Final Review

Question 1

What is the FTC, and what role does it play in regulating commercial communication?

Answer 1

The Federal Trade Commission.
To prevent business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive princess; and to accomplish this without unduly burdening legitimate business activity.

Question 2

What are the basic rules that the FTC applies in regulating deceptive advertising?

Answer 2

1. There must be a representation, omission, or practice that is likely to mislead the consumer.
2. The practice is evaluated from the perspective of a consumer acting reasonably in the circumstances.
3. The practice must be a “material” one, meaning it is likely to affect the consumer’s conduct or decision with regard to the product or service.
   - People must be fooled by it and actually buy it

Question 3

Valentine v. Chrestensen

Answer 3

• Handing out advertisements and a cop stops him because it was not allowed
• Asked him to go home. Only political messaging can be passed out in pamphlets.
• He puts a political message on the back against the cops
• He was arrested
• Court rules that commercial speech is not protected by the first amendment

Question 4

Bigelow v. Virginia

Answer 4

• Newspaper ad about abortion clinic in NYC- if you want an abortion come to NYC we will help you
• In virginia there were strict abortion bans- no ads for abortions
• Bigelow, editor, is convicted for this
• Appealed to the supreme court
• Court says the ad contained info that was in the public interest so it was constitutionally protected free speech

Question 5

Central Hudson Gas and Electric v. Public Service Commission

Answer 5

• Prohibited utility companies from promoting and encouraging electricity use
• Supreme court hears the case and says the bill is well intentioned but is too prohibited
• Creates a four part test

Question 6

Central Hudson’s Four Part Test

Answer 6

1. Is the content of the ad truthful and concerned with a lawful activity?
2. Does the government have a legitimate and substantial interest in restraining the message?
3. Does the regulation directly advance the government’s asserted interest?
4. Is there a “reasonable fit” between the goals of the restriction and the means chosen to achieve those goals?

Question 7

What is the CAN-SPAM Act? How did it apply to internet spam?

Answer 7

• Controlling the Assault of Non-Solicited Pornography and Marketing Act
• This applies to internet spam because it requires that the sender is accurately identified, the content of the message is clearly labeled, and the recipient is given the option to opt-out of any future spam.

Question 8

What is prior restraint? How does it conflict with post facto punishment?

Answer 8

Prior Restraint: Stopping a message before it is communicated
Post Facto Punishment: Allowing a message to be sent, but punishing the communicator afterward

Question 9

Near v. Minnesota

Answer 9

• Published anti semetic stuff
• Charging local jewish community as criminals and police are protecting them
• Enacted statewide prior restraint laws
• Supreme court sided with publishers
• Free speech is not absolute but it is more sensible to punish when people make the utterance
• Post facto punishment of free speech is far more constitutional than prior restraint
• Ruled that it is more important to let people print and say things than it is to protect police officers who are offended by stuff people say

Question 10

Lovell v. Griffin

Answer 10

• Jehovah’s Witness passing out leaflets
• Violating law for passing out stuff without permission
• Supreme court said that law is unconstitutional

Question 11

Freedman v. Maryland
How did the court evolve on deciding about prior restraint of film? How did their position allow for for a kind of a licensing system? When and why did this licensing collapse?

Answer 11

• The legacy of Freedman v. Maryland (1965): the court ruled that film permit systems should follow new rules concerning:
• Burden of proof
• Fixed time periods
• Judicial review
• Cinemas had to go through certain licenses in order to show the film
• Maryland sides with Freedman
• Not the burden of proof for the film house to show the movie is not violating any laws
• Licensers have to prove it now
• Must expedite review process - probably a couple of weeks
• Licensers could no longer sit on films
• Turned down movies and can petition for a reconsideration
• Film changes to a system of self regulation

Question 12

What were the Pentagon Papers, The Progressive’s H-Bomb recipe, and the WikiLeaks scandal, and what were the main findings about how prior restraint applied in each case?

Answer 12

Pentagon Papers: manuscript on the history of the vietnam conflict. Supreme court permitted the continued publication.
H-Bomb Recipe: an article on how to make an H-Bomb. was published anyways.
WikiLeaks: began publishing secret documents about the war in Afganistan. No prior restraint was used however those involved were arrested

Question 13

What are government secrecy contracts? How have they held up in court, especially to silence former CIA operatives who wanted to write tell all books?

