Final Flashcards
1
Q
actual malice
A
In libel and intentional infliction of emotional distress, defendant knew or suspected that statement was false
2
Q
administrative law
A
Rules enacted by government agencies, such as Federal Communications Commission
3
Q
agencies
A
parts of government subject to FOIA
4
Q
appellate court
A
hears appeals of lower court rulings; never includes jury
5
Q
appropriation
A
Tort alleging use of plaintiff’s image for profit without permission
6
Q
assembly
A
right to gather together, listed in First Amendment
7
Q
association
A
right to affiliate with others; protected by First Amendment though not listed there
8
Q
Bill of Rights
A
first 10 amendments to the U.S. Constitution
9
Q
burden of proof
A
rule determining which party to a lawsuit must produce evidence to prove an
issue; in libel, plaintiff carries burden of proof for all elements
10
Q
Supreme Court’s decision to take a case
A
Certiorari
11
Q
Chief justice
A
Chief judge on Supreme Court
12
Q
Child pornography
A
Sexual images of actual children
13
Q
Action that inhibits you from exercising lawful rights, including speech
A
Chilling effect
14
Q
Court proceeding that might force losing defendant to pay damages (money)
A
Civil law
15
Q
Commercial speech
A
Proposal for a transaction; offer to buy or sell
16
Q
Type of appropriation tort filed by private person who isn’t interested in profiting off his/her low-value image
A
Commercialization
17
Q
Common law
A
Judge-made law, developed gradually over time
18
Q
Opinion written by judge who agrees with court’s ruling but wants to express additional thoughts
A
Concurring opinion
19
Q
Constitutional law
A
Judges’ interpretation of the Constitution
20
Q
Contempt of court
A
Penalty for disobeying judge’s order
21
Q
Property right in one’s writings and other creations that can be enforced in court
A
Copyright
22
Q
Notion that judges override majority rule when constitutional rights are at stake; e.g., government can’t take away your freedom of speech even if a majority of voters want to do so
A
Countermajoritarian
23
Q
Criminal law
A
Court proceeding that might force losing defendant to go to jail or pay fine
24
Q
Compensation (money) awarded in civil suit; can be general, special, or punitive
A
Damages
25
Defamation
Element of libel referring to whether speech at issue would actually harm someone’s reputation
26
Defendant
Person (or corporation) sued by plaintiff
27
Fair report privilege
Protects some statements that might otherwise be libelous
28
Defense to copyright infringement
Fair use
29
Level of defendant’s wrongdoing that plaintiff must prove in order to win civil case
Fault
30
Fighting words
Insult delivered face to face that tends to provoke listener to punch you
31
FOIA
federal Freedom of Information Act
32
In libel, costs that are difficult to evaluate precisely in dollar terms, such as pain and suffering
General damages
33
Offensive speech targeting someone’s sex, religion, ethnicity, or other identity; crime in many countries but protected by First Amendment in U.S.
Hate speech
34
Identification
In libel, whether statement at issue refers to plaintiff
35
Speech likely to provoke immediate unlawful action
Incitement
36
Doctrine that extends First Amendment coverage to states and localities, even though Constitution refers only to “Congress”
Incorporation
37
Intentional infliction of emotional distress
Tort that seeks damages for outrageous, hurtful behavior
38
Intermediate scrutiny
Constitutionality test for some speech-related laws; not as difficult to pass as strict scrutiny
39
Intrusion
Tort for entering place that plaintiff someone reasonably expects to be private; also can apply to getting private information in some circumstances
40
Judicial review
Courts decide whether something violates the Constitution
41
Jury nullification
Jury disregards law and finds defendant not guilty
42
Judge on Supreme Court
Justice
43
Libel per se
Type of defamatory statement; a plaintiff in Nevada may have an easier time winning suit for libel per se than for other libels
44
Statements that harm someone’s reputation
Libel
45
Libel-proof plaintiff
A person whose reputation is already so bad that he/she cannot prove that libelous statements inflicted any further harm
46
Limited-purpose public figure
In libel, a person who has become well-known by voluntarily taking part in a controversy
47
Mode of interpretation that looks beyond Constitution’s written text and takes into account contemporary values and ideals
Living Constitution
48
Failure to exercise reasonable care
Negligence
49
Extreme sexually explicit images
Obscenity
50
Originalism/original intent
Mode of interpretation based on meaning of Constitution’s words when written
51
Federal law enacted after 9/11; limits privacy in various ways
PATRIOT Act
52
Person (or corporation) who files a lawsuit
Plaintiff
53
Precedent
Earlier decision of court that’s relevant to current case
54
Word in First Amendment with almost no legal importance, because courts protect written expression under freedom of speech
Press
55
Order not to publish something, issued in advance
Prior restraint
56
Public disclosure
Element of publication of private facts tort
57
In libel, a very well-known person
Public figure
58
In libel, a government employee with substantial responsibility
Public official
59
Publication of private facts
Tort for classic invasion of privacy—spreading truthful but humiliating information
60
In libel, whether statement at issue reached an audience
Publication
61
Money awarded to punish defendant
Punitive damages
62
Right of publicity
Type of appropriation tort filed by well-known person, seeking damages for use of his/her valuable image without permission
63
Time during which broadcasters can air indecent programming
Safe harbor
64
A defense in libel and copyright cases
Satire/parody
65
Secondary-effects doctrine
Lets government regulate adult businesses based on impact they may have on neighborhood
66
Let journalists refuse to testify or provide evidence related to newsgathering
Shield laws
67
SLAPS
In obscenity, serious literary, artistic, political, or scientific value
68
In libel, out-of-pocket costs that a plaintiff can prove with specificity, such as lost income
Special damages
69
Under First Amendment, expression of all types, including nonverbal forms such as topless dancing and flag-burning
Speech
70
University rules limiting what students and faculty can say; generally unconstitutional at state universities but OK at private ones under state action doctrine
Speech codes
71
Stare decisis
Doctrine that courts generally follow precedents
72
State action
Action by part of government; First Amendment applies only to state action
73
Deadline for bringing lawsuit; in Nevada, two years for libel
Statute of limitations
74
Law written by legislatures
Statutory law
75
Strict scrutiny
constitutionality test for most speech-related laws; very difficult to pass
76
Court order to testify or produce evidence
Subpoena
77
Rule restricting mode of expression but not content, such as law against using megaphones on street at midnight; often constitutional
Time-place-manner
78
Civil allegation of wrongdoing for which court can award money damages
Tort
79
Defense to suits for appropriation and copyright infringement, in which defendant claims to have substantially altered plaintiff’s work or image and produced a new, artistic creation
Transformative
80
Trial court
Starting point for civil lawsuits and criminal trials; often includes jury
81
Population from which juries are chosen
Venire
82
Process of questioning potential jurors in court to decide who will be on jury
Voir dire
83
Work for hire
Employer generally owns copyright to material that employees create on the job
84
The First Amendment generally applies to all parts of government, not just to Congress, under the
