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62 Cards in this Set

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Reporter's Privlidge

§ "reporter'sprotection under constitutional or statutory law, from being compelled totestify about confidential information or sources."

The Brandsberg Case

§ Intent, immnence, likelihoodBrandenburg is now the standardapplied by the Court to free speech issues related to advocacy of violence

Press Enterprise vs. Superior Court

§ TheUnited States Supreme Court decided that the public has the right to attendpretrial hearings in criminal cases, including preliminary hearings

Marketplace of Ideas

· the truth will emerge from thecompetition of ideas in free, transparent public discourse.

§ Texas vs. Johnson

§ TheCourt first considered the question of whether the First Amendment protectednon-speech acts, since Johnson was convicted of flag desecration rather thanverbal communication, and, if so, whether Johnson's burning of the flagconstituted expressive conduct, which would permit him to invoke the FirstAmendment in challenging his conviction.§ “thatits protection does not end at the spoken or written word.”§ thecourt asked whether "an intent toconvey a particularized message was present, and [whether] the likelihood wasgreat that the message would be understood by those who viewed it."§ Johnson’s“symbolic speech” was protected by the First Amendment

Ø 5 Approaches to applying the 1stAmendment of the Supreme Court

Strict Scrutiny


Clear present danger

Fighting words

Absolutist or Literalist Approach

Clear present danger

§ “whether the words used are used in such circumstances and are of such a natureas to create a clear and present danger that they will bring about the substantive evils thatCongress has a right to prevent."

Fighting words

§ 'fightingwords,' those that by their very utterance inflict injury or tend to incite animmediate breachof the peace"§ Thedifference between incitement and fighting words is subtle, focusing on theintent of the speaker. Inciting speech is characterized by the speaker's intentto make someone else the instrument of his or her unlawful will. Fightingwords, by contrast, are intended to cause the hearer to react to the speaker.

o Simon and Shooster

§ Dealswith Son of Sam laws, whichare state laws that prevent convicted criminals from publishing booksabout their crime for profit.§ Thecourt struck down the Son of Sam law in NewYork on the ground that the law was violativeof the First Amendment, whichprotects free speech.

o Citizens United vs. FEC

§ Giving Corporation’s the right to give anyamount of money

Lovell vs. Griffin

Ø The Court decided that the city ordinance wasunconstitutionally overbroad. Because the ordinance restricted not merely thetime, place, or manner of the materials distributed, the Court believed that itwas in violation of the First Amendment, and, by extension, the Fourteenth Amendment, which guaranteed thatthe federal constitutional guarantees would be binding on individual states.The Court reasoned that theordinance violated the Freedom of the Press condition of the First Amendment, asthe city demanded that all distributed periodicals, not merely those that wereconsidered obscene, offensive to public morals, or which advocate unlawfulconduct, obtain a license from the city before they could be distributed. TheCourt felt that the First Amendment was not limited to periodicals and newspapers,that it necessarily included the publication of leaflets and pamphlets as well

Traditional public forum:

a place with a long traditionof freedom of expression, such as a public park or a street corner. Thegovernment can normally impose only content-neutral time, place, and mannerrestrictions on speech in a public forum.

Limited public forum:

s a place with a morelimited history of expressive activity, usually only for certain groups ortopics. Examples of a limited public forum would include a university meetinghall or a city-owned theater. The government can limit access to certain typesof speakers in a limited public forum, or limit the use of such facilities forcertain subjects.

Closed public forum

a place that, traditionally,has not been open to public expression, such as a jail or a military base.Governmental restrictions on access to a nonpublic forum will be upheld as longas they are reasonable and not based on a desire to suppress a particularviewpoint.

o Mathew Shepherd Case

§ Park was a public forum§ Either take them all down, or leave them up

o Hurley vs. The Irish Gays

§ Private group can decide what type of speechthey want portrayed

o Boy scouts vs. Dale

§ Private group

o Public Accommodation Laws

§ Public places have to accommodate to all groupsof people, cannot discriminate

o Leonard Law

Ø Californiais the only state to grant First Amendment protections to students at privatepostsecondary institutions.