Answer 13

• contracts employees sign once they start working for the government that swears them to secrecy
• the book got published, but many sections were marked out by the government

Question 14

Davis v. Massachusetts

Answer 14

• Commons: belong to everyone in the city
• Boston Commons case
• Davis went there to preach but didn’t have a permit
• Gets issued a fine cause he is disturbing the public
• Court sided with massachusetts
• Can the state limit free speech based on time, place, or manner?
• Public spaces can be regulated by local authorities if those regulations are fair

Question 15

Richmond Newspapers v. Virginia

Answer 15

• After a series of mistrials in a murder case in the state of Virginia, a trial judge closed the trial to the public and the media.
• Supreme court said that court rooms must remain open to the public
• The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas.

Question 16

Texas v. Johnson

Answer 16

• Greg Johnson is protesting in 1984
• Hates Ronald Reagan so he burns a flag in a public area and gets arrested
• Takes place in Texas and Texas is RED af
• Desecrating venerated objects
• Gets a one year sentence
• Court rules in favor of Johnson :p
• Flag burning is ok cause its the ultimate act of freedom

Question 17

What are the basic standards for assessing time, place, and manner restrictions?

Answer 17

• Can the restriction be justified without reference to the content of the speech?
• Is the restriction narrowly tailored to serve a significant government interest?
• Does the restriction leave open ample alternative channels of communication?
• If yes to all three above, the restriction is constitutional.

Question 18

What is the rule of “compatible use” in free speech cases pertaining to place and protest? How has the rule generally been applied to demonstrating on state government property, courthouses and jails?

Answer 18

• Someone was protesting school actions and was blaring music very loudly
• Police said it was a disruption so they arrested the protestors
• Court upheld conviction
• Can speech be protected if it is incompatible with the time and place?
• You can do something other people dont like as long as you don’t disrupt

Question 19

Cox v. New Hampshire

Answer 19

• A New Hampshire state statute prohibited parades, processions, and open-air gatherings in public spaces without a special license granted by the town selectman or licensing body. On July 8, 1939, Willis Cox, Walter Chaplinsky, John Konides and nearly 80 others gathered in a hall in Manchester, New Hampshire with the purpose of conducting an “information march” during which they would carry signs and hand out leaflets. The group did not apply for a permit. They were convicted in municipal court for violating the statute prohibiting unlicensed parades.
• court ruled that prohibiting this assembly is not an infringement on first amendment rights

Question 20

Perry Education Association v. Perry Local Educators’ Association

Answer 20

• The Perry Education Association (PEA) won an election against the Perry Local Educators’ Association (PLEA) to serve as the sole union representing teachers in Perry Township, Indiana. As part of the collective-bargaining agreement reached between PEA and the Board of Education of Perry Township, PEA obtained exclusive rights to use the internal school mail system and PLEA was denied access. PLEA contended that denying their members use of the mail system violated the First Amendment and the Equal Protection Clauses of the Fourteenth Amendment.
• court ruled that given permission to one union was allowed

Question 21

What is the O’Brien test for regulations on symbolic expression? Make sure you can apply it as necessary.

Answer 21

• Is the regulation within the power of the government?
• Does the regulation further an important or substantial government interest?
• Is the government interest unrelated to the suppression of free expression?
• Is the incidental restriction on First Amendment freedoms no greater than is essential to furthering that interest?
• If yes to all the questions above, then the symbolic speech is protected.
• O’brien was convicted for burning his draft card

Question 22

How has the court viewed free speech rights for those in the military? For instance, how has the court ruled on military members being punished for anti-war expression, soldiers distributing printed materials on campus, and soldiers challenging dress codes?

Answer 22

Military gets no free speech rights. They are required to what is asked of them and not question authority.

Question 23

Tinker v. Des Moines Independent Community School District

Answer 23

- Kids wore black armbands to protest the vietnam war and the school banned them. Court sided with students 
The Disruption Rule: “But conduct by the student, in class or out of it, which for any reason… materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech”

Question 24

Bethel School District v. Fraser

Answer 24

• Fraser goes to pep rally and gives a speech
• The speech is inappropriate (sexual innuendos)
• Gets suspended
• Students vote fraser for the class speaker at graduation
• Principal said nooooooo
• court says the school is allowed to make this decision

Question 25

How has the Supreme Court ruled on the concept of the “open forum” on private property, especially in cases of residential property, company towns, and shopping centers?

Answer 25

• open forum is allowed in company towns
• open forum on residential property is allowed unless the property is an apartment complex, or has a homeowners association
• court is unwilling to extend free speech protection to shopping centers.

Question 26

Hazelwood v. Kuhlmeier

Answer 26

• “Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
• Students were going to publish content about teen pregnancy and divorce so the school banned the publication
• The students went to the law and sued the school
• Lower courts sided with the students
• Supreme court sides with the school

Question 27

What is copyright? What rights does it grants its owners?

