Comm Law Final Exam Pt 1

Front 1

types of damages

Back 1

general: compensates losses incurred without specific dollar amount
special: provable out-of-pocket monetary losses
actual/compensatory: provable losses (general & special)
presumed: damages assumed without proof
punitive: intended as punishment

Front 2

John Milton

Back 2

author of Aeropagitica (1644)
advocated marketplace of ideas
believed true ideas would prevail over false

Front 3

John Locke

Back 3

developed social contract theory
government were servants to people
men are endowed with natural rights to life, liberty, and property

Front 4

John Stuart Mill

Back 4

author of On Liberty (1859)
press defends against tyrannical government
opinions may contain truth, which may be lost
opinions may contain a particle of truth, which may be lost
public tends to hold truths as prejudices, not rationales
common opinions lose vitality over time if not challenged

Front 5

Gitlow v. New York (1925)

Back 5

incorporation doctrine: Fourteenth Amendment prohibits states from infringing free speech
defined scope of First Amendment’s protection of free speech
almost every provision of the BoR applies to both the federal government and the states

Front 6

Brandenburg v. Ohio (1969)

Back 6

government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action
Brandenburg test (imminent lawless action test): intent, imminence, and likelihood

Front 7

Schenck v. U.S. (1919)

Back 7

rejected socialists' rights to circulate anti-draft pamphlets—words create a "clear and present danger"
clear and present danger test: to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly

Front 8

Near v. Minnesota (1931)

Back 8

law that targets newspapers with “malicious, scandalous, and defamatory” content violates the First Amendment
Supreme Court decided that censorship is unconstitutional except in rare cases (such as Schenck v. U.S.)

Front 9

Chaplinsky v. New Hampshire (1942)

Back 9

fighting words doctrine: speech likely to cause a fight is not protected
certain “well-defined and narrowly limited” categories of speech fall outside the bounds of constitutional protection
to be protected words must contribute to the expression of ideas or possess “social value” in the search for the truth

Front 10

Cohen v. California (1971)

Back 10

states cannot censor their citizens in order to make a “civil” society
recognizes difficult line between harmless heightened emotion and vulgarity
people bringing passion and vulgarity to politics is simply a side effect of a free exchange of ideas

Front 11

New York Times Co. v. U.S. (1971)

Back 11

government failed to prove that Pentagon Papers would endanger national security sufficiently
no definitive victory for the press

Front 12

U.S. v. O'Brien (1968)

Back 12

was not protected speech because he was breaking a different law
First Amendment rights were not being violated
intermediate v. scrutiny

Front 13

Attorney General v. John Peter Zenger (1735)

Back 13

Andrew Hamilton urged jury to decide for themselves whether statements in question were actually true (use truth as defense for libel)
established no legal precedent

Front 14

Feiner v. New York (1951)

Back 14

college student arrested for inflammatory speech
First Amendment rights were not violated because he was arrested when police thought a riot might occur
Heckler's veto: speech is suppressed to prevent certain reaction

Front 15

Texas v. Johnson (1989)

Back 15

Johnson burned flag outside RNC in protest
Court ruled flag desecration is protected speech

Front 16

absolutism theory

Back 16

Miami Herald v. Tornillo (1974), which tested the Florida right-of-reply law, 9-0, teaches that the First Amendment does not require fair and responsible speech and that the right-of-reply law was unconstitutional

Front 17

preferred position theory

Back 17

in spite of false elements in an ad criticizing an Alabama police official, the New York Times v. Sullivan court (1963) preferred, 9-0, the First Amendment protection of the press when they criticize public officials

Front 18

marketplace of ideas theory

Back 18

R.A.V. v. St. Paul (1992) dealt with a ban on hate speech by a St. Paul ordinance
Court ruled, 9-0, “The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content”
marketplace of ideas can handle this truth-falsehood tournament

Front 19

political speech

Back 19

Papish v. Board of Curators of the University of Missouri et al. (1973) 6-3 majority applied this theory to reverse the 8th U.S. Circuit, which had upheld the university’s right to expel a student for distributing a campus newspaper with a political cartoon of a policeman raping the Statue of Liberty and the Goddess of Justice

Front 20

religious speech theory

Back 20

Church of Lukumi Babalu Aye v. Hialeah (1993), 9-0, taught that animal sacrifice cannot be banned if it is a tenet of a church’s beliefs
“The Free Exercise Clause protects against governmental hostility which is masked as well as overt”

Front 21

balancing theory

Back 21

Marsh v. Alabama (1946) balanced First Amendment rights against private property rights, and the court voted, 5-3, that Marsh’s press and religion rights outweighed property rights of a company that owned the town of Chickasaw

Front 22

speech v. action theory

Back 22

United States v. O’Brien (1968) teaches, 7-1, that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms”

Front 23

forum theory

Back 23

Marsh v. Alabama (1946) held that a company-owned town was the functional equivalent of a public municipality
Cities that open public forums cannot deny First Amendment access to these forums

Front 24

access theory

Back 24

Miami Herald v. Tornillo (1974), 9-0, invalidated a Florida right-of-access to newspapers law
"press responsibility is not mandated by the Constitution"

Front 25

14th Amendment theory

Back 25

Gitlow v. New York (1925) permits Supreme Court to use the 14th Amendment as a door to enter and weigh issues of constitutionality of laws of the individual states