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What is rule of law?
- Framework for society to establish rules and consequences for speech and behavior
- designed to advance public interest
- Good laws are clear and narrow as possible so don't infringe on others rights
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A thing decided: Where Law Comes From
- From variety of sources
- built on precedent or stari decisis
- a thing decided
- not inflexible; adapts w/society
- Framers designed Const. so could be modified to fit needs of people
- Constitution is foundational contract between citizens and government
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6 Ways Law is Made
- Constitutions (state/fed)
- Common Law--vast body of law created through court rulings and decisions
- Statutes (state legistlatures & US Congress)
- Administrative rules
- Executive orders
- Equity law (judges create these rules to ensure fairness)
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Constitutions
- Est. structure of gov
- US Const framed 1789 and ratified 1789 = SUPREME LAW
- 1st ten amendments = bill or rights
- State const. mirror federal but have local/distinct things
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Statutes
- written federal/state law
- adopted public process
- often flawed adn must be interpreted
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Equity Law
- made by judges to ensure fairness of legal proceedings
- ex= pentagon papers
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Common Law
- judicially created
- precent
- US Supreme Court binding constrain ALL lower federal court
- can modify/overturn precedent
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Administrative Law
- largest proportion of US Law
- huge range federal and state agencies that make them
- Courts expect show deference to admin law
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Executive Orders
- heads can make law (pre, mayor, governor)
- ex = pres pardons, curfews in emergencies, restrict access to military zones, etc
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Administrative Courts
- courts of admin agencies created by statutes
- fed trade commission
- fed court of claims
- mass. division administrative appeals
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Trial Courts
- find facts and render decisions; only courts where juries sit
- hear variety of disputes from criminal cases to divorces to real estate matters
- state trial courts
- US District Court (whitey bulger in boston)
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Appellate Courts
- parties unhappy w/admin or trial court decisions can appeal to state or federal appellate courts
- will generally only decide if correct law or process was applied; will not revisit facts
- state appellate courts; us circuit cour of appeals
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Supreme Courts
- final arbiters of case/controversy
- each state has a "high court"
- Mass. Supreme Judicial Court
- US Supreme Court
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"Congress Shall Make No Law"
- Court not considered it an absolute ban on restricting press
- living doc whose meaning evolves w/societal changes
- first protected in Bill of Rights 1791
- 1925 SCOTUS applied it to state legislature
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Unprotected Speech
- laws that bar blackmail, extortion, perjury, false advertising
- disruptive speech in classroom would be valid
- ad hoc balancing test
- what was framers "original intent"
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Origin 1st Amendment
- locke and milton
- colonialists feared central gov
- James Madison wrote series of Amendments
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John Locke
- social contract between governed and those they elect
- certain endowed rights just by being born
- life liberty property
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John Peter Zenger
- NY publisher accused of seditious libel
- publicly criticized colonial gov
- Alexander Hamilton --> No one should be jailed for telling the truth
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Values of Free Speech
- individual liberty
- self government
- limited government power
- attainment of truth
- safety valve
- its own end
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Near v. Minnesota
1931 case that first time court expressed view that banning speech before expressed (a prior restraint) is LEAST TOLERABLE FORM OF BAN under 1st amendment
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Pentagon Papers and National Security
- First time in US history feds try to prevent press from publishing because of "naitonal security"
- publication woudl damage US-foreign relations
- Press victory? not clear cut
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Content Neutral
laws that incidentally and unintentionally affect speech as they advance other important government interests
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Content based
laws enacted because of the message, the subject matter, or the ideas expressed in the regulated speech
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Strict Scrutiny
- Court will apply this in cases where the speech itself is being regulated (desecration fo the US flag i.e.)
- Three part test
- 1) Is the law necessary
- 2) Does it advance a compelling government interest
- 3) is the government using the least restrictive means to regulate the message
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Types of Speech
- Political speech
- elections and campaign finance
- anonymous speech
- government speech
- public and non-public forums
- compelled speech
- private property as public forum
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Political Speech
- lies at core of first amendment
- strict scrutiny test generally applied
- still allows businesses to fire employees for political speech
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Anonymous speech
- Do citizens have a right to keep anonymous speech secret?
- names of individuals who signed a WA state referendum to repeal new gay rights laws must be discloses public
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Compelled Speech
- NH law the made it a crime to cover up the state's license plate "live free or die"
- citizen fined $50 and served six months in jail for doing so
- Court ruled he could not be "coerced into advertising slogan that he found morally, ethically, religiously, and politically abhorrent"
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What kind of speech can government restrict?
