow: policies that could be interpreted to suppress protected speech or polices that while restricting freedom of speech, restrict only narrow categories of speech o Green: no policies that seriously imperil speech o SMU IS YELLOW
Miller Test
o Something is obscene if the average person applying contemporary community standards finds the work as a whole: -Prurient- overly interested in sex -Patently offensive- Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law -Lacking in serious literary, artistic, political, or scientific value
Justice Henry Blackmun
o Spokes man on supreme court that that extended protection of the first amendment to certain types of commercial speech o Worked on the Virginia State Board of Pharmacy v Virginia Citizens Consumer Council case -Made clear that gov and states could countine to police false or misleading ads and advertising
Substantive Justice
o Substance that justice is made of ♣ If you are not guilty you will not be found guilty o based in merit- you get the justice you deserve if you meet the requirements
Roth Test
o To be labeled obscene, something would have to be: -Worthless - "utterly without redeeming social importance" -Prurient - just about sex "having or encouraging an excessive interest in sexual matters"
Control of Communicators - Blacks
o Two major ways: ♣ Severely limiting educational opportunities and thereby reducing the prospect that a black could effectively communicate ♣ Using persuasion, repressive laws, and extra-legal intimidation and societal constraints
Epithets
o an adjective or descriptive phrase expressing a quality characteristic of the person or thing mentioned -Ex. old men are often unfairly awarded the epithet "dirty"
Procedural Justice
o procedures of justice o right to a fair & speedy trial to hear evidence, appeal etc. o state is obliged to treat every individual the same & fairly before the state o limits of state power-bodily integrity that cannot be crossed
Hicklin Rule
o test for obscenity is whether the matter will deprave and corrupt those whose minds are open to such immoral influences (especially children) o You don't judge the work as a whole; if one part is "immoral" or indecent, the whole thing goes
Sedition Act
punishes any "false, scandalous and malicious" writing against the government
Defamation
the action of damaging the good reputation of someone; slander or libel
19th Amendment
women can vote
Fighting words
written or spoken words, generally expressed to incite hatred or violence from their target
corporations and commercial speech
♣ Corporations have limited liability (cant go after corporations) and perpetual life (they don't die). This makes the different from real people. ♣ They can declare bankruptcy. So can you and I. ♣ They have NO real privacy rights. That makes them different from us. ♣ They have no 5th Amendment rights against self-incrimination. Again, that makes them different. ♣ Ex. Voltswagon said they were environmentally friendly but lied, you can sue the company but not the CEO or the people that lied
Sixth Amendment
Amendment of the constitution that guarantees a speedy, public trial by an impartial jury in the state and district where the crime shall have been committed.
1925 Scopes Trial
Case where anti-Darwinism statute in Tennessee made it illegal to teach evolution in schools. Teacher challenged the law by teaching it anyway and in a famous case between Williams Jennings Bryan and Clarence Darrow, made such laws look silly, though didn't win the case.
Television Cameras
Devices not allowed in federal courts or the Supreme Court but allowed in state courts because they are not found to automatically hurt the fair trial of an individual.
Puffery
Exaggerated description to sell goods or services. If a reasonable person would recognize a claim as hyperbole (not taken literally) and not be influenced by it, the FTC will usually ignore it