incorporation doctrine
85
The antidemocratic nature of constitutional law is illustrated by
1. The way that constitutional rights cannot be overcome by simple majority vote.
2. The difficult nature of the amendment process.
3. The fact that Supreme Court justices are unelected and generally serve for life or until they resign.
86
Freedom from unlawful searches and seizures is ___________ under the First Amendment
Not Protected
87
The Constitution, under the state action requirement
applies only to government, not to private individuals and companies
88
both involved the mandatory flag salute
The Gobitis and Barnette cases
89
American governments in the correct order
Continental Congress, Articles of Confederation, Constitution
90
_________________ under the First Amendment has a number of limitations and exceptions.
Freedom of speech
91
"Stare decisis" is a Latin term meaning that judges generally
follow precedents--that is, past rulings by themselves or other judges.
92
When Congress sent proposed amendments to the states for ratification, what we know as the First Amendment was originally
third
93
True or false: Barnette overruled Gobitis
True
94
Judges who embrace the doctrine of originalism focus on
what the words of the Constitution meant at the time of the framing
95
Generally speaking, public school students can be punished for advocating
the use of illegal drugs
96
Which judges sit on the Nevada state appeals court?
Nevada doesn't have a state appeals court
97
A decision of the Federal Communications Commission is an example of
administrative law
98
Generally speaking, courts have found college speech codes banning hate speech to be
unconstitutional
99
Generally speaking, which courts have juries, witnesses, and evidence?
trial courts
100
The Tinker case involved students who
wore armbands in protest of war
101
NOT generally advanced as a purpose of free speech?
emanations and penumbras
102
Under Hazelwood, when a school creates and supervises a forum for student speech, such as a school-sponsored newspaper, the school generally
can control the content
103
A justice who thinks the majority has reached the wrong holding in a case may write a
dissenting opinion
104
After 9/11, Congress enacted
the USA Patriot Act
105
The federal government wants to prosecute Edward Snowden for violating the Espionage Act, because he revealed national security secrets knowing that the information would reach enemies of the United States. Snowden released some information via the New York Times. What seems to be the reason that the Times and its editors aren't being charged under the Espionage Act too?
Snowden worked for the government and took an oath. Times editors didn't.
106
In his dissenting opinion in FCC v. Pacifica Foundation, Justice Brennan argued that broadcasters ought to be able to air such words as "bullshit" and "fuck" because of
cultural pluralism
107
In the Pentagon Papers case, the Supreme Court
authorized newspapers to continue publishing the classified documents
108
The Pentagon Papers case in the Supreme Court was called
New York Times v. United States
109
In FCC v. Pacifica Foundation, the Supreme Court ruled that the FCC can subject broadcasting to stricter regulation than print. Which of the following did the Court not cite as a factor justifying the different approach for broadcasting?
Broadcast licenses are uniquely expensive.
110
The FCC allows broadcasters to air some material anytime. Other material can be aired only between 10 p.m. and 6 a.m. What type of material does the FCC prohibit at all hours?
obscenity
111
What happened in the Progressive magazine case?
The court imposed a prior restraint to prevent the magazine from publishing plans to the hydrogen bomb.
112
In the 2012 case on so-called fleeting expletives, what did the Supreme Court do?
Did not address the First Amendment issue.
113
Constitutional rights apply only if the government interferes with you, not if private parties do so, under the
state action doctrine
114
Can a dead person, through his estate or an heir or otherwise, go to court and file a successful lawsuit for libel?
No
115
Punitive damages are designed to
punish the defendant
116
Are bloggers potentially liable for posting libelous statements online?
Yes
117
To be libelous, a statement must "defame" the plaintiff. That means it must
harm the plaintiff's reputation
118
In a libel lawsuit, who must prove that a statement is false?
the plaintiff
119
NOT an element of the plaintiff's libel case?
imminent danger
120
Is sometimes also a crime
tort
121
Can branches or agencies of government sue for libel?
No, never
122
The element of publication in libel law requires that a defamatory statement that is in writing
Be read by at least one person besides the plaintiff
123
To say that Nevada has a two year statute of limitations for defamation lawsuits generally means that
a lawsuit can move forward only if it is filed less than two years after publication
124
The fair report privilege applies where
he article fairly and accurately presents information from a police report or other public, government document
125
A man sues you for burning his house down. (You're not a public figure.) You don't know him, you never went to his neighborhood, and you were out of town that day. A local newspaper quotes the plaintiff's documents filed in court without getting your side of the story. You sue the newspaper for libel, because it republished someone else's libelous remarks. Will you win?
No
126
You're angry at your roommate, who suffers from anxiety. You hide behind a door and shout "Boo!" when he walks by. The episode causes him severe emotional distress, just as you had hoped. He's a private figure. He sues you for intentional infliction of emotional distress. Is he likely to win?
No, because your conduct wasn't extreme and outrageous
127
New York Times v. Sullivan and other cases have had what effect(s) on libel law?