- Threats to national security
- The US Patriot Act
- designed to root out terrorism in the homeland
- over 150 sections amending over 15 federal statutes covering criminal procedure, computer fraud, wiretapping, immigration
- free speech advocates concern about "chilling effect"
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Threats to National Security
- "chilling effect" --the discouragement of a constitutional right, especially free speech
- Patriot Act Implications:
- Section 206: roving wiretaps and secret court orders to monitor people in US suspected of terrorist involvement
- Section 214 and 216: expand government power to monitor internet communications in criminal investigations
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Patriot Act implications
- Section 215: relaxes oversight of search warrants on business, medical entities, educational, library or bookstore records
- also imposes a gag order so those enttities cannot acknowledge publicly they have been subject to Patriot Act "national security letter"
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What is the compelling government interest?
It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime"
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Time, Place, Manner Regulations
- Government can regulate the time, place, and manner of speech
- Content neutral regulation--government is not regulating based on what is being said; more flexibility for government
- Content based regulation--stricter judicial scrutiny on government action because it is the speech itself being curtailed
- government must prove it is necessary to achieve a "compelling state interest"
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Evolving Law on Speech Restrictions
- Clear and Present Danger Test 1919
- restrictions on speech will be upheld if they are necessary to prevent a "clear and present danger" to the nation
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Evolving Law on Speech Distinctions p.2
- Court looked at whether words would be "a little breath that would be enough to kindle a flame"
- clear and present danger test used up until 1960s when court refined it in the "Brandenberg test"
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Brandenberg Test
- Brandenberg v. Ohio 1969
- Clarence Brandenberg, ohio TV repairman adn KKK leader spoke to rally of KKK members in woods gathering urging tehm to take "revengeance" against gov. leaders
- convicted under state law that made it a crime to conspire to violently overthrow gov
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Three-part test in Brandenberg
- Replaces the vague "clear and present danger"
- 1) Is the speech directed towards inciting
- 2) immediate violence or illegal action and
- 3) is likely to produce that action
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Demonstrations
- Generally protected speech, especially in public forum
- stricter restrictions on private property
- but case by case analysis
- 2002 10th circuit case Church Latter Day Saints banned pedestrians from city sidewalks because they bought the property
- The city cannot create a First Amendment free zone
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Abortion Protest
- US Supreme Court has balanced rights of protesters to "speak" versus rights of people visiting and working at abortion clinics
- "strict scrutiny" tests--is the regulation teh most narrowly tailored restriction on speech possible to achieve gov goals pf public safety, privacy
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Prior Restraint and Vulgar Speech
- anti war protester wearing jacke in LA courthouse
- convicted of disturbing the peace
- "one man's vulgarity is another man's lyric"
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Prior Restraint and Hate Speech
- teh "fighting words" doctrine: Chaplinsky v. New Hampshire (1942)
- US Supreme Court upheld conviction of man whose speech would incite an IMMEDITE violent response
- symbolic speech passes constitutional muster i.e. burning an american flag as protest
- burning flag to incite violence NOT protected
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Fighting Words
- US Supreme Court definition: words "by ther very utterance inflict injury or tend to incite immediate breach of peace"
- Chaplinsky v. NH
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Hate Speech
- Primary SCOTUS case: RAV v. City of St. Paul
- White teenage boys who late at night made wooden cross and set ablaze in yard black family
- boys convicted under city ordinance that punished display of symbols or objects that arouse "anger, alarm, or resentment"
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Parades
- 1995 SCOTUS allowed private parade organizers in Boston to ban gays from marching in Patrick's Day parade
- city officials couldn't use equal access to public accomodations law to force parade organizers to accept all groups
- "One important manifestation of the principle of free speech is what not to say"
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Anonymous Speech
- 1995 SCOTUS struck down law in Ohio that banned anonymous campaign literature
- 2001 ruling establisehd the "Dendrite Test" a plaintiff wanting to unmask the online identity of an anonymous person must meet five criteria to prove name is essential to claim of harm
- evolving legal area
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Taxation and Speech
- Tactic used by colonial gov to restrict speech
- SCOTUS ruled that states can't impose taxes on certian media, but not others --its discriminatory
- tax cannot be based on content being circulated; can't give tax break to religious organizations i.e. sales tax exemptions in Texas
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Tinker Test
- With non-university speech, schools can regulate speech if
- it disrupts regular school functions or violates the rights or interests of students
- it has low value such as being lewd and it conflicts with the schools goals or values
- if it is school-sponsored or made using school resources, such as a high school newspaper
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Reputation as item value
to have libel, a person's reputation must be WRONGFULLY damaged
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What is Libel
- first libel defendant was Socrates for slandering Greek gods; tried and executed in 399 BC
- English courts decided libel cases in secret; Star Chamber courts
- "seditious libel" was a criminal offense because it led to a breach of peace
- Libel comes from Latin word "libellus" or "little book"
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Chilling of Speech in 1798
- Sedition Act of 1798
- A crime to write anything "false, scandalous, or malicious of gov"
- Defendant could be sentenced to two years in prison
- Intent to silence gov critics
- Expired in 1801
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Chilling of Speech in 2016
- SLAPP lawsuits
- Strategic lawsuits against public participation; meritless lawsuits aimed at silencing one's critics
- 24 states have enacted "anti-slapp" laws
