MEDIA LAW - Midterm #1
content-neutral laws
(included viewpoint neutral & subject matter neutral) content-neutral laws = laws that incidentally and unintentionally affect speech as they advance other important governmental interests. *Includes Time/ Place/Manner Regulations Content-neutral regulations are also called "time, place and manner restrictions," as the regulation seeks not to limit any particular type of speech may take place. Upheld if government can show that the regulations: 1) advance a SIGNIFICANT INTERESTS unrelated to the suppression of speech, 2) do not burden substantially more speech than necessary or are NARROWLY TAILORED to further those interests, and 3) leave open ample ALTERNATIVE CHANNELS for communicating the speaker's message content-neutral speech regulations are generally subject to INTERMEDIATE SCRUTINY (same as O'Brien Test) To be considered constitutional under intermediate scrutiny, a law MUST: 1) fall within the power of government and 2) advance the IMPORTANT/SUBSTANTIAL government interest 3) unrelated to suppression of speech 4) be narrowly tailored to impose only an incidental restriction on First Amendment freedom
Newsgathering
- The First Amendment protects the press by: 1) The government cannot interfere with the publication of material except under unusual circumstances (national security risks) 2) Publishers generally do not have to fear criminal sanctions - SCOTUS has never explicitly recognized a First Amendment right to gather information
advertising claims
1) affirmative claims = product attribute specific claim that are susceptible to definitive proof 2) puffery claims = incapable of any kind of verification, do not address any specific characteristic of the product 3) implied claims = the visual material in an ad may communicate a claim about the product or suggest a greater degree of performance 4) express claims: literally made in the ad
Advantages of Republican Government
1) fairness 2) common welfare 3) freedom and prosperity
First Amendment Rights
1) freedom of speech 2) freedom of religion 3) separation of church in state (govt can't establish religion) 4) freedom to assemble 5) freedom of the press 6) petition of the government for a redress of grievances
Central Hudson Test for Commercial Speech (3-part)
1) is the ad false or misleading, or is it an illegal product or service? - false speech is NOT protected but the 1st A so a deceptive ad may be banned or regulated - ads for illegal products may also be regulated in some cases 2) does the government have a "substantial interest" in regulation? - need not to be a compelling interest but needs important interest 3) does the regulation directly advance the government interest? - this is open to interpretation - there may be a continuum between the severity of the interest and the specificity of the regulation that determines whether the regulation is acceptable or not 4) is the regulation sufficiently narrow? is there a reasonable fit between the law and the interest? - regulations should not be over broad Ex) Ex: 44 Liquormart, Inc. vs. Rhode Island: A state law banned the advertising of liquor prices anywhere other than the place of sale. - Was ruled unconstitutional - The law did not directly advance the interest of promoting temperance - No evidence that the law would significantly reduce alcohol consumption. - There were alternative forms of regulation like higher prices via taxes or rationing alcohol purposes. Ex) Lorillard Tobacco Co. v. Reilly: Massachusetts had regulations on ads for tobacco products including that outdoor ads could not be within 1000 feet of a school or playground and could not be within 5-feet of the ground. - This was ruled unconstitutional - Even though there was a substantial interest in preventing children from using tobacco, the regulation was not narrowly tailored, because it covered most areas in a city. Ex) Sorrell vs. IMS Health
Structure of the Judicial System: 3 branches of the Government
1) legislative branch -- (makes laws) 2) executive (enforces laws) 3) judicial (applies laws)
3 Categories of Speech
1) unprotected speech: obscenity, dread, incitements to violence - there are categories to determine when speech constitutes these things 2) commercial speech -- Central Hudson 4-Part Test 3) Symbolic Speech/Expressive Conduct --> O'Brien Test (content-neutral test)
Miller Test (Obscenity)
1) whether 'the AVERAGE PERSON, applying contemporary local COMMUNITY STANDARDS' would find that the work taken as a whole appeals to the PRURIENT INTEREST - prurient = having or encouraging an excessive interest in sexual matters - average person = only adults to consider the community standards, not their personal standards - community standards: 'local standards' can also mean 'state standards' 2) whether the work depicts or describes, in a PATENTLY OFFENSIVE way, sexual conduct specifically defined by the applicable state law; and 3) whether the work, taken as a whole LACKS SERIOUS literary, artistic, political or scientific VALUE - SLAPS - whether the reasonable person could find such value in the material Ex (applying Miller): A Philadelphia school district sought to ban bracelets with the message "I <3 Boobies (Keep a Breast)" The ban was ruled unconstitutional because it does not rise to the level of "plainly lewd" and addressed a social issue