1. Generally, strict liability is no longer applicable in states where it used to be before Sullivan.
2. Far fewer cases reach the jury now than before Sullivan.
3. More libel judgments get overturned on appeal than before Sullivan.
128
Adolf Hitler (who surprisingly turns up alive) sues you for wrongly reporting that he fled the scene of an auto accident. Your STRONGEST defense, if the jurisdiction accepts it, is likely to be
libel-proof plaintiff
129
You write that Governor Sandoval's budget cuts demonstrate that he is a traitor to the State of Nevada. He sues for libel. Your STRONGEST defense is likely to be
hyperbole, exaggeration
130
In Snyder v. Phelps, the father of a Marine killed in Iraq sued Westboro Baptist Church leaders for picketing near his son's funeral. The father sought damages for intentional infliction of emotional distress. What was the result in the Supreme Court?
The father lost because the church's signs addressed a matter of public concern.
131
A plaintiff must prove all elements of a libel case. To prevail in response, a defendant must prove how many defenses?
One
132
NOT an element of a prominent appeals court's test for whether a statement is fact or opinion?
clarity
133
elements of a prominent appeals court's test for whether a statement is fact or opinion?
common usage of words, journalistic context, social context
134
Generally protected under the First Amendment
Offensive speech
135
In the Hit Man case, the Fourth Circuit Court of Appeals held that a speaker may be liable for inciting lawless action, even though the lawless action occurs much later, if the speaker
intends to bring about that result
136
For speech to be punishable as a true threat, a speaker must direct the threat to one or more individuals
with the intent of causing the listener to fear bodily harm or death.
137
Dissenting in Brown v. Entertainment Merchants Association, Justice Breyer said that the case is less about censorship than it is about
Education
138
In Brown v. Entertainment Merchants Association, the Supreme Court said that violent videogames are
a form of speech with First Amendment protection
139
Police arrest someone because his hate-filled speech is likely to cause a hostile audience to attack him, is an example of
a heckler's veto
140
When the Supreme Court agrees to hear a case, it generally issues a writ of
certiorari
141
Vanna White sued, alleging that a robot resembling her had invaded her privacy. Which privacy tort did she use?
Appropriation
142
NOT an element of the intrusion upon seclusion tort?
Actual malice
143
elements of the intrusion upon seclusion tort?
Reasonable expectation of privacy, Intentional intrusion on the privacy, Intrusion that would be highly offensive to a reasonable person
144
NOT an invasion of privacy tort
copyright
145
invasion of privacy tort
appropriation, publication of private facts, intrusion
146
In some states, the privacy right that survives a person's death is called
right of publicity
147
When a so-called human cannonball sued a TV station for broadcasting his entire act, the Supreme Court
held that the station had infringed his right of publicity
148
A celebrity sues you for publishing a depiction of her. Which of the following is not a defense that you can plausibly raise?
She's no longer a celebrity; she's a has-been.
149
Who were Warren and Brandeis?
authors of an influential article on privacy law
150
An ad featuring celebrity impersonators is most likely to raise issues under which privacy tort?
appropriation
151
How many countries were probably involved in writing the Stuxnet virus, according to the Washington Post?
Two
152
Advertisements featuring impersonators who closely resemble celebrities
are lawful if the ads feature prominent disclaimers stating that these are not the actual celebrities
153
The idea that the law should protect privacy -- the right to be left alone -- first was put forward in the U.S.
in a law review article written by Warren and Brandeis published in 1890.
154
Which invasion of privacy tort is trespassing most likely to constitute?
intrusion upon seclusion
155
How many people must hear a statement for it to constitute libel or publication of private facts?
One person besides the plaintiff for libel; generally a larger group for publication of private facts.
156
A statement must be false to sustain a libel claim and true to sustain a claim for publication of private facts.
Generally true
157
Oliver Sipple may have saved President Ford's life. When news media revealed that he was gay, Sipple sued for
publication of private facts.
158
In the Valerie Plame case, the special prosecutor asked potential leakers to
sign waivers, releasing reporters from pledges of confidentiality
159
vary in their treatment of sources' waivers
Reporters
160
The Supreme Court ruled that the Boy Scouts have a constitutional right to discriminate against a gay scoutmaster. The Court viewed it as a negative version of a First Amendment right--namely, the freedom not to
associate
161
isn't expressly listed in the First Amendment, but the courts have said it exists as an outgrowth of the other freedoms.
freedom of association
162
In subpoenaing Dana Gentry, what argument did Aspen Financial Services advance in order to get around the Nevada shield law?
The subpoena doesn't seek any information gathered by Dana Gentry in her capacity as a journalist.
163
Reporters can often refuse to testify, thanks to a shield law that applies in
state courts
164
Which provides the greatest freedom? That is, when you exercise different forms of protected expression, which one lets you say things that might get you in trouble under the other forms?
So far, the Supreme Court has indicated that they're all equivalent--none provides greater protection than the others.
165
Which of the following freedoms applies only when you're talking to the government?
petition
166
a command for someone to testify or supply documents in a court
A subpoena
167
Reporters who disobey subpoenas
can be held in contempt of court and jailed, fined, or both
168
CANNOT be copyrighted
Ideas
169
A newspaper that violates a pledge of secrecy and reveals a confidential source's name may have to
pay damages to the source
170
Who must generally authorize a federal subpoena of a journalist?
the Attorney General
171
If I send you a letter, the copyright covering the words in the letter belongs to
Me
172
As the BALCO case illustrates, a source who illegally leaks information
may have to go to jail
173
The acronym SLAPS in obscenity law refers to
serious literary, artistic, political, or scientific value.
174
True or False: The Supreme Court has upheld laws that require public libraries to block indecent Internet material unless a patron requests that the filter be turned off
True
175
The Supreme Court lets cities and states use zoning laws against adult businesses in order to protect against secondary effects, such as
illegal activities such as prostitution and illicit drug sales that may occur around adult businesses.
176
Can a city ban adult businesses altogether?
No
177
does NOT have full First Amendment protection
nude dancing
178
Can a sexually explicit painting of children lead to a prosecution?
Yes, as obscenity.
179
The federal law against child pornography prohibits certain sexually explicit depictions of anyone under age
18
180
It does not apply to obscenity whatsoever
The First Amendment
181
Community standards in obscenity law do NOT apply to
SLAPS
182
It's legal to possess but not to sell.
