Mass Comm Law
societal good that stems from free expression · models / perspectives / theories of free expression • the U.S. legal system, as discussed in class o court systems
- 52 Systems
• judicial review
- The power of the courts to determine the meaning of the language of the constitution and to assure that no laws violate
o how courts operate • the difference between trial and appellate courts
- Trial Courts: - Fact-finding - Jury option - empowered to consider facts and law - Appellate Courts: - Law-reviewing - no juries - usually consider law only
· sources of U.S. law
- constitutional law: the set of laws that establish the nature, functions and limits of government. - statutory law: Written law formally enacted by city, county, state, and federal legislative bodies - administrative law:The orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties. - executive orders: orders from a govt. executive that have the force of law, i.e. president, mayor, governor.
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- equity law: Judge-made-law that does not utilize precedent but uses fairness and ethics.
• the U.S. Supreme Court o how it operates (for example, how it chooses which cases to hear, the kinds of cases it hears, the kinds of rulings it can make, the kinds of opinions that can be written)
-writ of certiorari ("cert"): 4 justices must vote in favor of "cert" for the case to be heard hears cases where laws involved may be unconstitutional -rulings: affirm, reverse, remand (sending it back down to a lower court to rehear it) -opinions: concurring, dissenting, or per curiam (anonymous opinion)
the elements that laws that restrict expression in either time, place and manner must have to be constitutional
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what courts are primarily evaluating in constitutional cases
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• symbolic speech
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• bad tendency
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. It was overturned by the clear and present danger test/ imminent lawless action test.
o how Va. v. Black may have changed how courts look at laws that restrict cross burning
Black was a member of the KKK and lit a cross on fire. Law was aimed at content, not the secondary effects of protected speech. Room opinion shifted when thomas spoke. Such a law must clearly give prosecutors the burden of proving that the cross bruning was intended as a threat and not as a form of symbolic expression.
how the "clear and present danger" standard has evolved
For decades, the clear and present danger test helped settle cases using balancing tests. Following Bradenburg v Ohio, KKK free speech case, the clear and present danger test adopted the principle that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action."
• the concept that addresses whether the rights of an orderly speaker are favored over those of an offended or antagonized audience member
Hecklers Veto
Texas v. Johnson
Johnson arrested for burning flag at national convention in Dallas. Was Johnsons act symbolic speech? Johnson won.
Cohen v. California
Man wore jacket that said f*ck the draft. Cohen won. Thus, Harlan's arguments can be constructed in three major points: First, states (California) cannot censor their citizens in order to make a "civil" society. Second, knowing where to draw the line between harmless heightened emotion and vulgarity can be difficult. Third, people bring passion to politics and vulgarity is simply a side effect of a free exchange of ideas—no matter how radical they may be. In a dissenting opinion, Justice Harry Blackmun, joined by Burger and Black, suggested that Cohen's wearing of the jacket in the courthouse was not speech but conduct (an "absurd and immature antic")[5] and therefore not protected by the First Amendment.
prior restraint and the U.S. Supreme Court ruling that clarified the concept and its exceptions o under what conditions it can be constitutional
Prior restraint is censorship imposed on expression before the expression actually takes place. The Supreme Court made the ruling in Near V. Minnesota that prior restraint is unconstitutional, except in cases when national security is at risk.
• key aspects of the R.A.V. and Tinker cases from "Speaking Our Minds"
R.a.v. Flag burning case. Tinker- Armbad case Both cases were won by R.A.V. and TInker.
• right of reply (access) laws o why the U.S. Supreme Court ruled differently in two of these cases, Miami Herald v. Tornillo and Red Lion Broadcasting v. FCC
Right of reply is the right to defend oneself against public criticism in the same venue where it was published. Miami Herald v. Tornillo overturned a Florida state law requiring newspapers to allow equal space in their newspapers for political candidates in the case of a political editorial or endorsement content on the basis of freedom of the press. Red Lion Broadcasting v. FCC upheld that broadcast stations must allow a response to a personal attack as part of the equal time rule.
· strict scrutiny, its elements and when it is applied:
Strict scrutiny is a test for determining the constitutionality of laws restricting speech, under which the government must show it is using the least restrictive means available to directly advance a compelling interest. To pass strict scrutiny, the law must (1) be justified by a compelling government interest (2) be narrowly tailored (3) be the least restrictive means.
· be able to examine a series of rulings and determine what kind of overall theme is present (for example, Texas v. Johnson and Cohen v. California)
Texas v. Johnson Cohen v. California
key terms such as • rule of law
The framework of a society in which pre-established norms and procedures for consistent, neutral decision making. It was designed to promote justice and to provide a relatively clear, neutral and stable mechanism for resolving conflicts
o how justices are approved after being nominated:
U.S. Senate approves or rejects nominees
• seditious libel
Written or spoken words, pictures, signs or other forms of communication that tend to defame, discredit, criticize, impugn, embarrass, challenge or question the government, its policies, or its officials. The Alien and Sedition Acts tried to prevent it. laws meant to prevent it o Criticism of the government, Espionage act 1917 o Seditious act- prohibited obstructing armed forces recruiting by writing or publishing disloyal. o
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common law: unwritten, judge-made law consisting of rules and principles developed through custom and precedent.
o how long a justice can serve
lifetime appointments
• how the kind of forum in which speech occurs can help determine whether it is protected speech
o The more public the forum, the more protection. Traditional- Streets Public parts o Designated - City owned auditorium o Public Property- Prisons, military base o Private Forum- Shopping malls
• heckler's veto
o A first amendment concept that generally favors the right of an ordinary speaker over the right of an offended or antagonized audience member
• the First Amendment "awakening," when it was, and what ruling was key to the shift in thinking, and who wrote that opinion
o Schenk c. u.s.. (1919) - Mailing of anti-war pamphlets o Supreme court won o "Clear and present danger"
speech and press freedom in schools
o high school and university settings o how the freedoms have evolved due to court rulings
• the First Amendment and specifically what it protects
o speech and press
common law-
the lowest source of law. (further explanation below)
• stare decisis
where the court stands by the previous decision
o the names of the current justices
• Chief Justice John Roberts • Associate Justice Scalia • Associate Justice Kennedy • Associate Justice Thomas • Associate Justice Ginsburg • Associate Justice Breyer • Associate Justice Alito • Associate Justice Sotomayor • Associate Justice Kagan
be able to analyze, compare and explain the major court rulings discussed in class that had similar circumstances but different outcomes
• be able to analyze, compare and explain the major court rulings discussed in class that had similar circumstances but different outcomes • W.VA Board of Educ. V. Barnette (1943) • Compulsory Flag Saluting • Students were suspended for not saluting flag • Court ruled in favor of students • Tinker V. Des Moines Ind. School District (1969) • No distruptive symbolic speech, 7-2 in favor of Tinker. • Fraser V. Bethel School District • Fraser (endorser, introducer of speech) said offensive things in front of audience. • Freedom to advocate controversies vs. interest in teaching student. • Boundaries of socially appropriate behavior • School won • Hazelwood School District V. Kuhlmeier • Principal censored content in school newspaper. • "Schools need not tolerate students speech that is inconsistent with its basic educational foundation" • School wins, did these cases erode tinker? Not really. • Barber V. Dearborn Pb. Sch. (2003) • T-shirt labeling bush an international terrorist o School lost • Morse V. Fredrick (2007) • Alaska HS student who made "bong hits for jesus" banner. • U.S. Court of appeals cited tinker and U.S. supreme court reversed appeal "Schools can prohibit students from displaying messages that promote illegeal druge use. ...