Free Press/Fair Trial: ex) Richmond Newspapers v. Virginia
6th Amendment = the accused's right to a fair trial VS. 1st Amendment = the public's right to know (freedom of the press0 Ex. Richmond Newspapers v. Virginia A defendant was being tried for the fourth time on a murder charge due to three previous mistrials. The DA moved that the trial be closed, the state trial court judge granted the request. Neither the prosecutor nor the two newspaper reporters who were present in the court at the time objected to the closure, but the reporters filed a motion later that day asking for the order to be vacated. The judge denied the motion. The following day, the judge granted a motion to strike the prosecution's evidence, he then dismissed the jury, and ruled the defendant not guilty. All during this time, the proceedings were closed to the press and to the public. The VA SC dismissed the appeal by the newspaper that the judge's closure order be overturned. The US SC ruled the statute allowing the VA court to close the trial a violation of the 1st and 14th Amendment.
Free Press/Fair Trial: Why are courts concerned with open proceedings?
A public trial can bias jurors and thus prevent a defendant from receiving a fair trial The presence of the news media will seriously affect the courtroom decorum and ultimately the judicial process Extensive publicity may adversely affect the defendant and other witnesses, including the victim.
Deception Standard
A representation, commission, or practice is deceptive if it is likely to : 1) mislead consumers; and 2) affect consumer's behavior or decision about the product or service Ads must be truthful, not misleading, and substantiated
Brown v. Entertainment Merchants Assn
Brown didn't want violent video games to be available to minors. this was content-based and not narrowly tailored so it did not pass strict scrutiny A "state may not prohibit the sale of violent video games to minors."
Commercial Speech vs. Political Speech
Commercial = INTERMEDIATE SCRUTINY Political = STRICT SCRUTINY False commercial speech is NOT protected, but false political speech is MOST LIKELY to be protected Prior restraints are allowed on commercial speech, but NOT on political speech Commercial Speech CAN be compelled but political speech cannot be - can put label on a product (5% alcohol) Commercial speech is NOT as protected as other forms of speech - government may BAN false, misleading, or deceptive ads and those for illegal products or services - government may regulate time, place, and manner regulations involving political and commercial speech
Frequently Challenged Advertising and Marketing Practices
Deceptive or misleading environmental "green" claims Deceptive use of testimonials, endorsements, tests, surveys, logos, demonstrations, studies, etc. Failure to disclose material terms and conditions or product defects deceptive "free" or pricing claims misinterpretations about product or service
Types of Forums: Designated Public Forums
Designated Public Forums = not historically open for speech -related activities but the government has opened for speech activities on a permanent or temporary basis - regulate speech based on reasonable time/place/manner regulation - Ex. schools rooms that are open for after-school use by social, civic, or recreation groups
Free Press/Fair Trial: Reporter's privilege
Established through Branzburg v. Hayes Reporters claimed that the First A provided a privilege that protected them from revealing confidential information - their ability to report news would be irreparably harmed - sources would dry up - mere appearance before a closed grand jury could chill their access to sources who would never know what the reporter revealed - forced grand jury appearance alone would reduce the information available to the public in violation of the First A - by a 5-to-4 majority, the Supreme Court disagreed The court balanced the benefits of a reporter's privilege not to testify before a grand jury against the public interest in justice and favored the latter Anonymous Sources: The most anonymous source = Deep Throat, a confidential source relied upon by the WP reporters in the investigation of Watergate
Central Hudson Gas & Electric Corp. v. Public Service Commission
In Central Hudson, the Court considered a NY law prohibiting electric companies from advertising in a manner that would promote the use of electricity. The purpose being to save energy. - The USSC agreed that energy conservation was a SUBSTANTIAL INTEREST, but the regulation was more extensive than necessary to promoted that interest. It restricted advertising of services that would have no impact on energy consumption --? too OVERBROAD