Obscenity
183
Does the First Amendment protect advertising?
Yes, but not as much as it protects political speech.
184
NOT a FOIA exemption?
Defamation
185
Is it constitutional to punish someone for offering to provide fake child pornography, according to the Supreme Court?
Yes, if the material is offered as actual child pornography
186
When the New York Times filed a FOIA request with NASA for the audio tape recording of the cockpit conversations in the space shuttle Challenger, a court ruled that
the tape could not be released because of personal privacy
187
In Coyote Publishing v. Heller, the Ninth Circuit considered the constitutionality of a Nevada law restricting
advertising of brothels
188
Licensing
» Must get official permission to publish » Started in Britain, early 1500s
» Continued in American colonies at first » Consensus late 1700s:
• Licensing contrary to free speech
• But OK to punish speech afterward
189
Sedition Act (1798)
jailed people for criticizing government
190
Licensing today: FCC
licenses stations, not programs
191
Licensing today: Parade permits
must be content neutral
192
Government order not to publish based on pre-publication review (Almost never constitutional)
Prior restraint
193
Pentagon Papers Case (1971): prior restraint OK only if it’s
* Vital to prevent
* A harm that’s very serious
* And certain
* To important governmental interests
194
Some Prior restraint exceptions
* Gag orders on attorneys during trials
| * Incitements to violence
195
Purpose of free speech
```
» Marketplace of ideas
» Self-government
» Press as check on government
» Safety valve for social discontent
» Dissent and tolerance
» Personal self-fulfillment
• Expression is fun!
```
196
Marketplace of ideas (free speech)
Truth defeats falsehood, at least in long run
197
Self-government (free speech)
Voting requires conversation and shared
| knowledge
198
Press as check on government (free speech)
Investigative reporting
199
Safety valve for social discontent (free speech)
If you can picket, you won’t riot
200
Dissent and tolerance (free speech)
• We must protect those who challenge our
deepest beliefs—the people we really want to censor
• That way, we learn to live with them
201
Personal self-fulfillment (free speech)
Expression is fun!
202
Judicial Philosophy approach: Political
» Is a Justice politically liberal or conservative?
» Example: Bush v. Gore (2000)
» But exceptions
• Flag burning a First Amendment right?
- Conservative Scalia: Yes
- Liberal Stevens: No
203
3 Judicial Philosophy approaches
1. Political
2. Interventionist
3. Interpretive
204
Interventionist
```
» Judicial activism
• Expansive notion of rights
• Takes many issues out of democratic process
• Often liberal
» Judicial restraint
• Narrower notion of rights
• Takes few issues out of democratic process
• Often conservative
```
205
Interpretive
» (Strict construction / textualism)
» Original intent
» Living Constitution

206
Strict constructionism
» First Amendment says “speech” and “press,” so doesn’t cover hand handwritten letters
» Few if any hold that view
207
Originalism (Justice Scalia)
```
» What did words mean to Framers?
• But allow for new technologies
» Sources
• Constitution
• 1789 dictionary
• Other records only if words are ambiguous
» Generally favored by conservatives
• Scalia: it’s a dead document
```
208
Living Constitution: (Justice Brennan)
```
» Follow fundamental principles but
• Adjust for social progress
• Respect human dignity
» Effect
• Extensions of rights never imagined in 1789, e.g.
topless dancing = free speech
• New, nontextual rights, e.g. privacy
» Generally favored by liberals
```
209
Griswold v. Connecticut (1965)
» CT law: crime to use contraceptives
» Court: unconstitutional
• Privacy protected by Amendments 3 (quartering soldiers), 4 (search and seizure), 5 (self-incrimination)
• Therefore, right to contraceptives
» Foundation of Roe v. Wade
210
Griswold v. Connecticut: Dissent (Justice Stewart)
» Silly law, but doesn’t violate Constitution
» No soldiers quartered in houses. No searches. No self-incrimination.
» Can’t invent this right just because Constitution sometimes protects privacy
211
Troubles with Originalism
* Murky, conflicting historical evidence
* Framers may not have intended original intent
* Whose intent, authors or ratifiers?
* They disagreed on some things
* They sought to create new society, not to preserve old
* They couldn’t imagine issues we face
* They were racist, sexist, etc.
212
Troubles with Living Constitution
• Can be judicial tyranny
• Justices can do whatever they want
• Hard to reverse them by amendment
• Shrinks American democracy
- Early 20th century: Court said sometimes can’t set minimum wage or ban child labor—violates freedom of contract
- Now Court says sometimes can’t punish abortion, gun possession
- Scalia: Put it to a vote!
213
Brown v. Entertainment Merchants (2011) :Majority
* No tradition of keeping kids away from violent literature
* Interactivity nothing new
* Research findings ambiguous
* Self-regulation works
214
Brown v. Entertainment Merchants (2011) :Alito
Concurring in judgment
• Badly written law but serious issue
• Player’s experience may differ from reader’s
• Should be cautious
215
Brown v. Entertainment Merchants (2011) :Thomas
Dissenting
| • Minors have no First Amendment rights
216
Brown v. Entertainment Merchants (2011) :Breyer
```
Dissenting
• No great restriction on speech
• Experience is different
• Research shows dangerous effects
• “Variable obscenity”
- OK to keep kids away from pornography
- Why not this?
• Not censorship; education
```
217
Vance v. Judas Priest (Nev. 1990)
» First Amendment doesn’t cover subliminal
| » Backmasking doesn’t affect behavior
218
Why doesn't the First Amendment cover subliminal?
