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58 Cards in this Set
- Front
- Back
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defamation by implication
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-Injuring reputation through suggestion, not directly.
-Combo of pic and headline -Can be in printed stories, broad cast programs, internet, ads |
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defamation
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injury to reputation- what others think about the plaintiff
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Proving defamation in court
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-A substantial and respectable minority of the community think less of the plaintiff or shun or show hatred for the plaintiff
-Plaintiff is hurt in her job or profession or is accused of serious crime |
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Publication
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-Seen/heard by third party
-How to prove in court -Courts assume at least1 party has seen/heard story in mass medium |
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Republication
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Publishing on internet
-Libel applies to internet -Person originating defamatory material responsible for it -ISP's, local tv affiliates and online boards are not republishers |
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Identification
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-Story is "of and concerning" the plaintiff
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Prove Identification in court
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-At least 1 person must REASONABLY believe material was of and concerning plaintiff
-Identification of group member that wasn't used -Fewer than 25 ppl- say it stuck -Over 100- No way |
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Libel is:
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1. A statement of fact
2. That is published 3. is of and concerning the plaintiff 4. is defamatory 5. is the result of fault by the defendant 6. is false 7. that causes actual or presumed injury and is not absolutely or conditionally privileged |
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Strict Liability libel
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-Before 1964 a libel plaintiff could win proving a false statement that was published and injured reputation
-Fault by defendant was not fact |
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libel and Slander
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Both categories of Defamation
-Torts harm done by one to another -ruining someone's reputation -Slander is something that is said -Libel more serious |
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Sources of Law
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-US Constitution, then
-US federal laws, can't take precedence over Constitution -State constitutions -State laws -City, county local laws, common laws |
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State and federal courts
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-Each state has its own court system
-Federal system and all the state systems have both trial and appellate courts |
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Trial courts
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-Judge, lawyers, parties or defendant, jury, evidence, witnesses, cross-examination
-Trial courts are called district courts in federal system |
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Appellate Courts
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-Judges and lawyers-make decisions based on law
-No parties, jury, witnesses -Mid-level and Supreme Court -Mid-level courts must take an appeal. Gives case two bites at the apple -This means if you lose case you can appeal to this court. -Supreme Courts don't ahve to take appeals |
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State or federal
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-A dispute involving a STATE constitution or STATE law goes to courts in that STATE
-A dispute involving FEDERAL constitution or a FEDERAL law goes to the FEDERAL courts |
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Courts follow preceden
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A judge will follow previously decided cases with facts similar to the case before the judge
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Mandatory precedent
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-Judge MUST follow decision of higher court in same court system (if facts are similar)
-All state and federal courts must follow US Supreme Court decisions |
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Permissive precedent
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-Judge may follow decision (if facts are similar) of ANY other court
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When courts don't follow precedent
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-Court may DISTINGUISH the case before it from a previously decided case
-Usually based on different facts in the two cases -Court may OVERRULE its own previous decision- Says earlier decision was wrong. Only done by Supreme Court. Rarely occurs |
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Criminal law
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-Assault and battery, homicide, theft
-Govt brings criminal charges -Laws must be clearly written -Jury uses: Beyond reasonable doubt |
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Civil law
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-Standard jury uses: Preponderance of the evidence
-E.g, landlord and tenant, or contracts, or corporations -It's harm done by one person to another -Includes defamation and invasion of privacy |
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Appellant and appellee
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-Appellant- appeals a decision
-Appellee- gets dragged to appellate court |
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Summary judgment
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-Both sides agree on the facts, or
-Judge looks at facts in least favorable light for party asking for summary judge -Judge applies law to facts and makes a ruling -Just judge and lawyer |
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Freedom of expression
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-Expression means speech, print, art and dance
-Not all speech is free |
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Symbolic Speech
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-Action by itself may be speech
-No words, just action -Courts consider it speech, not action -Communicative content -Sit-ins in the 60's |
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The First Amendment
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-Congress shall make no law repecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
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Reasons to limit government regulation
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-If a law is VAGUE, a court will reject it
-A law is vague if an average person doesn't know what is legal or illegal -If a law is OVERBROAD, a court will reject it -A law is overbroad if it restricts more speech than constitutionally allowed -Particularly if law limits speech |
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Prior restraint
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-Government censorship
-Order to stop publication before expression occurs -Presumptively unconstitutional -Applies only to GOVERNMENT |
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Near vs. Minnesota
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Rule prohibiting "malicious, scandalous, defamatory publications"
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Prior restraint is OK if:
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-National security is at stake
-Examples- -Location of troops during war -Location of ships during war -Obscenity -Incitement to violence -Fighting words -Words insulting and degrading ppl based on race, gender, religion -Words must cause a breach of peace |
