Mass Comm Law Exam #1

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Three Purposes of Law in Society

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1. Bring a measure of order to a chaotic society
2. To regulate relations between people
3. To adjust their conflicting interests

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Isegoria

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The right of all citizens in good standing to address the civic assembling before a binding decision is made.

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Parrhesia

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"Frank speech" relates to the risk

A person is responsible for his/her speech - everyone takes a risk every time they make a public statement

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John Milton

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Puritan who wanted to get info out to society about what he disagreed with.

Called his speech the "Aeropagitica," based on the hill Aeropagus where Socrates argued for his life and free expression

Idea that a self-righting process would occur through open debate of controversial issues, so censorship was not necessary.

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Aeropogitica: Four Points

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1. Prior Restraint is a defensive tool to stop ideas dangerous to the status quo
2. Prior Restraint weakens character - you can't fully define something unless you know what the opposition is
3. Prior restraint does not work - the more something is censored, the more people will want to investigate it.
4. Prior restraint discourages learning and the search for the truth.

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John Locke

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"Social Contract Theory"

The government serves the people, not the other way around.

Letters of Toleration:
-It doesn't matter what you do to someone, you can't change what they believe on the inside
-"it is one thing to persuade, another to command"

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Cato

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wrote "Letters of Tolerance" about freedom of religion

Letter 15: "Of Freedom of Speech; that the same is inseparable from Public Liberty"
-people have the right to criticize bad government
-to do public mischief is only the prerogative of tyranny
-Freedom of speech is the great bulwark of society

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John Stuart Mill

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"Marketplace of Ideas" - 4 Reasons to Protect Free Expression

1. An opinion may contain truth - if you silence that opinion, the truth may be lost.
2. A particle of truth may exist within a wrong opinion. If you silence that wrong opinion, you are likely to lose that particle of truth.
3. Even if an accepted opinion is the truth, the public tends to hold it not on rational grounds but as a prejudice, unless forced to defend it.
4. A commonly held opinion loses its vitality and its effect on conduct and character if it is not contested from time to time.

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Thomas I. Emerson

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"The system of Free Expression" (Democracy) - 1970

1. Participation in self-government
2. A free and unfettered marketplace of ideas is the best way to conduct a search for truth.
3. The opportunity free expression provides for individuals to say what's on their minds and express their creativity, themselves, and who they are through art, science, etc.
-"Be all you can be"
-self-realization
4. Catharsis, safety valve theory - it helps maintain a balance in society between stability and change
-society is made aware of problems that need to be addressed

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Rodney Smolla's "Six Principles of Free Expression"

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1. Neutrality Principle
2. Emotion Principle
3. Symbolism Principle
4. Harms Principle
a.physical
b.relational
c.reactive
5. Causation Principle
6. Precision Principle

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5 Sources of American Law

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1. Common Law
2. Equity Law
3. Statutory Law
4. Constitutional Law
5. Administrative Law

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Common Law

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Principles and rules of law that derive their authority not from legislation, but from common usage and custom
-Based on precedent, "stare decisis," "let the decision stand"

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Equity Law

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Courts are empowered to decide cases on the basis of equity or fairness and are not bound by the rigid precedents that exist in common law.

Rules are more flexible. You can create new laws and anticipate under equity law. Example: Restraining Order

More power is given to the judge.

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Statutory Law

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Larger scale - doesn't deal with individual, case-by-case law.

It anticipates problems.

Common and Equity assess incidents after they happen, while statutory law predicts.

All criminal laws are statutory.

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Constitutional Law

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The supreme law of the land. Everything answers to the U.S. Federal Constitution, even state constitutions.

It is powerful because the people all have a say in establishing/changing the constitution. (2/3 vote needed in congress and 3/4 vote of all states needed to pass change.)

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Administrative Law

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The executive branch of government.

The president can make an executive order that becomes a law.

Administrating Agencies can too. Experts in the technical area create the laws for that area (FCC, IRS, SEC)

Empowered by congress.

You can challenge any regulatory law - the first stop to challenging is the agency.