- Don’t contribute to marketplace of ideas
| - Manipulation without person’s knowledge - Invasion of privacy
219
Effect of subliminal messages
- Can be perceived subconsciously
| - No evidence they can cause suicide
220
Elements of Libel
1. Fact
2. Published
3. About you (identification)
4. Defamatory
5. False
6. Fault
7. Nevada: monetary harm, usually
221
Libel Defenses and Privileges: Always safe to quote in Nevada
Court documents
222
Libel Defenses and Privileges: Fair report privilege
a. Report on issue of public concern in public government meeting or public government document
b. The coverage is accurate and fair
c. The source is given
Nevada: yes
223
Libel Defenses and Privileges: Reply
• Example: if someone defames you, you can call him a liar
• Not applicable if any of these applies
– Go substantially beyond initial statement
– Far more defamatory than initial statement
– Far more publicized than initial statement
– Hatred or ill will
• Nevada: yes
224
Libel Defenses and Privileges: Parody, joke, satire
Nevada: almost certainly
225
Libel Defenses and Privileges: Neutral reportage
Repeating others’ defamatory statements protected in some circumstances
Not all courts recognize
Nevada: ??
226
Libel Defenses and Privileges: Libel-proof plaintiff
Plaintiff's reputation already terrible Not all courts recognize
Nevada: ??
Some courts: same-topic rule
227
Nevada statute of limitations for libel or slander
2 years
228
Nevada statutes: Seek a correction
• Only out-of-pocket, provable damages (“special”) unless
– Within 90 days of learning of defamation, seek correction in writing
– News outlet doesn’t comply with correction
• “Substantially as conspicuous”
• Within 20 days of request
• If that happens, can seek
– general damages (pain and suffering, etc.)
– punitive (punishment) damages
229
Nevada statutes: Common sequence
• Seek correction or retraction
– Studies: people sue when they get blown off
• File suit
• Newspaper files motion to dismiss
• Discovery process
– Journalists can withhold notes (Nevada)
• Newspaper files motion for summary judgment
– Victory without trial
– Often granted
• Trial
– Defendant gets case thrown out before it reaches jury 75% of the time
– But often settled pretrial: cheaper, less risk
230
Nevada statutes: Appeal
• When the journalist loses:
– Appellate court reviews facts from entire record
• Highly unusual—generally accepts facts from trial
court
– Only 1/3 of damage awards are upheld on appeal
231
Why do “actual malice” etc. matter?
| They help journalists avoid
1. Big jury awards, threat of bankruptcy
2. Harm to reputation of journalist and outlet
3. Chilling effect on reporting
4. Lengthy, expensive litigation
5. Hassle for defendants and witnesses
232
The consequences of Actual Malice
1. Shrinks jury’s role
2. Harms without remedy: Public official/figure may lose, even though false statement hurts reputation
3. Fuels tabloid coverage of celebrities?
4. Sloppy journalism—incentive not to check?
5. Keeps good people out of government?
233
Why is Libel out of fashion?
```
– Actual malice makes hard to win
– Lawyers’ fees
• $ is in punitive damages
• Even if private figure, must show actual malice
– Internet
• Quick online corrections
• Can get own side out online
– Less investigative reporting?
```
234
Intentional Infliction of Emotional Distress:
| Extreme and Outrageous Conduct
* Florida: showing murdered child’s skull on news
* New York: Howard Stern combing through cremated remains and joking
* California court: filming interviews with children about neighbor’s murder, with no adults present
* Sometimes To Catch a Predator-type shows
235
Intentional Infliction of Emotional Distress:
| Intent to Cause Emotional Distress or Reckless Disregard as to the Probability
• California: police officers acted recklessly in emailing photos of decapitated victim of auto accident to friends, who forwarded them to others
236
Intentional Infliction of Emotional Distress:
| Caused Severe Emotional Distress
• Nevada supreme court:
– “Very upset” and insomnia not enough
– Plaintiff must prove objectively, such as by psychiatric records
237
Intentional Infliction of Emotional Distress:
| If Public Official / Figure Claims Speech Caused IIED, Actual Malice
• False assertion of fact
– Something readers take seriously
• Defendant knew or suspected it was false and would be taken seriously
238
Intentional Infliction of Emotional Distress:
| If Topic Is Public Issue, No Liability?
Snyder v. Phelps (2011)
| - Soldier funeral protestors
239
Elements of Intentional Infliction of Emotional Distress
1. Extreme and Outrageous Conduct
2. Intent to Cause Emotional Distress or Reckless Disregard as to the Probability
3. Caused Severe Emotional Distress
4. If Public Official / Figure Claims Speech Caused IIED, Actual Malice
5. If Topic Is Public Issue, No Liability?
240
Who’s a Public Official?
```
• Supreme Court: “at least” government employees with “substantial responsibility for or control over ... governmental affairs”
• 9th Cir. and Nevada Supreme Court:
– high-level prosecutor
– state judge
– commander of Navy ship
– police officer
```
241
Why Make Public Figures Prove Actual Malice?
1. You asked to be famous.
(Supreme Court: involuntary public figures very rare.)
2. You have political and cultural clout.
3. You have media resources to respond
242
Limited-Purpose Public Figures
```
Requires all three:
• Preexisting controversy
– Not one created by alleged libel
– Probably serious controversy, not gossip
• Plaintiff voluntarily participated
• Tried to sway public opinion
```
243
Gertz v. Robert Welch Inc. (1974)
Standard for private person:
| Negligence (failure to exercise reasonable care by standards of professional journalism)
244
Nevada Shield Law
No reporter ... may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings....
245
Nevada Shield Law in Libel Cases
* Journalist defendant doesn’t have to turn over notes or reveal sources
* But can’t later use that evidence at trial
246
Monetary harm, usually
• Not required in all states
• Nevada:
– Plaintiff must prove “special damages”
• Harm to property, business, or occupation
– Unless both:
• Plaintiff proves actual malice (even if private figure)
• Statement is “libel per se”
• Libel per se in Nevada
1. Crime
2. Harm to professional reputation
3. “Loathsome disease”
4. Sexual misconduct (“unchaste woman”)
247
Plaintiff must prove all seven
| If plaintiff misses one, defendant wins
1. Fact
2. Published
3. Identification
4. Defamation
5. False
6. Fault
7. Monetary harm (usually)
248
3 types of damages
1. Special
2. Actual
3. Punitive
249
Special damages:
Loss of $, such as salary, that plaintiff can prove with precision
Nevada: always available
250
Actual / general damages:
pain and suffering, harm to reputation—hard to evaluate precisely
Nevada: available against media only if plaintiff seeks correction but doesn’t get one
251
Punitive / exemplary damages:
```
designed to punish, like criminal law (big $ in practice)
Everywhere: must show actual malice
Nevada: generally must do both:
1. seek and not get a correction
2. prove hatred or ill will
```
252
Nevada Correction Law
• Only provable damages (“special”) unless
– Within 90 days, seek correction in writing
– News outlet doesn’t run correction
• “Substantially as conspicuous”
• Within 20 days of request
• If ask but get no correction, can seek
– actual damages (pain and suffering, etc.)