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Elements of Libel--6 elements and plaintiff must prove ALL have occurred
- 1) statement is an assertion of fact
- 2) it was communicated, even if just one other person saw or heard it besides plaintiff
- 3) is "of or concerning" the plaintiff
- 4) Is degamatory--wrongfully harms reputation
- 5) is false
- 6) the defendant is at fault
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Publication--Libel
- You cannot lawfully repeat a libel, even if you attribute
- publishers aware of material they published
- vendors and distributors (newspaper printers or bookstores) are exempt
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Internet Service Providers--Libel
- ISPs are protected under Communication Decency Act 1996
- Seattle man sued AOL for anonymous post falsely linked him to Oklahoma city bombings
- ISPs are immune because they only transit, don't originate, libelous material
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Libel--defamation
- False or injurious words that subject a person to hatred, contempt, or ridicule
- article headlines can be defamatory
- businesses can sue for libel
- trade libel is defamation of a product
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Elements of libel--falsity
- has to be false to be libelous
- truth will always be defense to libel
- burden of proof is on the plaintiff
- substantial truth can be defense
- implication or innuendo can be libelous; not all states recognize this
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Fault--elements of libel
- Must be proven to have a successful libel claim;
- Two types of fault:
- communicating with actual malice
- communicating with negligence
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Definition of actual malice
making a statement knowing it was false or with reckless disregard for its truth or falsity
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Damages--Four types
- Actual: most common; plaintiff must show quantity of harm suffered, including financial
- Special: awarded when there is a concrete monetary loss
- Presumed: where some degree of harm is assumed and plaintiff isn't required to produce proof of that harm
- punitive: monetary sum awarded to punish defendant
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Key Cases--Plaintiff Categories
- Public officials
- Public figures
- All purpose public figure
- LImited purpose public figure
- involuntary public figures
- losing public figure status
- private individual
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Defenses to libel
- Fair report privilege
- Fair comment and criticism
- opinion
- neutral reportage
- wire service defense
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Defenses to libel
- Innocent construction
- Letters to the editor
- Parody-Satire
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Defenses to libel p.2`
- Single publication rule
- libel proof plaintiff
- single mistake rule
- summary judgment
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Other defenses to libel
- Statute of limitations
- retractions
- responsible reporting
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Fair Report Privilege
- three part test
- 1) info obtained from official record
- 2) news report fair and accurate
- 3) source of statement not clearly noted in report
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Fair comment and criticism
by placing works in public domain, authors or creators are inviting comment and criticism
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Libel Defense: Opinion
- No such thing as a false idea
- the Ollman test
- 1) is the statement verifiable
- 2) what is the common usage or meaning of words
- 3) journalistic context
- 4) broader social context of statement
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Neutral Reportage
- If media reports accusation made by responsible party, protected even if libelous
- defense established 1977
- SCOTUS never ruled on this issue
- only applies to public figures
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Parody-satire
- Language that is loose, figurative and hyperbolic
- tends to negate the impression that a statement contains assertion of verifiable fact
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de minimus non curat lex
the law does not concern itself with trifles
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defining an emotional distress claim
a civil wrong that provides compensation for serious mental anguish directly caused by defendants conduct
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The development of emotional distress law
- evolved in part as alternative to failed attempts to successfully sue for libel or invasion of privacy
- very difficult to win: challenging to prove mental anguish
- lawsuits began to be filed in the 20th cent. as society gained insight into consequences of emotional harm
- some states only allowed emotional distress claims if there was documented physical injury
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Two categories emotional distress claim
- 1) intentional infliction of emotional distress
- 2) negligent infliction of emotional distress
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Intentional Infliction of emotional distress
- Defendant's conduct was
- extreme or outrageous
- beyond the bounds of decency in civilized society
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Negligent infliction of emotional distress
- defendant owed plaintiff a duty of care
- negligently breached the duty
- caused the plaintiff severe emotional distress
- the breach was the proximate cause of the harm
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Intentional infliction emotional distress, plaintiff must prove
- Intentional or reckless action
- defendant intended the harm
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- behaved in a reckless way; a way that a reasonable person would expect would cause harm
- public figures must prove actual malice:
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Negligent infliction of emotional distress: plaintiff must prove
- defendant owed duty of care
- negligently breached duty
- caused severe emotional distress
- breach was proximate cause of harm
- some states also require proof of physical harm
- in some states, light touching is enough
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Physical harm
- Plaintiff must show
- defendant negligently published material
- physical harm was foreseable
- it was proximate cause of harm
- media violence lawsuits rarely succeed
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incitement: an alternative to proving physical harm
- 1st amendment doesn't protect speech that incites harm
- brandengburg v. ohio
- hess v. indiana
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The incitement test
- Imminent lawless action
- Likelihood of lawless acts
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CDA Protection
Communications Decency Act protects web-service providers from claims related to third-party content
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