Freedom of Expression

Question 1

Daily Mail Test

Answer 1

Test to determine whether public disclosure of private facts is OK

• Info was truthful
• Info was lawfully obtained
• Info a matter of public significance
• Govt. had a need of the highest order
• Regulation was narrowly tailored

Question 2

Dignity Torts

Answer 2

• Defamation
• Intentional Infliction of Emotional Distress

Question 3

Privacy Torts

Answer 3

• False Light (closely related to defamation) - when a publication is presented in such a way that would lead others to believe its true
• Appropriation of ones likeness- take a picture of someone and try to exploit them for commercial purposes
• invasion of privacy-
• public disclosure of private facts- when someone publishes a matter about someone else that is intensely private and the public would regard as outrageous (Daily Mail Test)

Question 4

Public Figure

Answer 4

public figure- a person who has thrust themselves into the vortex of a public issue or engages the public’s attention.

Two types-

• general purpose public figure-
  
  • person who has achieved pervasive fame or notoriety
  • person who is public for all purposes in all contexts
• limited purpose public figure-
  
  • person who is public for only a limited range of issues
  • a person who injected themselves into a public controversy; exposed to persistent notoriety specific to that one incident
  • must assume some special prominence in the resolution of the public question
  • requires some act on the part of the person to create a ‘vortex’ that he is ‘sucked’ into.

Question 5

Public Figure Rule

Answer 5

Rule-

• In an action for damages, a private person may recover for actual damages (negligence standard) but must prove actual injury.
• If private person wants to recover punitive damages, they must show actual malice.
• The majority based its decision upon the distinction between a public official, subject to the New York Times decision and a private individual.

Question 6

Potentially Proscribable Categories of Speech

Question 7

Free-Market of Ideas Principle

Answer 7

* free market of ideas’ principal- current theory
*
* when you go out in to society, you’re exposed to many thoughts and positions, and you have to decide on your own
*
* best way to determine, have an open and vigorous debate
* this debate often involves exaggeration, cursing, ad hominem attacks, and nastiness
* we need to have faith in people; not protect them from bad ideas because people can generally figure out the good from the bad
* look to whether something is conduct or content
*
* when it comes to speech, there are some things so closely associated to speech that government can’t regulate the conduct
* state can generally regulate conduct, but can’t regulate the content of speech
* government can generally regulate conduct if the proscriptions are neutral
* but if government is attempting to regulate content of speech, this is generally not OK
* look to whether it’s ‘content-neutral’

Question 8

Two-Level Theory (Historical)

Answer 8

* two-level theory- view of the 1st amendment that was in effect upto mid 20th century
*
* speech that the constitution protects
* speech that is invisible to the constitution and can be freely regulated
*
* fighting words
* obscenity
* defamation
* these could be wholly or partly proscribed without appeal to the constitution

Question 9

Obscenity Test / Miller Test

Answer 9

This is the new standard for obscenity. A three-prong test:

Obscenity is not speech (and thus not protected) within the legal definition because it’s utterly without any redeming social value.

How do you define the standards to ID obscene material.

1. whether the average person, applying contemporary community standards [not national standards, as some prior tests required], would find that the work, taken as a whole, appeals to the prurient [lustful] interest; (jury determines this based on state law)
2. whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
3. “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Within second prong- conduct has to be specifically defined by the statute OR authoritatively interpreted by a state Supreme Court

Third prong is here to protect textbooks/medical journals

Thus, the Constitution means the same thing everywhere, except for what constitutes obscenity, which is left to the states to decide based on state law.

Question 10

Three ‘Speech’ Areas the Free Market Principal can Proscribe

Answer 10

* defamation
* fighting words
* obscenity

Question 11

Fighting Words Test

Chaplinsky

Answer 11

What constitutes ‘fighting words’ is a matter of fact for the jury. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include “fighting words,”-words that inflict injury or tend to excite an immediate breach of the peace. ‘Fighting words’ are probably more limite today, based on Cohen.

To determine fighting words today

• compare imminence of Brandenburg (KKK rally)
• look to what to Cohen held (directed to a specific person and possible statute over breadth)
• totality of the circumstances test- what men of common intelligence would understand would be words likely to cause an average addressee to fight

Question 12

Fighting Words- Over Breadth

Answer 12

No specific test for when a statute is over broad, just some factors

metric for measuring over breadth-

• the over breadth must be substantial
• when it reaches a substantial number of impermissible applications
• would chill permissible activity and free speech

Standing is part of the over breadth challenge; usually no standing on behalf of others; no injury in fact

Question 13

State Action Doctrine

Answer 13

• all provisions of the Constitutaion (except 13th Amendment) apply only to ‘state actors’.
• citizens cannot bring an action alleging a Const. violation against a private party (except 13A)
• a public function is a power traditionally reserved for the state

Question 14

4 Functions a Private Actor can become State Actor

Answer 14

• gov function: private party exercises powers traditionally & exclusively reserved for states
• state involvement: private action is facilitated w/ state assistance
• state encouragement: government actors encourage private parties to act in a certain manner
• state entwinement: state and private parties become essentially joint venture; like partnership, two or more parties working together to facilitate a common cause and share profits and losses

Question 15

Freedom of Expression- Basics

Answer 15

• 1st A Text- “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assembel, and to petition the Government for a redress of grieviences
• 1A Theories
  
  • Two level theory- some categories are not an exential party of any exposition of ideas, and are of such slight social value that they can be proscribed
  • Modern theory- marketplace of ideas- no false ideas and debate will weed out the weak ones; cream rises
• Substantive vs. Procedural Due Process- government can’t proscribe you conduct in a manner that would conflict with traditional notions of ordered liberty