Freedom of the Press

Question 1

Prior Restraints

Answer 1

Prior restraints are highly constitutionally disfavored, but not prohibited entirely. (Near v. MN). There is a strong presumption against the constitutionality of prior restraints on publication. The government carries a heavy burden to justify the imposition of such a restraint. (NY times v. United States). There is no first amendment right that protects journalists from revealing their confidential sources or information in response to a grand jury subpoena. (Branzenburg)

Question 2

NY Times v. Sullivan

Answer 2

In NY Times v. United States, Ellsberg leaked the Pentagon papers to the NY Times and WA post. The Second Circuit issues an injunction to prevent the newspapers from publishing any further. The Court ruled that the prior restraints were unconstitutional and the government did not meet its heavy burden since the events in the papers already happened. National security was not of immediate importance.

Question 3

Branzenburg v. Hayes

Answer 3

In Branzenburg, 3 journalists are subpoenaed to testify about the identity of a confidential source or present unpublished information or material before a grand jury. All 3 argue that the First Amendment protects their rights to shield confidential sources and information. The Court held that the reporters must testify.

Question 4

Public Criminal Trials

Answer 4

There is a First Amendment right of public access to criminal trials. When determining whether the right attaches, courts should look to (i) history, or whether the proceeding was traditionally open or closed to the public; and (ii) logic, or whether there are good policy justifications for opening the proceeding. (Richmond Newspapers).

Question 5

Defamation

Answer 5

Defamation Elements:
(1) A false statement purporting to be fact
(2) Publication or communication of that statement to a third person
(3) Fault amounting to at least negligence, and
(4) Damages, or some harm caused to the reputation of the person or entity who is the subject of the statement

Question 6

If P is a government official or someone running for office

Answer 6

Must show Actual Malice: that the statement was printed with reckless disregard for the truth (NY Times v. Sullivan)

Government Official Definition: Someone who holds a position of such apparent importance that the public has an independent interest in the qualifications and performance of the persons who holds it (low level official does NOT quality- Rosenblatt)

Question 7

If Public Figure:

Answer 7

Someone who achieves notoriety from (i) their achievements or (ii) the “vigor and success with which they seek the public’s attention”. 3 types of public figures.

General Public Figure: General fame and notoriety makes someone public figure for all purposes (Gertz)

Limited Purpose Public Figure: Someone who injects themselves into public controversy to influence resolution of issue. They are a public figure for purpose of a particular issue but not all issues (Gertz)

Involuntary Public Figure: Someone who does not insert themselves into the public sphere, but they play a sufficiently important role in an important public topic that actual malice applies. Rare. (Gertz).

Question 8

If Private Figure:

Answer 8

Someone who has not voluntarily thrust themselves. to the forefront of public controversy. Standard is up to the states. Can be up to actual malice. Gertz was considered a private figure and did not meet the actual malice standard. (Gertz v. Welch).

Question 9

Dominion Voting v Fox:

Answer 9

Dominion Voting v. Fox→ Dominion settles claims for $787M. Other defamation claims still standing
Facts: Fox news falsely reports that Dominion Voting Systems’ voting machines converted votes for Trump into Votes for Biden. Dominion sues. During discovery, emails and text messages reveal that Fox reporters and executives knew the allegations were false but reported them anyway.
Future of Sullivan: What are the implications of this case? What should the future of Sullivan be?

Question 10

Berisha v. Lawson

Answer 10

Berisha v. Lawson→ Jury verdict can stand. Gertz is a private figure.
Facts: A writer publishes a book that describes Shkelzen Berisha as a member of the Albanian mafia. Berisha sues for defamation. The court holds that Berisha is a limited public figure and he cannot prove actual malice. He appeals, arguing that Sullivan should be overturned.
Justice Thomas: Sullivan should be overturned because (i) it is inconsistent with historical practice and the drafters understanding of the first amendment and (ii) it has negative policy effects, including allowing for the spread of lies and disinformation
Justice Gorsuch: Sullivan should be overturned because that media landscape has changed