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63 Cards in this Set
- Front
- Back
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Chaplinsky v. New Hampshire
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-Chaplinsky was a Jehovah’s Witness that was handing out pamphlets; was arrested and called the cop a “God-damned racketeer” and a “damned fascist”
-Was arrested for offensive speech and the conviction was upheld; Justice Murphy said that the First Amendment was two-tiered (worthless and worthwhile speech) and that narrowly defined categories of speech fell out of bounds of constitutional protection |
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“fighting words.”
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chaplinsky v.new hampshire
Terminiello v. Chicago Cohen v. California |
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" fighting words"
Chaplinsky v. New Hampshire |
Fighting words neither contributed to the expression of ideas nor possessed any “social value” in the search for the truth; provokes a breach of the peace
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Terminiello v. Chicago
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-Terminiello gave a speech to Christian Veterans; said offensive things against racial groups; caused a mass uprising and the police fined him for a violation of the peace ordinance of Illinois
-Justice Douglas reversed the conviction, saying that speech was protected by the First Amendment AND that the ordinance was unconstitutional Douglas says that the ordinance was overbroad and that, therefore, Terminiello could be not be convicted; gave fighting words a bit more freedom |
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Cohen v. California
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-Paul R. Cohen was arrested for wearing a jacket that said “Fuck the Draft” inside of a courtroom; his conviction was a violation of the California Penal Code, saying that he was disturbing the peace
-The court overturned the ruling, saying that the state may not declare the showing of a four-letter word |
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What do you understand by the term “Heckler’s Veto”?
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Loud, boisterous, and sometimes violent interference by members of an audience who oppose the views other speaker, thereby preventing the effective communication of the message. Feiner vs. NY
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How does " Heckler's veto" relate to the debate over freedom of expression?
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Limits the freedom of expression
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What is “worthless speech”? Examples?
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Has little or no social value as a step to truth and does not deserve protection; obscene or libelous language, fighting words, seditious libel
ex. ad for cocaine |
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What has SCOTUS meant when it has said that a statute or law is “overbroad”? Examples?
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Terminiello trial; statute worded so as to cover expression or conduct that is protected by the Constitution in order to “Get at” expression or conduct that is not otherwise protected
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How has the view of commercial speech as “protected speech” evolved?
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-Traditional view: commercial advertising is prone to exaggeration and falsehood; advertising is not essential to self-government
-Valentine v. Chrestensen: -N.Y. Times v. Sullivan -Bigelow v. Virginia |
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Valentine v. Chrestensen
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-1942, Christensen wanted to distributed ads for his submarine in NYC on the back of a handbill
-SC said that the streets could be used for the exercise of the freedom of communicating information and disseminating opinion, but not for purely commercial advertisement |
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N.Y. Times v. Sullivan
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Constitution protects political advertisement, as long as there is no intention of actual malice
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Bigelow v. Virginia
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-Bigelow (editor) published ads for abortion services
-Reversed conviction and removed truthful commercial speech from the unprotected speech category |
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What are the four provisions developed by the Supreme Court on the test for regulation of commercial expression?
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-Message must be truthful and concerning a lawful product or service
-Government interest in constraining the message must be legitimate and substantial -Regulation must directly advance the government interest asserted -Regulation must be no more extensive than needed (must not be overbroad) |
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What is the Federal Trade Commission’s relevance to a discussion of freedom of expression?
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-Works against deceptive advertising; monitors unfair or deceptive acts or practices in commerce
-Comprised of five commissions appointed by the president, approved by the senate and looks at puffery v. deception; pressures offending companies into stopping false or misleading advertising by launching a publicity campaign to call attention to dishonest messages; uses cease-and-desist orders (result in fines), affirmative disclosure orders, corrective advertising order to own up to company’s misinformation (Listerine), injunctions to stop deceptive advertising |
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What are the key points the FTC looks at in determining whether an ad is deceptive? How does the FTC distinguish between puffery and deception?
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-Bureau of Consumer Protection– Deals with false and deceptive advertising and other unfair trade practices
-The agency has defined deceptive advertising according to three key elements -Consumer characteristics: The audience for an advertisement is considered to be the “reasonable consumer,” a standard similar to the “reasonable person” in tort law -Probability of deception: There must be a likelihood that the advertisement taken as a whole will actually deceive the reasonable consumer -Significance of the deception: The deception must be significant enough to actually influence the reasonable consumer’s decision |
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puffery
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Puffery describes abstract claims and assertions of opinion that are difficult to test empiracally (m’m m’m good)
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Why was Near v. Minnesota an important decision in the freedom of expression debate?
