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47 Cards in this Set
- Front
- Back
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Original Intent- (originalism) |
the constitution is a binding contract to be followed (Justice Clarence Thomas; Antonio Scalia; Alito) |
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Interpretive |
the constitution should be interpreted in light of societal changes (i.e. voting rights). |
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Absolutist Theory |
The First Amendment presents an absolute or complete barrier to government censorship. |
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Prior Restraint |
Punishing material before publication Pre publication censorship that forbids publication or broadcast of certain objectionablematerial. |
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Alien and Sedition Acts |
Made it a crime to publish "false, scandalous, and malicious writings" that might causecontempt for the federal government, it's officials, or other official acts. |
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FIRST AMENDMENT |
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of 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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NY Times v. Sullivan Facts |
Facts: alleged that the arrest of Rev. Martin luther King Jr for perjury in Alabama was a part of a campaign to destroy his efforts to integrate public facilities. -Sullivan filed a libel action against the newspaper -Ala law didn't have to prove harm |
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NY Times v. Sullivan Question |
Did Alabama’s Libel law (not requiring Sullivan to prove harm) infringe on the First Amendment’s freedom of speech and freedom of press protections? |
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NY Times v. Sullivan Holding |
The first amendment protects the publication of all statements, even flase ones about the conduct of public officials EXCEPT when they are made with actual malice. Sullivan Lost. |
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Actual Malice |
1. Knowledge that they are false 2.Reckless disregard for the truth |
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Strict Scrutiny |
Requires thegovernment to prove that it has compelling interest (an interest of the highest order) inregulating the speech at issue Must be narrowly tailored |
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Abrahms v. US (1919) |
Leaflets were thrown that denounced the US support in the Russian RevolutionConvicted for inciting resistance and curtail production of war material Question: Does the Espionage Act, in this case, violate the free speech clause of the first Amendment? Holding: Amendments are constitutional, they were inciting violence |
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Gitlow v. NY (1925) |
Gitlow published the left wing manifesto which advocated the violent overthrow of the US Government, convicted under a NY criminal anarchy law The Supreme Court affirmed conviction but applied the Doctrine of Incorporation |
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The Doctrine of Incorporation |
An Individual cannot be denied rights without due process of the law (combines the 1st and 14th Amendment) This also applied to the states not just the federal government, Bad Tendency Test is also still applied |
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Bad Tendency Test |
If the expression of speech incited violence |
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The Smith Act (1940) |
Made is a crime to advocate violent overthrow of the Government |
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Brandenburg V. Ohio |
KKK leader was convicted for violation of an Ohio law, advocating for illegal action Question: Does Ohio law prohibiting speech violate rights? Holding: Ohio violated speech, created the Brandenburg Test |
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Brandenburg Test: |
1. Incites lawless action 2. Imminent danger 3. Lawless action is advocated 4. Likely it will be carried out |
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Near v. Minnesota (1931) |
Jay Near published The Saturday Press targeting Catholics, Jews, Blacks, and labor unionsConvicted under “public Nuisance Law” Question: does Minnesota’s Gag law violate free speech Holding: Cannot prohibit publication in advanced |
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Tinker v. De Mois (1969) |
Public school students violated a school policy and wore black arm bands to school to protest the war in Vietnam.They challenged their suspension on the grounds of the 1st amendment SC Question- Is the arm band symbolic speech?Holding- Yes, it has 1st Amendment right protection |
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The Tinker Standard |
Students do not lose 1st amendment rights in school house gates. They have a right to express opinions without materially or substantially interfering in school operations. |
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Bethel School District v. Fraser (1986) |
Used sexual metaphors in his speech to nominate a student for electionsHe interrupted the operations of the school Question- Can the 1st Amendment right stop lewd language? Holding- No, school is able to restrict vulgar and offensive language. |
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Hazelwood School District v. Kuhlmeier (1988) |
The Prinicpal deleted the articles without informing the student jounralsits Question- Were the 1st Amendment rights violated when articles were deleted Holding-No, school may regulate school-sponsored news as long as the censorship is reasonably related.Speaks only to school-sponsored publications |
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3 Kinds or Public School Publication |
-school-sponsored (has advisor, uses school name, serves as a tool to teach knowledge) student-contracted (produced on school campus as part of an extracurricular activity) student newspaper produced and distributed off campus |
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Symbolic Speech Questions |
Does it send a message? Is the message understandable? |
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Morse v. Frederick (2007) |
The Olympic torch comes by school and the students are permitted to stand outside and watchMakes a sign that states “Bong Hits 4 Jesus” Students are suspended for promoting illegal drug useFrederick sued for a Free Speech violation Question- Can the school prohibit promotion of illicit drugs at school sponsored events? Holding- Yes Justice Stevens thinks this is all nonsense |
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Problems for college journalists |
Access to information |
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Basic Guidelines for College Publications |
-legit reasons school sponsored-public forum-editorial control-age of speaker/audience |
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FREEDOM OF INFORMATION ACT (FOIA) (1966) |
Concerned with access to records of federal executive agencies |
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ROBERSON v. ROCHESTER Folding Box Co.(1902) |
Woman gets published in advertisement without consentNY legislation passes the country’s first statutory privacy law-written consent to use any living person’s name for advertising purposes is needed. |
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LIBEL |
Protected from false Statements |
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Divided Invasion of Privacy into 4 Separate laws |
Tort of Intrusion Tort of Appropriation False Light Tort Publication of Private Facts Tort |
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TORT OF INTRUSION |
Intrusive physical, electronic, a mechanical invasion of solitude or seclusion-under the common law of Privacy-an information gathering tort not a publication tort-reasonable expectation of privacy |
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Tort of Appropriation (Misappropriation) |
A use of a name (likeness or image) without permission, for commercial gain, commercial appropriation and the right of publicity |
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The BOOTH RULE |
it is not a violation to use a person’s name or likeness in reporting the news or the news content of the publication Namath Case |
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NAMATH v. SPORTS ILLUSTRATED (1975) |
Namath signed a contract to have pictures done, he doesn’t own the rights to the picture. They didn’t change the picture and they are using it to sell magazines |
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CHER v. Forum Inter. Ltd (1982) |
Same house is not the same as the publication |
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Russel Chrisloff V. Nestle USA |
Nestle didn’t have permission to use photos, used it for over 20 years Lost because statute of limitations was applied |
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Ad hoc balance Theory |
Freedom of speech and press are two important human rights. -Often conflict-- responsibility of the court to balance the freedom of expression with other values (Example: right to freedom of expression must be balanced with the need for secrecy in the military). |
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Preferred position balancing Theory |
Some freedoms are more important than others |
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Meiklejohnian Theory |
Free expression related to self governance is absoluetly protected |
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Marketplace of ideas Theory |
"The truth-seeking rationale for less expression" |
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Access Theory |
Freedom of the press belongs to the man who owns one |
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per quod |
criminal disease business obscentites |
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libel elements |
published, false, reckless disreagrd, damages |
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strict scrtiny |
content based - gov must have interest |
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intermediate |
content neutral |