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Precedent

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An established rule or law set by a previous case. Courts should follow precedent when it is useable and possible.

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How to Use/Avoid Precedent

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1. Accept/Follow
2. Modify/Update: Society has changed and so previous law must be modified to make it more appropriate to today.
3. Distinguish: Specify the facts. Make the argument that this case is different from the other case.
4. Overrule: Come out and say the past precedent was wrong and is reversed.

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Distinction of Facts vs. The Law

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Facts are established in the trial/lower courts and the appellate courts accept the lower court's factual findings and then apply the law.

Appellate courts do not do any fact-finding. If they don't have enough info/facts to determine the law, they send it back to the lower courts to find more facts.

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Distinction of State Court vs. Federal Court

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Each of the states and DC has their own court system.

US supreme court is not binding on state laws. State laws are specific to their own states.

Exception: If these states are found to be in conflict with the U.S. constitution the case will be determined by the U.S. supreme court.

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Judicial Review

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Power of the court to declare a law void if it violates the constitution. Not often used.

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Statutory Construction

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Judges responsibility to determine the "lawmakers intent" when a statute is challenged.

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Alien and Sedition Acts of 1798

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Forbade false, scandalous and malicious publications against U.S. Government, Congress, the President, and restrained those who sought to stir up sedition or urged resistance to federal laws.

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Espionage Act of 1917

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During the time of WWI, freedom of expression was limited. The Espionage Act said it was a crime to interfere with the war effort, to attempt to cause disloyalty or refusal of duty in the armed forces, or willfully obstruct the recruiting of the enlistment service. Couldn't criticize involvement in WWI.

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Sedition act of 1918

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Amendment to the Espionage Act.

Made it a crime to attempt to obstruct the recruiting service. Also criminal to print, write, or publish disloyal/profane language that was intended to cause contempt of the government, the constitution, the flag or the uniform of the armed forces.

Unlawful to criticize U.S. Government

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Smith Act of 1940 (Alien Registration Act)

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Made it a crime to advocate the violent overthrow of the government. To conspire, organize or even be a member of a group that advocates government overthrow.

Aimed at Communist Parties in the U.S.

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Five Freedoms of Expression in the 1st Amendment

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1. Freedom to establish and exercise religion
2. Freedom of speech
3. Freedom of the press
4. The right to assemble
5. The right to petition the government

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7 legal theories/strategies to interpret or apply

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1. Absolutist - no law should abridge free speech, no exception

2. Ad Hoc Balancing - Rights can conflict, courts must balance them

3. Preferred Balancing - giving one freedom priority over all others. Assumed Free Speech protection.

4. Miekle Johnian Theory: Free expression must be protected always. We cannot conduct self-governance without free speech. Public v. Private Speech: Private speech can be regulated.

5. Marketplace of Ideas - truth arises when all speech is free, open and competitive.

6. Access Theory - Everybody should have equal access to the media to express their speech
-didn't really work with Supreme Court: If a private newspaper doesn't want to publish your story, they don't have to.

7. Self-realization - speech is valuable to the person expressing it, regardless of its impact on others

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Bad Tendency/Indirect Causation/Presumptive Intent

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A way to settle criminal law.

If the court thought you had the intent to do an illegal activity, even if you didn't, it is still illegal and you could be convicted.

No burden of proof.

Not used anymore - dangerous because any speech can be shut down for any presumption.

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Schenk . U.S.

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clear and present danger with no burden of proof = bad tendency thinking

Members of socialist party distributed 15,000 anti-war pamphlets. Schenk was tried and prosecuted for violating the Espionage Act.

Justice Holmes said it was a matter of proximity and degree; In ordinary times it might have been okay, but the country was at war and he used the U.S. mail as a tool of distribution.

Holmes later changed his mind saying the question is whether the words used create a "clear and present danger." 1st Amendment does not protect against speech encouraging insubordination.

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Whitney v. California

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Clear and Imminent Danger with burden of proof

Whitney attended meetings and was a member of a Communist Labor Party who wanted to take down gov. with violent means.