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-Near (publisher of Saturday Press) printed anti-Semitic articles that accused public officials begin involved with gangsters
-Asked court to prohibit future issues -Declared unconstitutional; law could be used to stop articles about corruption and malfeasance by public officials -Promoted freedom of expression by dismissing the plea for prior restraint; only in EXTREME circumstances |
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What was the general view, supported by Supreme Court decisions, regarding film and prior restraint until the middle of the 20th Century?
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-Have been censored by government since beginning; believes that films have a social impact
-Mutual v. Ohio: 1915, SC unanimously declares film a commercial medium -Have had strict codes, some movies have been banned in the past, but since then the SC has taken the ability of prior restraint away (1960); needed a seal of approval, otherwise facing fines |
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What was the film industry’s self-policing method from the 1930s through the 1960s? How did that method work?
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Motion Picture Production (Hayes) Code was created as self-censorship to avoid government action; had a fine imposed against filmmakers if they did not have the seal of approval; codified objections in order to avoid gov’t punishment; no film shall be produced that will lower the moral standards of those who see it
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What is the significance of Burstyn v. Wilson?
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NY attempted to ban The Miracle, but SC rejected the “commercial speech” rationale that they attempted to use; said that expression through movies is protected under the First and Fourteenth Amendments, though it did NOT eliminate film review boards or prior restraint
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What is the significance of the debate over the Pentagon Papers?
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Ellsberg leaked the Pentagon Papers to the NY Times and Washington Post; government attempted to use courts as a method of prevention for the publication of damaging info; SC ruled per curiam that the government had not met the burden of proof for prior restraint
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Part 1) How have the First Amendment rights of the press clashed with the guarantees the Sixth Amendment makes to a fair trial?
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Sixth amendment guarantees that all citizens have the right to a speedy and public trial; prejudicial publicity and prior restraint, access to courtrooms by journalists, TV and cameras, and protection of sources and shield laws have clashed with the sixth amendment; thought the prejudicial publicity prevents from receiving a fair trial; SC began with Mad Dog Irving’s unfair trial, then Sam Sheppard, and resulted in a series of regulations on how judges should control prejudicial publicity and protect the defendant’s rights; issue is whether the case should remain open or closed (Richmond)
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What lasting impact did the trial of Bruno Hauptman have on press coverage of U.S. trials?
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For the Lindberg son’s trial, cameras in the courtroom caused ABA prohibition of cameras in the courtroom; in the 1970s, they started to allow cameras again (because they were smaller); all states allow cameras, but not video cameras
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What are shield laws?
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-Shield laws are laws that shield reporters from the law and from retaliation;
-What are the arguments for and against them? For: help preserve reporter’s credibility and serves public interest by providing information that they would not have had; against is who is a reporter? If reporters have information that is important and are not giving it, this becomes a negative |
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What do you understand by reporter’s confidentiality?
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Reporter’s confidentially is that journalists can protect sources as society benefits from reporting based on confidentiality; give information without divulging their source
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What was the significance of Branzburg v. Hayes regarding source confidentiality?
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-Asked for source confidentially and the courts said no
-How did Justice Potter Stewart’s minority opinion come to be the accepted opinion in issues of reporter confidentiality? |
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How did Justice Potter Stewart’s minority opinion come to be the accepted opinion in issues of reporter confidentiality?
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Potter Stewart’s minority opinion argued for qualified privilege of source confidentiality for journalists; three-part test: government must show that the reporter has information that is clearly relevant to a specific probable violation of the law, must show that the info cannot be obtained by less destructive means of First Amendment rights, must demonstrate a compelling and overriding interest in the information
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What is a FOIA? What does FOIA give us access to?
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Freedom of Information Act; allows any person to request records from the executive branch; does NOT cover congress, federal courts, state or local government, president, and immediate staff
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What do “Government in the Sunshine laws” guarantee?
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-1967, applies to gathering of two or more members of the same board to discuss some matter which could come before the board for action
-Requires that meetings of boards or commissions must be open to the public, requires that meetings of boards or commissions must be open to the public, reasonable notice of such meetings must be given, minutes must be taken |
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Why is the “Boston Commons case” remembered today?