Free Press/Fair Trial: 1st Amendment v. 6th Amendment
In Richmond Newspapers v. Virginia (1980), the Court held 7-to-1 that the First A guarantees the press and the public the right to attend criminal trials According to the Court, the right it NOT absolute, but "absent an overriding interest articulated in the findings, the trial of criminal case must be open to the public
Sorrell vs. IMS Health (Central Hudson Test)
In a Vermont legislature, a law was passed that banned the sale, transmission, or use of prescriber-identifiable data (PI data) for marketing or promoting a prescription drug without the consent of the prescriber. The law also prohibited the sale, license, or exchange for value of PI data for marketing or promoting a prescription drug. - Three companies (IMS Health, Verispan, and Source Healthcare Analytics) do this. Violated the First Amendment because it restricts the speech rights of data miners without directly advancing legitimate state interests. I ssue: does a Vermont statute banning the sale, transmission, or use of PI data, absent prescriber consent, unconstitutionally restrict the free speech rights of pharmaceutical research companies, manufacturers, and others to use that data? Holding: YES. it imposes content- and speaker-based burdens on protected expression, and is subject to heightened scrutiny. They SHOULD BE ALLOWED TO USE DATA FOR MARKETING The Sorrell Court found the Vermont statute to be viewpoint-based and speaker-based discrimination (against marketers) and said "heightened scrutiny" should apply (presumably strict scrutiny, but the Court did not say) but applied the traditional Central Hudson analysis anyway because the statute could not even withstands that level of scrutiny let alone "heightened scrutiny." Supreme law held law unconstitutional Unconstitutional → it's viewpoint based and speaker based because it's data used banning marketing and promotion specifically!
Speech Protections
Internet -- SCOTUS has ruled that the internet is entitled to FULL First Amendment protections Radio and Television = Public airways-more restrictions regarding obscene and indecent language - Advertising/commercial speech can be restricted - No limits on political/religious speech Motion pictures Speech is limited based on ratings
Free Press/Fair Trial: Access to the courts
Judges must determine that facts demonstrate all the following: 1) openness poses a substantial threat to a fair proceeding 2) no alternative exists that would effectively eliminate the threat to fairness 3) closure will effectively eliminate the threat 4) closure will be narrowly tailored to eliminate the threat and protect maximum public access to the judicial process Judges may limit attendance in the courtroom - including the number of media present - they may exclude recording devices in their courts Before closing a trial, judges must permit interested parties and the public to raise objections
Types of Forums: Limited Public Forums
Limited Public Forums = other than streets, parks and sidewalks, most public property is considered to be a limited public forum - ex. government property open for a speech activity - may be open at a specific time for a specific reason - can regulate speech to reserve them for their intended use - CAN REGULATE CONTENT OF SPEECH
Special Considerations for Comparative Claims
Must have hard data to substantiate market-based claims Performance clams must have head-to-head studies ex) Miller v. California - Miller convicted of misdemeanor of conducting a mass mailing a campaign advertising the sale of illustrated, sexually explicit books - Reaffirmed Roth's holding that "obscene material is unprotected" and then formulated a 3-prong test for obscenity Miller Test **
Types of Forums: Non-Public Forums
Non-Public Forums: - must have a tractional basis or reasonable relationship to a legitimate regulatory purpose - can regulate speech to reserve them for their intended use - Ex. a law prohibiting the billboards for purposes of traffic safety
Tests for Different Categories of Speech:
Obscenity = Miller 3-prong Test Incitement = Brandenburg Incitement Test Commercial Speech= Central Hudson 4-Part Test Symbolic Speech/ Expressive Conduct = O'Brien Test (content-neutral test Libel cases = Sullivan Actual Malice
Body of the Law: Constitution
One federal and 50 state constitutions All laws must comply with the provisions of the federal constitution States can provide expanded protections to citizens
Types of Forums: Public Forums
Public Forums = forums historically linked with the exercise of First A freedoms - must be NARROWLY TAILORED to achieve an important govt interest - STRICT SCRUTINY - regulate speech based on reasonable time/lace/manner regulation
puffery claims
Puffery claims = incapable of any kind of verification, do not address any specific characteristic of the product - while they may get consumers attention are unlikely to influence a consumer's purchase decision - subjective statements -- total opinion based (different definition of beautiful, etc.)