– punitive (punishment) damages
253
Where it applies, the __________ standard generally protects ALL libel defendants
actual malice
254
Nevada Independent Broadcasters v. Allen (NV 1983)
• William Allen seeking Republican nomination for Nevada governor
• Debate moderator: Allen bounced a check, doesn’t pay bills so can’t be trusted with state funds, isn’t honorable
• Allen sued for slander
• Won $675,000
• Appealed to Nevada Supreme Court
-reduced to $50,000
255
“Liberal”
liberty, not political liberalism
256
The incorporation doctrine under the 14th Amendment means that
the First Amendment and many other provisions of the Bill of Rights apply to the states
257
What are insult laws?
Laws that make it a criminal offense to insult the honor or dignity of public officials.
258
Ethics and the law generally do not conflict for journalists, with the exception of
testifying under subpoena about confidential sources.
259
Almost all nations prohibit
Child pornography
260
Newsroom ethics codes may require journalists to give up some customary rights of citizens, such as
making campaign contributions, participating in protest marches, putting political bumper stickers on the family car
261
Freedom House considers the worst countries for press freedom to include
Cuba, Iran, North Korea, and Belarus
262
Roughly how many of the world's inhabitants live in countries with a free press, according to Freedom House?
A Seventh
263
In libel or other cases, do courts or juries ever try to enforce newsroom ethics codes?
Yes
264
True or False: Many professions and occupations have ethics codes.
True
265
Insult laws are
Widespread
266
Elements of Liberal Democracy
* Rule of law
* Self-government
* Suspicion of power
* Generally two or more parties competing
* Stress on due process (proper procedures)
* To some extent, public virtue
267
Rule of law
– Government operates by law, not whims of rulers – Law applies equally to everyone
– Strong, independent courts
268
Self-government
– Direct or representational
– Public offices generally open to all candidates
– People obey law partly because they help make it
269
Elements of Liberal Democracy: Relevant to Press
* Transparency
* Limits on power; rights government can’t abridge
* Freedom of speech, so voters can inform themselves and discuss policy options
270
Transparency
– Laws made in public and accessible to public
| – Trials held in public
271
Limits on power; rights government can’t abridge
– Bill of Rights
272
History: The Bill of Rights key themes
– Localism
| – Distrust
273
What was the sequence of events leading up to The Bill of Rights?
* British rule
* Continental Congress
* Articles of Confederation
* Constitution
* Bill of Rights
274
1735: Zenger Trial
```
• John Peter Zenger, printer
• Charged with seditious libel
– Defaming government officials
• Guilty but jury ignored law and acquitted him
– “Jury nullification”
```
275
What was the sequence of events for Independence?
• 1776: Declaration of Independence
– Government: Continental Congress
• 1777: Continental Congress passes Articles of Confederation and sends to colonies
– Require ratification by all 13 states
• 1781: Last state ratifies; Articles take effect
276
Articles of Confederation
• States in “a firm league of friendship”
• Weak central government
– Legislature only
– Congress appoints a member as “President of the
United States in Congress assembled”
• 1783: Britain signs preliminary peace treaty
277
1786-1787: Discord
* Shays’ Rebellion
* Congress had no authority to intervene
* Anarchy fears
* Fueled dissatisfaction with Articles
278
Ratification
```
• Opponents
– Too much power in national government
• Distrust and localism
– Needs bill of rights
• Distrust
```
279
Who drafted the Amendments?
Maddison
280
Distrust
– Government generally
| • Juries, elections, separation of powers, bicameralism – “Passions” and amendment process
281
Localism
– Distrust faraway government especially
• Most of Bill of Rights limited federal government
– First Amendment: “Congress shall make no law....”
• Local governors, taxers, juries
282
Jefferson Took Office
* Ordered Secretary of State James Madison not to deliver any more commissions
* William Marbury sued, demanding his commission
283
1803: Trial
• In Supreme Court
• Chief Justice Marshall’s dilemma
– If Marbury lost, he’d look weak
– If Marbury won and the Court ordered Madison to
deliver the commission,
• Jefferson and Madison would probably ignore it and Court would look powerless
• Marshall might get impeached and removed
284
Marshall’s Solution
* Marbury deserves his commission
* We can issue orders to President
* Congress assigned us such cases in 1789
* But the Constitution assigns us different cases
* The Constitution is supreme, so we can’t help you, Marbury
285
True or False: Judicial Review is democratic
False: Undemocratic
286
Supreme Court gets last word on Constitution
– Tough to amend
| – So 9 justices—or 5, or 1—decide
287
USA PATRIOT Act
National Security Letters (Section 215)
Law lets government demand third-party records without warrant if relevant to terrorism investigation
E.g., phone carrier, bank, Internet provider
Even if person isn’t a suspect
Third-party recipient can’t reveal its existence except to its own attorney
Library records?
288
Bethel School District v. Fraser (1986)
School can punish lewd or raunchy speech
289
Morse v. Frederick (2007)
Can censor speech that promotes drug use
290
Speech Codes are generally ___________ at public universities
Unconstitutional
291
Fighting Words: Unprotected
Chaplinsky v. New Hampshire (1942)
```
» Definition
• Speaker insults listener
• Listener can’t help attacking speaker
» Can ban if speech
1. Tends to incite
2. Immediate
3. Breach of peace
```
292
Offensive Speech: Protected
Cohen v. California (1971)
» Definition:
• Offensive words
• Generally not targeted at any individual
» Can’t generally ban (but exceptions)
293
Threat: Unprotected
Virginia v. Black (2003)
```
» Definition: Speech that
1. Targets an individual or small group
2. Intending to cause them
3. To fear bodily harm or death
» Can ban
```
294
Provoking Hostile Audience: Usually Protected
Terminiello v. Chicago (1949)
» Definition
• Speaker’s unpopular message to crowd
• Provokes audience to attack speaker
» Generally protected; no heckler’s veto » Exception: Can ban speech if it’s
1. Likely to produce
2. A clear and present danger
3. Of a serious substantive evil
295
Inciting Friendly Audience: Unprotected
Brandenburg v. Ohio (1969)
» Definition: Speaker rouses crowd to violence
» Can ban if speech is
1. Directed to and
2. Likely to
3. Incite or produce imminent lawless action
4. Imminence or how-to without ideas (aiding and abetting)
296
Rights restrict the government—but we’re the government.