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Government had legal title to parks, streets, public spaces; can control what goes on in those places as a homeowner would control his home; used in defense
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What made SCOTUS’s Hague v. CIO decision a landmark ruling?
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Mayor Hague used city ordinance requiring permit for assembly in public to stop labor organizers from speaking in Jersey City; created a closed city based on the Boston Common case
Courts ruled that public places be open for assembly, but does not explicitly reject the Boston Commons ruling; said this is unconstitutional; opened public places as forums for the first time |
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What is the compatible use rule?
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-Court said that the use of public spaces could be regulated, but not prohibited
-Privilege is not absolute and must be approved by community |
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What role did the suburb of Skokie, Illinois play in the freedom of expression debate?
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-Nazis tried to demonstrate in Jewish suburbs of Chicago
-Village officials enact ordinances designed to prevent them from doing so -Denied the Nazis from a permit and Nazis challenged the decision -SC declares the ordinance unconstitutional; they were not content neutral, established a permit with prior restraint on application; prohibits inciting racial or religious hatred was vague and overbroad |
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What is compelled speech?
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Forced speech; government makes you say it, even you don’t agree with it
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What is symbolic speech?
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Acts that express a message without words, such as burning a flag; decal on a window, saluting the flag, wearing a veil
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What is “speech plus”?
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Speech conjoined with conduct: picketing, protests, burning the flag, speaking over loudspeakers, burning draft cards
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SCOTUS has said that burning a draft card is not protected, symbolic speech, while burning the U.S. flag is. Do you understand the difference? Explain the thinking behind those decisions
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-Justice Brennan says to punish someone for communicating ideas critical of nationhood or national unity is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable
-Burning draft cards is government property, and therefore the governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms; speech interwoven with action may cause the expression involved to receive less protection under the First Amendment |
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What has been the logic behind the creation of copyright laws? (What is their purpose, according to the Constitution?)
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Copyright laws were used to promote the progress of science and useful arts, according to the US Constitution; provides protections for writings maps, charts, etc for 14 years, renewable once
Updated to include plays, photographs, engravings, paintings and drawings |
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How do copyright laws clash with the freedoms guaranteed by the First Amendment?
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Copyright laws clash with freedoms guaranteed by the First Amendment because they inhibit authors’ ability to publish information that the nation needs to know
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What steps have been taken to ease the tension between the two?
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Courts have allowed restrictions on the grantee and time, allowing all information to eventually fall into the public domain; ideas cannot be copyrighted; restrictions on freedom of speech clash with First Amendment
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What is fair use? What test do the courts use to determine fair use?
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A principle of copyright law that allows a limited amount of copyrighted material to be used without the permission of the author; used the Copyright Act of 1976’s test
- Purpose and character of use -Nature of the copyrighted work - Amount used in proportion to the whole copyrighted document - Effect of the use on the potential market |
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What does copyright law say about parodies?
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Campbell v. Acuff-Rose Music, Inc; Live Crew released a parody with only a few lines from the actual song in it; the owners sued for copyright infringement saying that the commercial nature of the song damaged the market value of the original
SC reversed the ruling, saying that it was necessary to copy some of the original in order to parodize the material Allows parodies to copy a bit of the original in order to create a new work |
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What do you understand by the term “public domain”?
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Access to the general public; entering the marketplace of ideas; ex) Shakespeare’s works
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What is the FCC?
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Independent federal regulatory agency; functions: licensing and regulation of licensees
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What is the rationale for the regulations imposed on over-the-air broadcasting?
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To protect listeners, investors, scarcity
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What are some of the limitations imposed on over-the-air broadcasters that are not imposed on print media?
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-Amount of licenses available
-Equal access must be available for political candidates -More commercialized than print media because they buy slots and compete for them -Indecent material, lottery information, broadcast hoaxes |
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Some of the regulations imposed on over-the-air broadcasting are not imposed on cable TV providers. Why? What have the courts had to say about that?
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-Cable does not use radio frequencies, therefore they are not subject to the same regulations
-Time frame restrictions are not imposed on cable -Cable pays a franchise fee -Regulated under 1984 Communications Act: franchise renewal, rate setting, cable ownership -Cruz v. Ferre: since cable does not intrude into the home, the restrictions are less |
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What are broadcasting licenses?
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Consider temporary trustees of the public airwaves; give networks licenses to air (limited licenses available); good for eight years; renewable automatically if you did not violate any laws
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What is the importance of Pacifica Foundation v. FCC?