Test for Limited Public Forums & Non-Public Forums =
Test for Limited Public Forums & Non-Public Forums = Need not to be content neutral in non-public forums regulations of limited public forums and nonpublic forum will be upheld id they are: 1) viewpoint neutral 2) reasonably related to a legitimate government purpose
Test for Public & Designated Public Forums =
Test for Public & Designated Public Forums = Time, place, manner test / standards To be valid, government regulations of speech and assembly in public forums and designated public forums must: 1) be content-neutral (must be subject matter neutral & viewpoint neutral_ 2) be narrowly tailored to serve an important government interest 3) leave open alternative channels of communication
Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board
The Supreme Court struck down a law requiring that proceeds to criminals from books and other productions describing their crimes be placed in escrow for five years to pay claims of victims of the crimes. This is typical because it was content based and strict scrutiny is applied selling books describing crime -- served a compelling state interest
Types of Forums: (where is speech happening?)
The extent to which government may regulate speech-related conduct depends on whether the forum is involved is: 1) Public Forums - forums historically linked with the exercise of First A freedoms 2) Designated Public Forums - not historically open for speech -related activities but the government has opened for speech activities on a permanent or temporary basis 3) Limited Public Forums - other than streets, parks and sidewalks, most public property is considered to be a limited public forum 4) Non-Public Forums - - must have a tractional basis or reasonable relationship to a legitimate regulatory purpose
Levels of Scrutiny (Judicial Review)
The level of scrutiny refers both to: a) the level of IMPORTANCE given to the speech at issue and b) the presumption of PROTECTION the speech may recieve LEVELS 1) rational-basis review: - applied to a low-value speech (fighting words & obscenity) rarely receiving protection 2) intermediate scrutiny: - applied to commercial speech; - content-neutral regulations (time/place/manner) - "heightened review" 3) strict scrutiny: - applied to political or religious speech - content-based regulations - rarely upheld because highly protected - less likely to be declared contritutional
Free Press/Fair Trial: Pretrial Publicity
The principles laid down by the Court in Near v. Minnesota and Nebraska Press Association v. Judge Stuart effectively RESTRICT JUDGES from exercising CONTROL OVER PRETRAIL AND DURING-TRIAL PUBLICITY, although they can certainly control what takes place in the COURTROOM
FCC v. Pacifica Foundation (indecency)
WBAI (Pacifica) airs George Carlin's "Filthy Words" A father complains that him and his child heard it on the radio while driving FCC puts complaint in WBAI's file and issues declaratory order to Pacifica - According to FCC: Monologue was "patently offensive" but not necessarily obscene by definition WBAI sues, appeals case to appellate court- wins FCC then takes case to Supreme Court The US Supreme Court ruled that the FCC DID NOT violate the 1st A, but that the material is "indecent" and can be regulated because: 1) broadcast media is "uniquely pervasive" 2) broadcasting is uniquely accessible to children, even those too young to read Created a clarifying precedent for indecent speech Sexual or excretory activities and organs are not okay at all times of day when there is a risk for a potential kid audience
time, place, and manner regulations
a First Amendment concept that laws regulating the condition of speech are more acceptable than those regulating content; also, the laws that regulate these conditions the court has allowed the government more leeway in regulating the conduct related to speech, allowing it to adopt CONTENT-NEUTRAL, TIME, PLACE, AND MANNER regulations Ex: gov't may require activists to get a permit before holding a protest rally on a public street (but can't limit what they say) US vs O'Brien is similar - burning of draft cards
Strict Scrutiny Test
a court test for determining the constitutionality of laws aimed at speech content under which the government must show it is using the LEAST RESTRICTIVE MEANS available to directly advance its COMPELLING INTEREST RULES: 1) it must have a really good reason to restrict the speech 2) must use the least restrictive means 3) less likely to be upheld - less likely to be declared constitutional 4) law is being judged 5) content-based; viewpoint discrimination
Free Press/Fair Trial: gag orders