§ Hosty vs. Carter

Ø Thecourt of appeals held that college newspapers could be subject to the sameamount of school control allowed under Hazelwood v. Kuhlmeier (1988) for highschool newspapers.

o Cohen vs. California

F*** the draft

Ø Yes. In an opinion by Justice John Marshall Harlan, the Courtreasoned that the expletive, while provocative, was not directed toward anyone;besides, there was no evidence that people in substantial numbers would beprovoked into some kind of physical action by the words on his jacket. Harlanrecognized that "one man's vulgarity is another's lyric." In doingso, the Court protected two elements of speech: the emotive (the expression ofemotion) and the cognitive (the expression of ideas).

o Snider vs. Phelps

§ Reverend Phelps were protesting at the funeralsof American soldiers that died in Iraq§ Court said they can· In their zone

§ Arizona Gang Case

· Tried to set up seminars on how to run a gang· Mere advocacy is not enough

Ø Fighting Words

o Used to be face to faceo Direct challenge to someone

§ US vs. Stevens

Court reasoned that depictions of animal cruelty are not categorically unprotected by the First Amendment.

§ Virginia vs. Black

· Supreme Court deciding whether it is a threat ornot· Whether there is intent to discriminate

Planned Parenthood vs. Coalition

· Wanted poster of the doctors· Ruled that as a true threat

§ Shank vs. US

o People go to work safelyThe question in every case is whether the words usedare used in such circumstances and are of such nature as to create a clear andpresent danger that they will bring about the substantive evils that Congresshas a right to prevent.”In short, the Court held that reasonable limitscan be imposed on the 1st Amendment's guarantee of free speech. No person mayuse free speech to place others in danger. “Protected political speech” wasdiminished in time of war

Prior Restraint:

judicial suppression of material that would bepublished or broadcast, on the grounds that it is libelous or harmful

Near v. Minnesota

· Prior restraint is presumptivelyunconstitutional

§ Tinker

The Court also held that the students did notlose their First Amendment rights to freedom of speech when they stepped ontoschool property. In order to justify the suppression of speech, the schoolofficials must be able to prove that the conduct in question would “materiallyand substantially interfere” with the operation of the school


§ Is it a public forum? Or school sponsored?§ Is it part of the curriculum? Or extracurricular?§ Is the speech inconsistent with the schoolsmission§ Bad reporting?§ Profanity?§ Pedagogical concerns

§ Bethal vs. Frasier

Ø The Court found that it was appropriate for the school toprohibit the use of vulgar and offensive language.

Morse v. Fredrick

· schools can prohibit language of drug usebecause it interfere’s with school’s message of anti drugs

5 Elements of Libel


§ Of and concerning (identification)

§ Defamatory

§ False

Level of Fault

· Republication rule

o Unless you’re website that just passes on info

§ Manson Defense

Someone’s reputation is s bad, that you can’treally damage it anymore

Public officials

people in the hierarchy of importance that workfor the government that has influence on the public

Pervasive public figures

famous people, political figures

Actual malice

§ knowledge that it was false· Reckless disregard

Limited purpose figures

person who thrust themselves to the forefront…)

§ Saint Amont Case

· Security guard/bomb· Became a limited public figure

§ Firestone Principle

· You can do and act as you normall would do andact


§ can’t make someone public figure, and then sayhey you’re a public figure


can’t make someone public figure, and then say hey you’re a public figure

farmer, 65 months later, spy case


§ even if its inside a opinion piece, if it a factyou can prove true or false, it’s a fact

Ollman Test

o Can the statement be proved true or false?2. Words with different meanings

Rhetorical Hyperbole

o over exaggeration

Record Libel

o comes from an official source

§ Chilling effect

reporters get scared, won't want to report anymore

§ Shulman

· Private facts when she gets in the helicopter· The reasonable expectation of privacy

Private Facts

§ If you reveal them, is it highly offensive tothe average person§ Naming rape victimsSexual things

Florida star v. BJF

It is unconstitutional for a government agency to impose punishment upon a newspaper for truthfully publishing information that the government had in fact released publicly.

False Light

§ Don’t have to prove that it’s defamatory, justprove that it portrays you falsely

§ Laurence vs. Texas

· imacy, gay sex· Government shouldn’t be getting involved in that

Stafford Case

the strip search violated Savana's Fourth Amendment rights, but that the individual school officials were entitled to qualified immunity, because the search's unconstitutionality was not clearly established at the time of the violation.

Killian Case

· Girls in jail and arrested· Cops have the right to strip search

Florida Publishing Case

Implied Consent

· Fire, daughter, newspaper

§ DA/witch doctor

· If you invite someone in, you invite the wholeperson in

§ Cassidy Case

· Undercover officer· Prostitution· News channel 7

§ Dukes Case

· 2 guys in Dukeso Talking loud enough for someone can hear

Ø Welfare Case

o Florida passed a law that if you are a welfarerecipient have to publish their name and a bunch of info about themselves inthe biggest newspaper