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Highest Government Interest
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-Compelling Interest
-To protect public health, safety, or welfare at a VERY HIGH LEVEL -Highest level of concern for imposing speech |
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Intermediate Government Interest
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-Substantial interest
-Important (not compelling) government interest |
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Rational Government Interest
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Can't be an arbitrary interest
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Strict scrutiny
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-The Supreme Court has said content-based laws are constitutional only if they pass strict scrutiny
-To survive a strict scrutiny review a law must: be necessary, and use the least restrictive means to advance a compelling government interest |
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Content-based
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-If government restriction is based on speech content then,
-Courts apply strict scrutiny -Govt must show a compelling interest for restricting speech and be the most narrowly drawn regulation possible |
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Public Forums
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-If on government property, the speaker may or may not have First Amendment protection
-Government property is called a "public forum" |
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Traditional Public forum
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-Public parks, public sidewalks, public streets
-Speech is protected |
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Designated public forum
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-Government says free speech is ok
-Government designates property as a public forum -E.g., city owned-auditorium |
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Non-public forum
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-Speech is protected only if and when government allows speech
-E.g., military base, public library, public buildings |
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Content-neutral
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-If the government restriction is NOT based on speech content
-Courts apply intermediate scrutiny -Government must have a SUBSTANTIAL interest -And allow a reasonable alternative for expression |
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Highest Government Interest
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-Compelling Interest
-To protect public health, safety, or welfare at a VERY HIGH LEVEL -Highest level of concern for imposing speech |
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Intermediate Government Interest
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-Substantial interest
-Important (not compelling) government interest |
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Rational Government Interest
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Can't be an arbitrary interest
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Strict scrutiny
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-The Supreme Court has said content-based laws are constitutional only if they pass strict scrutiny
-To survive a strict scrutiny review a law must: be necessary, and use the least restrictive means to advance a compelling government interest |
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Content-based
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-If government restriction is based on speech content then,
-Courts apply strict scrutiny -Govt must show a compelling interest for restricting speech and be the most narrowly drawn regulation possible |
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Public Forums
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-If on government property, the speaker may or may not have First Amendment protection
-Government property is called a "public forum" |
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Traditional Public forum
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-Public parks, public sidewalks, public streets,
-Speech is protected |
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Designated public forum
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-Government says free speech is ok
-Government designates property as a public forum -E.g., city owned-auditorium -UMC fountain |
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Non-public forum
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-Speech is protected only if and when government allows speech
-E.g., military base, public library, public buildings. |
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Content-neutral
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-If the government restriction is NOT based on speech content
-Courts apply intermediate scrutiny -Government must have a SUBSTANTIAL interest -And allow a reasonable alternative for expression |
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Time, Place and Manner Restrictions
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-One form of content-neutral restriction is time, place and manner restrictions
-Limiting when, where and/or how communication happens -Parade for red sox season starting at 5 pm on friday afternoon at folsom and arapahoe. NO -Too busy, so there will be a reasonable alternative at 10 am Saturday morning that will allow this -Another form of content-neutral restriction is based on secondary effects -Government concerned with effects speech may cause, not with speech itself |
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Compelled Speech
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-The first Amendment protects against the government forcing a person to speak
-E.g., pledge of allegiance, license plate, parade |
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Viewpoint regulation
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-Govt can't regulate viewpoint any more than it can regulate content
-Limiting one side of argument, but allowing other sides -Courts apply strict scrutiny because of the speech |
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Indirect regulation
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-No direct governmental limit on speech
-But government allows speech regulations -E.g., hostile audience -It's content regulation, so courts apply strict scrutiny |
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Speech with limited protection
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Expression limited under certain circumstances
-For example -Broadcast -Commercial speech -Indecent (but not obscene) |
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Unprotected speech
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Clear and present danger
-Advocacy- I am really urging something to happen -Directed to inciting or producing -Imminent lawless action -And is likely to cause that action -Speech causing harm to others -Blackmail -Extortion -Obscenity -Child pornography -Perjury -Fighting words |
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Speech with FULL protection
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-All speech not "unprotected" or with limited protection
-Political expression often said to have most protection -But ALL expression may be limited in some ways-- public forums, prior restraint, etc |
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speech and content
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-Is it speech the government wants to regulate?
-If it isn't speech, but only pure conduct: -The conduct has NO First Amendment protection -Government only needs to prove it has a rational interest in regulating the conduct -But if it is speech the government regulates... -If speech is combined with conduct, but government's interest is in the conduct and not the speech -The speech may be limited to punish the conduct |