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-NY station airs George Carlin’s “Filthy Words”
-Anticensorship sections of the Communications Act did not deny the FCC the power to review broadcast content and impose sanctions if content is found “obscene, indecent or profane” -Can impose restrictions if it is offensive or pervasive |
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Why do we remember the case Cruz v. Ferre?
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US circuit court set out a rationale for distinguishing between broadcasting and cable (cablevision does not intrude into the home; subscriber must elect to have the service delivered; makes second election when he decides to purchase “extra” services); parents can manage cable more easily than broadcast
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part 1:How has Congress tried to regulate cyberporn, and how has the Supreme Court responded?
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Telecommunications Act (CDA) of 1996: establishes restrictions on Internet content (obscenity, child pornography, indecency, discussion of abortion services); Reno v. ACLU: invalidates CDA provision on transmitting indecent materials that would be available to minors (indecency is not defined, therefore the law is vague, required age screening is impossible; Internet was entitled to the highest degree of First Amendment protection
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What does Section 230 of the Communications Decency Act say, and why is it important?
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Providers are not to be deemed the “publisher” of information that is provided by someone else
Libel: individual, ISPs |
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What are the basic rules governing copyright on the Internet? According to the Online Copyright Infringement Liability Limitation Act, who is responsible for copyright violations?
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ISPs are not liable for copyright infringement when they are acting as neutral conduits; blame assigned to individuals who violate copyrights; “notice and takedown” provision requires ISPs to respond to remove or disable access to copyrighted materials
Copyright violations are assigned to individuals who violate copyrights |
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Acquired virtue: based on character
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-Moral excellence is a mean between two kinds of badness, one of excess and one of defect
-Goal is not determining what conduct should be in a particular situation, but the development of a virtuous individual -Good manners and rituals lead to ethical behavior, concern for others is the core of all virtues -Negative Golden Rule |
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Deontological: deon (duty), absolutist/legalistic, categorical imperative, based on behavior and priniciples: Do what you have to do, don’t worry about the after effects
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Act as if the maxim of your action were to become through your will a general natural law; stresses self-sacrifice v. quest for happiness
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Teleological: telos (end, purpose), consequence theories, greatest good/pleasure to the greatest number, based on behavior (Dark Knight); before you make the decision, you think about the consequences
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-Consequence-based
-The person trying to decide what to do attempts to predict what the consequences of the choice will be -The goal is to choose the action that will bring the most good to the party the actor deems most important -Relative -Suggests that we first calculate the consequences of our options—how would they benefit or harm the lives of those affected—and choose the alternative that maximizes value or minimizes loss |
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Part 2) Effects of first amendment
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To deal with prior restraint, SC has limited the used gag orders (prohibits the press to publish info about the case until the trial is over), and restraining orders (prohibiting participants of the court to speak to the press); gag orders can only be used in the threat of clear and present danger; shield laws are designed to protect reporters when they grant confidentiality to preserve reporter’s credibility
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denotological
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-If you do something, you have to do for everyone
-Decisions are made based on a prior -Don’t worry about consequences, just what you are supposed to do -Absolutist, legalistic -Principle-oriented -Immanuel Kant: only actions taken out of self-imposed duty can be ethical; moral behavior is measured by living up to standards of conduct because of the consequences that might result, no person should be treated as a means to an end |
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acquired virtue: based on character
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-Moral virtues result from habits
-Behavior reflects our inner disposition -Ethical behavior is the balance between doing injustice and having injustice done to you |
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teleological
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-Produce the greatest possible balance of good over evil and to distribute this as widely as possible
-Success oriented, competitive, expedient; manipulation of power; considers whether the action is effective or ineffective, not whether it is ethical or unethical -Ayn Rand: make choices based on your own benefit -Macchiavelli: manipulation of power to gain respect (who cares about everyone else) |
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part 2: cyberporn
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Child Online Protection Act of 1998: outlaws speech harmful to minors using language based on definition of obscenity set out in Miller v. CA; Children’s Internet Protection Act of 2000: requires libraries to install filtering software as a condition for receiving federal funding (unconstitutional)
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part 2: Cohen vs. California
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-Said that CA could not censor their citizens to make a civil society
-Said that there is no real line between vulgarities and heightened emotion -Fighting words are protected under the First Amendment because there is no law that can be made to prohibit certain wordscreates a suppression of ideas |