a judge's order that a case may not be discussed in public - more about releasing information/talking about it and taking it out of the courtroom - the SC's landmark decision in Nebraska Press Association v. Stuart called press gags an extraordinary remedy that is presumptively unconstitutional - court orders that bar the media from publicizing legally obtained information about ongoing trials must meet the HIGHEST STANDARD of review Before imposing a media gag, courts must consider: 1) the quantity and content of media coverage, 2) the potential effectiveness of alternatives to a gag and 3) the likelihood that a gag would remedy the harmful publicity Reporter's privilege established through Branzburg v. Hayes
Content v. Conduct
a regulation seeking to forbid communication of specific ideas (content-based regulation) is less likely to be upheld in comparison to a regulation based on conduct -- content-based is less likely to be upheld in comparison to time/place manner or content-neutral
Intermediate Scrutiny Test
a standard applied by the courts to review laws that implicate core constitutional values; also called Heightened review
What is a law?
a system of rules which a particular country or community recognizes as a regulating the actions of its members and which it may enforce by the imposition of penalties
claim substantiation
according to the FTC, before disseminating, an advertiser must substantiate all expressed and implied claims that are conveyed to reasonable consumers - aka, you must have the amount of the science you claim to posses Advertisers are liable for all reasonable interpretations
affirmative claims
affirmative claims = product attribute specific claim that are susceptible to definitive proof they are likely to influence a consumer's purchasing decisions express and implied claims can be made by: 1) direct affirmative statements 2) demonstration or illustration 3) endorsements either professional or consumer testimonials
Judicial Review
allows all courts to examine govt actions to determine whether they conform with the US Constitutions. It is the right of the court to declare any law or official governmental action invalid because it violates it violates a constitutional provision *ESTABLISHED in Marbury v. Madison 3 levels of Scrutiny
memorandum order
an order announcing the vote of the Supreme Court opinion
per curium opinion
an unsigned opinion by the court as a whole - unanimous agreement
Symbolic Speech: Tinker v. Des Moines Independent Community School District
black armbands: protect Vietname war school punished kids SC reversed decision and said kids were ALLOWED to do this because it was a freedom of expression and didn't interrupt school conduct
Reed v. Town of Gilbert
content-based because different rules for types of signs law wasn't upheld, it discriminated a church's ability to share messages
content-based laws
content-based laws = laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech To justify such content-based regulation of speech, the government must show the the regulation or tax is 1) NECESSARY to serve 2) a COMPELLING state interest 3) and is NARROWLY DRAWN AND THE LEAST RESTRICTIVE MEANS to achieve that end Examples of content-based court cases: Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board Brown v. Entertainment Merchants Assn Reed v. Town of Gilbert
Categories of Speech & Levels of Scrutiny
core protected speech = strict scrutiny commercial speech = intermediate scrutiny unprotected speech = rational basis review
Marbury v. Madison (1803)
court case that established judicial review
Indecency
doesn't have to appeal to the PRURIENT INTEREST both usually indecency and obscenity involve nudity or sex in some form Indecent speech may be protected in some contexts, but obscenity NEVER is Ex: FCC v. Pacifica Foundation - Created a clarifying precedent for indecent speech
express claims
express claims = literally made in the ad - what is says - all the copy -needs to have substantiation - are liable for all reasonable interpretations
administrative law + regulations
federal regulations made by federal agencies to implement the federal statutes (FCC, FTC)
Rational Basis Review
for unprotected speech the rational basis test is the LOWEST form of judicial scrutiny To pass Rational Basis Review: 1) the government must have a legitimate state interest in regulating the matter, and 2) there must be a rational connection between the law's means and goals - the means only need to be "rationally related" to a conceivable and legitimate state end - the regulation will be upheld unless the legislature has made an arbitrary or irrational decision
Viewpoint Discrimination
