Media Law Midterm

  1. 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
  2. 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
  3. 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)
  4. 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
  5. Statutes
    • written federal/state law 
    • adopted public process
    • often flawed adn must be interpreted
  6. Equity Law
    • made by judges to ensure fairness of legal proceedings 
    • ex= pentagon papers
  7. Common Law
    • judicially created 
    • precent
    • US Supreme Court binding constrain ALL lower federal court 
    • can modify/overturn precedent
  8. Administrative Law
    • largest proportion of US Law 
    • huge range federal and state agencies that make them
    • Courts expect show deference to admin law
  9. Executive Orders
    • heads can make law (pre, mayor, governor) 
    • ex = pres pardons, curfews in emergencies, restrict access to military zones, etc
  10. Administrative Courts
    • courts of admin agencies created by statutes 
    • fed trade commission 
    • fed court of claims 
    • mass. division administrative appeals
  11. 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)
  12. 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
  13. Supreme Courts
    • final arbiters of case/controversy 
    • each state has a "high court"
    • Mass. Supreme Judicial Court
    • US Supreme Court
  14. "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
  15. 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"
  16. Origin 1st Amendment
    • locke and milton
    • colonialists feared central gov
    • James Madison wrote series of Amendments
  17. John Locke
    • social contract between governed and those they elect
    • certain endowed rights just by being born
    • life liberty property
  18. John Peter Zenger
    • NY publisher accused of seditious libel
    • publicly criticized colonial gov
    • Alexander Hamilton --> No one should be jailed for telling the truth
  19. Values of Free Speech
    • individual liberty
    • self government
    • limited government power
    • attainment of truth 
    • safety valve
    • its own end
  20. 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
  21. 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
  22. Content Neutral
    laws that incidentally and unintentionally affect speech as they advance other important government interests
  23. Content based
    laws enacted because of the message, the subject matter, or the ideas expressed in the regulated speech
  24. 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
  25. 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
  26. Political Speech
    • lies at core of first amendment
    • strict scrutiny test generally applied
    • still allows businesses to fire employees for political speech
  27. 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
  28. 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"
  29. 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"
  30. 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
  31. 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"
  32. 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"
  33. 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"
  34. 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
  35. 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"
  36. 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
  37. 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
  38. 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
  39. 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
  40. 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"
  41. 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
  42. Fighting Words
    • US Supreme Court definition: words "by ther very utterance inflict injury or tend to incite immediate breach of peace"
    • Chaplinsky v. NH
  43. 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"
  44. 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"
  45. 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
  46. 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
  47. 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
  48. Reputation as item value
    to have libel, a person's reputation must be WRONGFULLY damaged
  49. 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"
  50. 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
  51. 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
  52. 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
  53. 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
  54. 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
  55. 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
  56. 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
  57. Fault--elements of libel
    • Must be proven to have a successful libel claim; 
    • Two types of fault: 
    • communicating with actual malice
    • communicating with negligence
  58. Definition of actual malice
    making a statement knowing it was false or with reckless disregard for its truth or falsity
  59. 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
  60. 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
  61. Defenses to libel
    • Fair report privilege
    • Fair comment and criticism 
    • opinion 
    • neutral reportage
    • wire service defense
  62. Defenses to libel
    • Innocent construction
    • Letters to the editor
    • Parody-Satire
  63. Defenses to libel p.2`
    • Single publication rule
    • libel proof plaintiff
    • single mistake rule
    • summary judgment
  64. Other defenses to libel
    • Statute of limitations
    • retractions
    • responsible reporting
  65. 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
  66. Fair comment and criticism
    by placing works in public domain, authors or creators are inviting comment and criticism
  67. 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
  68. 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
  69. Parody-satire
    • Language that is loose, figurative and hyperbolic
    • tends to negate the impression that a statement contains assertion of verifiable fact
  70. de minimus non curat lex
    the law does not concern itself with trifles
  71. defining an emotional distress claim
    a civil wrong that provides compensation for serious mental anguish directly caused by defendants conduct
  72. 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
  73. Two categories emotional distress claim
    • 1) intentional infliction of emotional distress
    • 2) negligent infliction of emotional distress
  74. Intentional Infliction of emotional distress
    • Defendant's conduct was 
    • extreme or outrageous
    • beyond the bounds of decency in civilized society
  75. 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
  76. Intentional infliction emotional distress, plaintiff must prove
    • Intentional or reckless action
    • defendant intended the harm 
    • OR
    • behaved in a reckless way; a way that a reasonable person would expect would cause harm 
    • public figures must prove actual malice:
  77. 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
  78. Physical harm
    • Plaintiff must show
    • defendant negligently published material 
    • physical harm was foreseable 
    • it was proximate cause of harm 
    • media violence lawsuits rarely succeed
  79. incitement: an alternative to proving physical harm
    • 1st amendment doesn't protect speech that incites harm 
    • brandengburg v. ohio
    • hess v. indiana
  80. The incitement test
    • Imminent lawless action
    • Likelihood of lawless acts
  81. CDA Protection
    Communications Decency Act protects web-service providers from claims related to third-party content
Card Set
Media Law Midterm
Media law presentation terms