Media Law Flashcards
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Sedition Act
Speech critiquing the government was prohibited (per John Adams)
Schenck v. U.S. (1919):
At Stake: Spread of anti-draft leaflets calling for peaceful protest. Arrested and convicted for violating the Espionage act.
Outcome: SCOTUS upholds conviction and Holmes dissents.
Impact: “Clear and present danger” test. The First Amendment does not protect speech that indicates clear and present danger
Abrams v. U.S. (1919):
At stake: Russian immigrants distribute leaflets calling to denounce WWI efforts. Faced 20 years in prison and threatened the right to freedom of the press.
Outcome: Speech is more limited in times of war but the speech here did not pass the clear and immediate danger test (according to Holmes). SCOTUS upholds conviction.
Impact: Marketplace of Ideas. Find the most original, truthful, and useful information as a “buyer.”
Gitlow v. NY (1925):
At stake: Gitlow distributes a left-wing manifesto calling to overthrow the government and practice socialism. He is arrested for violating the criminal anarchy law in NY that prohibits speech about advocating violent efforts to overthrow the government.
Outcome: NY is allowed to uphold the law. The government can punish speech that threatens its basic existence because of the national security implications.
Impact: “Bad Tendency Test.” The immediate danger is nonetheless real and substantial because the effect of a given utterance cannot be accurately foreseen. State governments cannot be more restrictive than the federal government.
Burnside v. Byars (1966):
At stake: Students wear “one man, one vote” buttons to school and the principal bans them. Violates freedom of symbolic speech and risks the ability to wear any sort of symbolic speech
Outcome: The students have the right to wear the buttons and win the case
Impact: Viewpoint neutrality. You cannot favor one over the other (e.g. if you can wear other buttons, you can wear the vote button. Otherwise it is no longer viewpoint neutrality)
Brandenburg v. Ohio (1969):
At stake: Brandenburg, KKK leader, makes a speech at a rally saying the government is suppressing the white race. He was arrested for violating Ohio state law prohibiting speech about overthrowing the government. The violation of the First Amendment is at stake.
Outcome: The court decides that the Ohio law does violate Brandenburg’s First and Fourteenth Amendments and his rally speech is protected.
Impact: The birth of the Brandenburg test. (1) Is the speech causing imminent lawless action? (2) Is the speech likely to incite or produce violent action?
Chaplinksy v. New Hampshire (1942):
At stake: Chaplinksy says offensive things in public about the town marshal like “god-damned racketeer” and “a damned fascist.” He was arrested under a law that prohibited intentionally offensive speech.
Outcome: Chaplinksy’s ruling is upheld. He is found guilty of the use of fighting words as his speech caused direct harm to his target and could have led to imminent lawless action or an immediate breach of peace.
Impact: Shapes the lines of “fighting words” and gives examples as to what an immediate breach of peace concern looks like.
Cohens v. California (1971):
At stake: Cohen wears a jacket saying “fuck the draft” and is arrested for fighting words. The regulations of protected speech are being questioned
Outcome: Cohen’s jacket is protected speech, not fighting words. Though the speech is vulgar and potentially offensive to some, it is not incitement nor a true threat
Impact: “one man’s vulgarity is another man’s lyric.” Protects vulgar speech and symbolic speech in peaceful manners. Helps shape the blurred lines of what fighting words are.
Masson v. New Yorker (1991):
At stake: Editing laws, altering the speech of an interviewee/recording for the sake of correcting grammar or cleaning up speech
Outcome: Writers and editors are allowed to deliberately alter quotes as long as the substance/meaning of the quote is not changed
Impact: Allows editors to correct grammar and make certain language more appropriate for publication. On the other hand, this protects interviewees from having their reputations at risk because writers are not allowed to purposely falsify their words.
Tinker v. Des Moines
At stake: Students wear black arm bands to school to protest violence in Vietnam war, freedom of expression is at stake.
Outcome: Students are suspended until the planned end date of their protest and district court dismisses the case.
Impact: Their rights are being violated, wearing the armbands is protected by the first amendment. SCOTUS upheld that the armbands represented pure speech and they did not lose those rights despite being on school grounds. Not enough that students might get distracted, viewpoint discrimination is not allowed
Snyder v. Phelps
At stake: “Thank God for dead soldiers” and “fag troops” at marines funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress.
Outcome: District judge awards family $5 million but U.S. court of appeals held that the judgment violated the First Amendment’s protections on religious expression. The church members’ speech is protected, “notwithstanding the distasteful and repugnant nature of the words.”
Impact: The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Fighting words doctrine.
NYT v. Sullivan
At stake: NYT published an ad with many factual inaccuracies. Sullivan felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.
Outcome: A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.
Impact: The press has the right to be wrong
Actual Malice
Knowledge of falsity: journalist knows it isn’t true, but still publishes/broadcasts OR Reckless disregard for the truth: harder to define. Plaintiff must prove SIX things:
1) Defamatory language
2) Defamation was about the plaintiff (cannot sue on behalf of someone)
3) Defamation was distributed (published)
4) Fault: defamation was published because of negligence/recklessness
5) Falsity: statement was provably false (important for opinion)
6) Personal harm
Brandenburg test
Is the speech inciting? Is the speech appearing to cause imminent lawless action?