She was building of breaking a CA law, but never raised 1st amendment.

Brandise wrote concurring opinion saying that had she raised the 1st amendment, her conviction may not have been constitutional.

Her advocacy was proven because she was a member of the party.

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Dennis v. U.S.

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clear and probably danger with no burden of proof = bad tendency thinking

11 Communist party members convicted for advocating the violent overthrow of the government.

Defendants said this small number of Communists surely didn't rais a "clear and present danger" to the whole nation.

Chief Justice used another variation: clear and probable danger without burden of proof

Courts opinion and interpretation - Dennis was convicted

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Yates v. U.S.

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advocacy of abstract doctrine v. advocacy of specific plan of illegal action with burden of proof

1st time U.S. said proof was necessary

Was speech advocating specific illegal action, or just an abstract idea

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Brandenburg v. Ohio

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Advocacy of ideas v. proven intent and proven incitement of unlawful conduct.

Causation Principle.

4 Prongs (All must be met to shut down speech)
1. Intent: Did the speaker intent to cause the unlawful action?
2. Illegal Activity: Did the speech harm or break a criminal law?
3. Imminence: Close time period between speech and unlawful activity
4. Likelihood: How probable is it that the speech caused the harm/action?

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Prior Restraint

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Prepublication censorship of certain objectionable materials.

1st amendment means there is no prior restraint except in extreme times like war, national security issues, or if speech incites unlawful activity

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Near v. Minnesota

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tried to restrain printing of content that violated state staute of "public nuisance"

Only in specific instances can it be prior restrained - exception, not rule

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NY Times v. Sullivan (Pentagon Papers Case)

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The paper tried to publish controversial government info in a public paper.

It was allowed because the government could not fully support that it would harm the nation.

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U.S. v. Bell

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the court upheld an injunction barring Bell from promoting ad selling unlawful tax advice on the internet

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Hazelwood v. Kuhlmeier

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Principal censored school paper by removing 2 pages that discussed teen pregnancy on the grounds of privacy and editorial balance.

U.S. Supreme Court ruled that the censorship was permissible because it was a school-sponsored publication and had legitimate pedagogical concerns

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Test for Time, Place, and Manner

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1. Rules must be content neutral - can't pick and choose what is allowable
2. Cannot be a complete ban on the communication - there must be ample alternative means of communicating
3. Rules must be justified by substantial state interest - must be obvious it's affecting people, and the state must provide legal reasoning and prove why the speech should be shut down
4. rules must be narrowly tailored - does not shut down any more speech than the exact speech in question.

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Traditional Public Forum

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Public places that have been devoted to assembly and speeches.

Example: street corners, public parks, sidewalks (highest level of 1st amendment protection

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Designated Public Forum

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Places created by the government to be used for expressive activities

Example: city-owned auditoriums, meeting hall

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Public Property that is not a Public Forum

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government has a lot of power to regulate speech in these areas

example: military base, airport terminals, prison, mailbox

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Hate Speech "Fighting Words"

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Words that are written or spoken that attack individuals or groups because of their race, ethnicity, religion, gender, or sexual orientation.

"Words spoken in a face-to-face confrontation that are likely to create words that tend to incite an immediate breach of peace"

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Gitlow v. New York

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Gitlow published left-wing manifesto, advocating overthrow of NY government.

Incorporation Doctrine came out of this:
All amendments apply at the federal and state level

Although Gitlow violated state law, he could still use federal law (1st amendment) as defense

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Rice v. Paladin End Inc.

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Publication of "Hitman" was NOT allowed because the writers intent was to help people commit and conceal murder

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Chaplinsky v. New Hampshire (1942)

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A Jehovah's Witness called a city marshal a "damn fascist"

He was prosecuted for violating a city ordinance against offensive speech and name-calling.

He called on 1st amendment rights, but was still convicted because his words were intended to "breach the peace" and did not express major ideas

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RAV vs. St. Paul

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Struck down city ordinance that banned cross burning because it was too broad (neutrality standard)