“Countermajoritarian”
297
The Bill of Rights safeguards us from temporary_____________.
irrationality
298
he Bill of Rights protects us against
government, NOT individuals or corporations
| — the “state action” requirement.
299
The First Amendment applies to all parts of government under the
“incorporation doctrine.”
300
Speech is _______, to an extent.
special
301
Generally speaking, ________ aren’t special. Everyone has the same First Amendment rights.
journalists
302
The government generally can’t favor some citizens’ speech over others.
Content neutrality usually required
- Content = topic
- Example: you can talk about anything in the hallway
Viewpoint neutrality almost always required
- Viewpoint = position on topic
- Example: you have to talk about the First Amendment
in this class, but you can support or oppose it.
303
The First Amendment isn’t absolute. Government can
(a) impose time-place-manner rules
(b) punish
- obscenity
- child pornography
- defamation
- copyright infringement
- many others
304
The First Amendment generally covers speech, not _______
Action
| —even action that conveys a message.
305
True or False: Judges disagree with one another.
True
306
True or False: Judges don't make mistakes
False
307
True or False: Congress makes mistakes.
True
308
True or False: The legal system doesn’t compensate you for every harm.
True
309
True or False: In the United States, you can denounce the government in heated, even hysterical ways.
True,
however that’s not true everywhere.
310
Concurringinthejudgment
• Majority got it right for wrong reasons
311
Plurality
• Majority agrees on outcome but not on reasons
312
Types of Law
» Constitutional law
» Common law
» Statutory law
» Administrative law
313
Constitutional law
* Interpretation of Constitution
| * Relevance: First Amendment
314
Common law
• Judge-made
• Relevance
- Torts, such as libel and invasion of privacy
- Breach of contract
315
Statutory law
```
• Enacted by legislatures
• Relevance
- National security
- Freedom of Information Act
- Copyright
```
316
Administrative law
* Enacted by government agencies
| * Relevance: FCC
317
JUDICIARY STRUCTURE: Federal Court
» 3 levels
• District (trial) courts
• 13 appellate courts
- Nevada: Ninth Circuit
• Supreme Court (generally appellate)
» All federal judges appointed by President, confirmed by Senate
318
JUDICIARY STRUCTURE: Nevada
» Levels: no appellate courts
• Trial courts
• Supreme Court
» State judges elected
319
Trial Courts
```
» Hold trials
» Witnesses, evidence
» Often jury
» Frequent court sessions
» Establish facts and apply law
» Generally one judge
```
320
Appeals Courts (Including Supreme Court)
```
» Hear appeals
» No witnesses, only lawyers
» No jury
» Infrequent court sessions
» Generally accept trial court’s facts
• Exception:libel
» Apply own view of law » Generally several judges
```
321
U.S. Supreme Court
» Almost always discretionary
» Certiorari: agreement to hear appeal
• Takes four votes
• Accepts only 5% of cases
- Often where federal circuit courts disagree
• Refusal doesn’t mean lower court was right
322
Bench trial
judge alone
323
Bringing a Civil Suit
» Lawyer: often contingency fee
» Discovery
• Generally must surrender evidence and testify pretrial
» Summary judgment by judge
• Defendantwinsifjurycouldn’treasonablydecide otherwise
• Fairlycommoninlibelcases
324
Operation sequence of a trial
» Opening arguments
» Each side presents evidence
» Lots of objections and other interruptions
» Lawyers can’t explain evidence until end
» Jurors generally must sit silently
» Closing arguments
» Instructions
325
Proposals
» Let jurors ask questions
» Let jurors take notes
» Eliminate peremptory challenges
326
Coates v. Cincinnati (1971)
» Law: crime for
• three or more
• to “conduct themselves in a manner annoying to persons
passing by”
• on a sidewalk
» Supreme Court: unconstitutional
• Too vague—what’s annoying? Who decides?
• Violates freedoms of assembly and association
- Would be used against those whose ideas are “annoying”
327
General Rules: Freedom of Assembly
» Time-place-manner restrictions OK
• Permit requirements
• Closing public park overnight
» But must be content-neutral
328
Freedom of Association
Not listed in First Amendment, but implied
329
“Intellectual Property”
Copyright, Patent, Trademark
330
Copyright
Protected: under copyright
Unprotected: “public domain”
331
Copyright is applied on creation of a work that’s
– Substantially original
– “Fixed in tangible form”
• Paper and content: two different things
332
What is not considered copyright
```
Facts
Titles
Ideas
Names
Short phrases
Federal documents
```
333
How long does Copyright last
Generally life + 70 years, then public domain
334
Who owns copyright?
•Author/creator unless either
– Assigned to someone else
• Some magazines require
– “Work for hire”
335
How to copyright
• © unnecessary but can help you prove infringement
– You can use it without registering
• Registering
– Lets you sue for infringement
– $35 online to Copyright Office
336
Fair Use Factors
1) Purpose of copying (including whether for profit)
• Good uses
– Teaching, criticism, scholarship, news, documentary
2) Nature of the copyrighted work
• Extra concern for unpublished works
3) How much used
• What proportion
• Whether it’s especially important part
337
Transformativeness
Part of fair use analysis: Purpose of copying
338
U.S. v. Stevens (2010)
• Holding: law unconstitutional
– Traditions of regulating obscenity, libel, etc.