government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply STRICT SCRUTINY to determine whether the government acted constitutionally Ex: a law that regulates speech about abortion is content-based and not content-neutral, but it can nevertheless be viewpoint neutral if it takes no position A law that bans pro-choice speech about abortion is content-based and neither content-neutral nor viewpoint-neutral
implied claims
implied claims = the visual material in an ad may communicate a claim about the product or suggest a greater degree of performance - a true statement may imply a false claim Ex) 'Listerine kills germs that can cause colds' --> implies it will help prevent colds
obscenity (definition)
is a legal term that refers to the material that is legally found to be illegal by a court - obscenity has legal definition under the Miller Test
pornograhy (definition)
is simply a layperson's term for obscenity, and it specifically relates to sexually explicit expression - pornography is without legal significance in the United States and instead is commonly used (and misused) as a catch-all term used to describe anything sexually explicit they find offensive or believe is harmful
statutes
laws passed by congress
child pornography
possession = NO Osborne v. Ohio -- penalties for the private possession of child pornography Child pornography can be banned and citizens can be prosecuted for its sale or possession children are harmed which outweighs any interest in expression sexting was reduced from a felony to a misdemeanor offense if it occurs between minors in some states
Indecency (definition)
refers to both sexual and non-sexual material that is less offensive than the other two terms do (pornography and obscenity)
Speech in Schools
schools & school-sponsored events are NOT public forums, therefore speech in schools must be reasonably regulated to serve the school's educational mission Ex) Bethel School District No. 403 v. Fraser - profane speech, low-value speech - went against school's educational urpose Ex) Ex: Morse v. Frederick - "Bong hits for Jesus" Ex) Christian Legal Society v. Martinez - The "all comers policy" should be allowed - Christian legal society was upset about it, but it was still allowed
Free Press/Fair Trial: Benefits of open trials
secret justice may not be justice served. publicity sometimes keeps a trial fair tradition of openness in the judicial process showing the public has a stake in the trial
true threats
speech directed toward on or more specific individual with the intent of causing listeners to fear for they safety UNPROTECTED expression
Symbolic Conduct Test
symbolic conduct can communicate an idea, but not all regulation of symbolic conduct is prohibited The court will uphold a conduct regulation if (O'Brien Test): 1) the regulation is within the constitutional power of the government 2) it furthers an IMPORTANT governmental interest; 3) the governmental interest is UNRELATED TO THE SUPPRESSION OF SPEECH; and 4) the incidental burden on speech is NO GREATER THAN necessary Ex) United States v. O'Brien - the court upheld prohibition against burning draft cards to protect the government's important interest in facilitating the smooth functioning of the draft system - timing was crucial in this case and the burins of draft cards interrupting the drafting process and government interest was COMPELLING (needed enough people to go to war) Ex) Texas v. Johnson - Johnson burins of flag protect was protected expression under the 1st A --> content-based --> purely political - this was permitted because it was his expression
executive orders
the president or governor may issue directives that set forth a procedure or declare how an agency within the executive branch should operate
Time, place and manner test
to be valid, govt regulations of speech and assembly in public forums and designated public forums must: 1) be content-neutral (must be subject matter neutral & viewpoint neutral) 2) be narrowly tailored to serve an important government interest 3) leave open alternative channels of communication
common law
when a court decides a case and the resulting opinion is published a case may interpret a statue, or judges may create law simply by issuing an opinion
common welfare
when a govt tries to help everyone in a country, we say its serving common welfare when you help others and promote the common welfare, you are showing CIVIC VIRTUE
civic virtue
when you help others and promote the common welfare, you are showing CIVIC VIRTUE
What does "Supreme Law of the Land" mean?
· The constitution delineates the powers of each branch of the government · Laws enacted by the legislative branch cannot conflictwith the United States Constitution