Answer 27

• Copyright is a protection of the creative works of the people who originally created it
• Protects one’s ability to reproduce the protected work, create derivative work, distribute copies of your work, ability to perform works in public, how the works will be displayed

Question 28

How has the court generally viewed teachers’ free speech rights in the classroom (or their academic expression) and in society at large (or their extramural expression)?

Answer 28

• the classroom is the ‘marketplace of ideas’ so teachers are allowed to talk about controversial topics

Question 29

What is the idea-expression dichotomy in copyright law? Why is that distinction sometimes difficult to maintain in case law?

Answer 29

• Copyright was developed in order to create an economic incentive for creativity
• Copyright protects an expression of something but not an idea of something

Question 30

How has the court viewed prisoners’ First Amendment rights, particularly in cases dealing with censorship of prison newspapers, criminals’ profiting off publishing memoirs about their crimes, and prisoners accessing certain literature in prison?

Answer 30

• prisoners have greater freedom to send mail than to receive it
• newspaper censorship while frowned upon, is allowed in prisons
• prisoners are allowed to profit from writing about their crimes
• prisoners are not allowed access to newspapers, magazines, and personal photographs

Question 31

Metro-Goldwyn-Mayer Studios v. Grokster.

Answer 31

• Inducement Rule: “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties”
  Copyright holder must prove 3 things
• Technology allows a direct infringement to happen
• Inducer has taken steps to encourage the copyright violation
• The inducer had intent to make it happen

Question 32

Elekctra Records v. Gem Electronic Distributors

Answer 32

• a record shop rented sound recordings to customers who would also purchase blank tape and then use a recording machine on the store premises to copy the rented recording onto the blank tape.
• Secondary liability

Question 33

UMG Recordings v. MP3.com

Answer 33

• MP3.com was providing a digital copy of a song if the user proved they already owned the CD
• UMG Recordings sued them for copyright infringement
• courts sided with UMG recordings and required MP3 to take down all disputed songs.
• fair use does not apply

Question 34

A&M Records v. Napster

Answer 34

• napster allowed users to share MP3 files on their computers with other napster users
• got sued for copyright
• courts sided against napster

Question 35

What is the Freedom of Information Act (FOIA), and what does it apply to? What are the important exemptions under FOIA?

Answer 35

• is a federal freedom of information law that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request.

Exemptions include documents dealing with:

• National security
• Agency personnel rules and practices
• Records covered by other federal laws
• Trade secrets
• Privileged government communication
• Confidential personnel and medical files
• Confidential law enforcement records
• Records concerning regulation of financial institutions
• Oil well information

Question 36

How does one use FOIA?

Answer 36

1. Determine the source of records
2. Describe what you want
3. Write your letter
4. Address your letter correctly
   - write “Attention: Freedom of Information/ Privacy Act Unit

Question 37

How does the Federal law apply to states?

Answer 37

• FOIA only applies to federal government. However, all 50 states have open-record laws. Each state interprets the laws differently

Question 38

What is the Fairness Doctrine and the Equal-Opportunities Law? What do they require?

Answer 38

The Fairness Doctrine
- Talking about politics on the radio must be done fairly and cover both sides
The Equal-Opportunities Law
- Broadcasters providing free media coverage to one political candidate must give the same time to their opponents

Question 39

Miami Herald Publishing Co v.Tornillo

Answer 39

• The Miami Herald published an editorial where they criticized Pat Tornillo
• Tornillo wanted them to publish his response under the right-to-reply statute
• supreme court ruled that mandatory access to the press is prohibited by the constitution

Question 40

What are the traditional rationales for free speech? In other words, be able to articulate: the philosophical reason, the political reason, and the individual reason.

Answer 40

The Philosophical Reason: Free speech is vital for the search for truth. Censored ideas might not always be wrong. The truth is sometimes just someones opinion. The truth is only stronger when it’s tested. All opinions have some truth so they are all worth defending

The Political Reason: Liberty and democracy can only exist when free and open discussion exists. Serving as watch dogs over the government

The Individual Reason: Human dignity itself relies on free speech. Life is only worth living when we have the right to speak our minds

Question 41

What was the three-part public forum rule, as developed in the Perry Education Association case?

Answer 41

• Quintessential public forums ******* TEST QUESTION (Short Answer)
  Forum created with the ideals that it was designed for the public to use free speech at
  Ex. Parks, amphitheaters, outside government buildings, public squares
• Public property that the state has opened for expressive activity
  Ex. The union, classrooms
• Public property not designated for a forum of public communication
  Ex. Library, private offices,

Question 42

Hague V. CIO

Answer 42

• CIO is a labor union
• Mayor is sitting on the permit for the CIO so that they can’t protest
• Is this constitutional?
• Court sides with CIO
• Public spaces are meant for the public so if they decide to assemble, they can do so.