– Tradition of regulating animal cruelty
– But no tradition of regulating depictions of animal
cruelty
• JusticeAlitodissented
– “depraved entertainment ... no social value”
339
Ethics Code Contents
» Most common: conflicts of interest
» Also common: treatment of sources, manipulation of photos
» Rarer: privacy, deception in newsgathering
340
Pornography:
legally meaningless
| – Old cases: “hard-core pornography” = obscenity
341
Indecent:
sexually explicit but not obscene
| – Some First Amendment protection
342
Child pornography:
illegal to sell or own
– No First Amendment protection
– Prosecutions frequent
343
Obscenity:
illegal to sell or exhibit, legal to own
– No First Amendment protection
– Prosecutions rare
344
Violence
isn’t obscenity or indecency
| – Full First Amendment protection
345
What gets prosecuted as obscenity today?
* “Drawing, cartoon, sculpture, or painting” of child sex
| * Film of bizarre, extreme, outrageous adult sex
346
Why are regulations of adult businesses permissible?
• “Secondary effects”
– Drugs, prostitution
– But questionable whether worse around adult businesses than elsewhere
347
First Amendment coverage depends on body coverage
```
• Clothed dancing: full protection
• Partly nude dancing: limited protection
– Can zone but can’t ban
• Nude dancing: little or no protection
– Can ban
```
348
Types of Privacy Law
```
 Intrusion
Appropriation
◦ Commercialization
◦ Right of Publicity
Publication of Private Facts
[False Light]
```
349
Intrusion
```
-Intentional intrusion
◦ Physical (trespassing)
◦ Technological
◦ Other (Social Security number, perhaps medical
records)
-But not public records: publishing info from public records is almost always safe
-On solitude or seclusion
◦ Reasonable expectation of privacy
-Highly offensive to reasonable person
```
350
Defense against Intrusion
-No reasonable expectation of privacy
◦ Generally can photograph what you see
- Innocent recipient of info
-Consent
- Generally not a defense: newsworthiness
◦ Occasional exception: good motive
351
Contempt of Court Civil:
Coercive
| -Stops when you give in
352
Contempt of Court Criminal:
Punitive
| -Keeps going
353
Can be jail, fines, or both for
Contempt of Court
354
True or False : Justice Department regulations - Attorney General must OK subpoena to journalist (federal subpoenas only)
True
355
Factors for giving subpoena include:
| 
1. Reasonable belief crime has occurred
2. Information essential to investigation
3. Tried to get info elsewhere
4. Subpoena as narrow as possible
356
Justice Stewart’s dissenting opinion (joined by Brennan and Marshall)
Enforce subpoena only if:
1. Probable cause to believe reporter has highly relevant info to probable crime
2. No other way of getting it
3. Compelling and overriding need for the info
357
Reasons to reject waivers
» They can be coerced and insincere
» If source has falsely denied leak, your
testimony may convict him of perjury
» What if only two potential sources? One waives and one doesn’t?
» Public and other potential sources don’t know if waiver is sincere
» You may look like government investigator
358
Is the press special?
» Constitution: no
| » Shield laws: yes
359
Confidential Sources Today: Results in some newsrooms
• Try to get info on the record
•Require an editor’s approval
• Warn source may ID if subpoena or if lies
- Nevada Press Assn.: consider lawyer, contract
• Identify sources as specifically as possible
• Don’t tell colleagues source name
• Destroy article drafts
• Reduce phone, email contact with sources
• Use disposable cell phones
360
1. Subpoenas are a hassle.
Lots of people want to avoid them.
They say they should have privileges.
E.g., accountants, psychics, veterinarians, massage therapists
361
Traditional privileges’ goal: help speaker.
| Journalist goal:
tell story, even if harm speaker
362
Traditional privileges require silence. Journalists want to decide
case by case.
363
__________ can be self-righteous.
Journalists
364
» Most of executive branch
• Exceptions: White House office, National Security Council
- Does reach most White House documents years after president leaves office
» But not courts, Congress
Agencies
365
FOIA Requirements
» Agency must respond within 20 days
» Must release records “promptly”—but doesn’t necessarily happen
• Sometimes expedited for news media
366
Fee waiver
» If material sought “is likely to contribute significantly to public understanding of the operations or activities of government”
367
Fees
» Search and review
• Educational and media: free
• Individual: 2 hours free, then fees
» Copying: 100 pages free for all but commercial
368
Exemptions from FOIA
» National security
• Osama bin Laden death photos
» Internal personnel rules and practices
» Exempt under other laws, e.g. tax returns
» Trade secrets, other confidential business info
» Privileged agency communications, e.g. attorney-client privilege
» Personal privacy
• Extends to families of dead
• Not applicable to corporations
» Law enforcement records if, among other things, disclosure might
• Invade privacy
- Including rap sheets (DOJ v. Reporters Committee)
• Identify confidential informants
» Financial institution information
» Geological information
369
Nevada Public Records Act
» Request must be written
» Can’t get library records that ID users
» Five days to respond
» Appeal to district court if denial
• Priority over most other civil matters
• Government has burden of proving confidential
• Easier to get if material is over 30 years old
370
Agencies required to release records under federal law
» Most of executive branch
• Exceptions: White House office, National Security
Council
- Does reach most White House documents years
after president leaves office
» But not courts, Congress
371
PROTECT Act
– Illegal to offer virtual child porn if trying to fool buyer
• U.S. v. Williams (2008): constitutional
– No 1st Amendment right to propose illegal
exchange
– Illegal to possess visual depiction of any kind (including “drawing, cartoon, sculpture, or painting”) of minor in sexually explicit conduct
• Defined as obscenity
372
Virtual Child Pornography
• Simulated, PhotoShopped, etc.
• Congress banned
• Ashcroft v. Free Speech Coalition (2002): unconstitutional
– Could cover movie about teen sex even though
actors over 18
– Production “records no crimes and creates no
victims” (unlike child porn)
373
Unlike obscenity, child porn
* needn't be obscene,
* or appeal to average prurient interest, • or be patently offensive in display,
* or be considered as a whole,
* or lack SLAPS
* no right to possess
