Media Law Exam 1 Flashcards
absolutist theory
when the 1st amendment says “no law” shall abridge freedom of expression, the framers mean no law. there are no exceptions.
ad hoc theory
developing a definition of freedom of expression on a case-by-case basis. relies too heavily on personal biases and will never have a true definition of the 1st amendment.
preferred position theory
forces the government to bear the burden of proof in any challenging of censorship. court must prove that censorship is justified and not a violation of the 1st amendment.
meiklejohnian theory
expression that relates to the self-governing process must be protected by the 1st amendment with no government interference. expression that does not relate to the self-governing process is not absolutely protected.
marketplace theory
allows all expression and ideas to be put out there, and is called the “truth-seeking rationale for free expression”. if all ideas are expressed, eventually the truth will come forward.
access theory
to make the 1st amendment equal, press should open up to the ideas and opinions of average citizens. if the press won’t do this voluntarily, the government should force such access to the press.
self-realization theory
speech is important to an individual and inherently valuable regardless of its impact on society. encouraging individual freedom of expression is equally as important as it is in politics or press.
Schenck v. U.S. (1919)
- charged under espionage act for speaking against the military draft
- DECISION: upheld conviction and ruled espionage act doesn’t violate the 1st amendment
Gitlow v. NY (1925)
- gitlow was arrested for distributing a “left wing manifesto” that encouraged strikes and class action for socialism
- argued there was no resulting action from the manifesto, and NY law required incitement of concrete action
- DECISION: NY could prohibit advocating violent efforts to overthrow the government under the criminal anarchy law
Whitney v. California (1927)
- whitney was prosecuted under california’s criminal syndicalism act for encouraging the communist labor party of california to effect change through unlawful use of violence
- claimed she did not intend for the party to act that way and did not plan/aid those objectives
- DECISION: affirmed whitney’s conviction and found it did not violate the 1st amendment, showed evidence of criminal conspiracy
Chaplinsky v. New Hampshire (1942)
- chaplinsky was distributing pamphlets supports jehovah’s witness beliefs, attacking other religion and the town marshal
- convicted under a law that prohibited offensive speech in a street or public area
- DECISION: affirmed chaplinsky’s conviction under “fighting words” that can cause direct harm to their target
Dennis v. U.S. (1951)
- communist part leaders were convicted for advocating a violent overthrow of the US gov violating the smith act
- act made it illegal to knowingly conspire the overthrow/destruction of the gov
- DECISION: affirmed convictions of the party, noting the distinction of teaching communist philosophies and actively pursue those ideas, a “clear and present danger” that threatened the gov
Yates v. U.S. (1957)
- leader of communist party in california were tried under the smith act, prohibiting knowingly conspiring the overthrow of the gov by force
- DECISION: court reversed the convictions, distinguishing teaching an abstract principle and advocacy of concrete action to overthrow
Brandenburg v. Ohio (1969)
- brandenburg, a KKK leader, convicted for advocating terrorism as a means of accomplishing reform
- ohio criminal syndicalism law that prohibited such action that encouraged crime, sabotage, violence, etc.
- DECISION: affirmed that the ohio law violated free speech, due to the distinction of inciting “imminent lawless action” and if it is “likely” to incite such an action
Near v. Minnesota (1931)
- near accused local officials of being involved with gangsters, causing minnesota officials for a permanent injunction
- claimed it violated the public nuisance law because it was malicious, scandalous or defamatory
- DECISION: affirmed the statute was unconstitutional because of “prior restraint”, the gov cannot censor a publication in advance
Lovell v. Griffin (1938)
- lovell, a jehovah’s witness, was convicted for selling pamphlets/magazines in violation of a city ordinance prohibiting distribution of any kind without prior permission of the city manager
- DECISION: SC decided it violated the 1st amendment due to “prior restraint”, filtering speech based on city manager’s preference
NY Times Co. v. U.S. (1971)
- “pentagon papers”, nixon administration tried to prevent the NYT and WP from publishing classified defense department documents
- argued that “prior restraint” was necessary to protect national security
- DECISION: in violation of 1st amendment, arguing the publication wouldn’t cause an inevitable, direct, and immediate event threatening the safety of american forces
Gooding v. Wilson (1972)
- georgia court convicted wilson for violating a state statute against abusive language that causes a breach of the peace
- DECISION: in violation of 1st amendment, it was unconstitutionally vague and overbroad
Organization for a Better Austin v. Keefe (1971)
- OBA attempted to coerce keefe’s business to change his tactics by distributing flyers in his town
- obtained an injunction preventing OBA to hand out flyers, argued the pamphlets were merely informational, keefe argued they were invasions of privacy and intimidating
- DECISION: overturned injunction stating that peaceful distribution of pamphlets is directly upheld in the 1st amendment, and is considered “prior restraint” to block that right
Village of Skokie v. National Socialist Party (1978)
- nazi party of america intended to march on the village’s sidewalk, which became common knowledge to the jewish community in the town
- jewish community filed for injunction preventing nazis from marching and displaying a swatiska
- DECISION: reversed decision, on basis that illinois must provide strict procedural safeguards to deny a stay for injunction depriving nazi party of 1st amendment rights
Metromedia, Inc. v. City of San Diego (1981)
- san diego banned most outdoor advertising/billboards to improve city’s appearance, only “onsite” billboards with ad relating to the property located on was permitted
- businesses who owned ad signs claimed ban was unconstitutional exercise of the city’s powers
- DECISION: affirmed conviction, stating the ban’s exception allowing “onsite” ads only discriminated against noncommercial speech
RAV v. St. Paul (1992)
- teens burned a cross on a black family’s lawn, were charged under ordinance that prohibits a display that encourages anger/resentment based on race, religion, gender, etc.
- DECISION: deemed unconstitutional because it “prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses”
Hazelwood School District v. Kuhlmeier (1988)
- school-sponsored newspaper of high school, which the principal found two articles to be inappropriate, and withheld them from publication
- DECISION: court affirmed that the 1st amendment didn’t require schools to promote certain types of student speech
Kincaid v. Gibson (2001)
- university officials confiscated student yearbook, deciding its quality was unsatisfactory, featuring too many images related to current events
- DECISION: same decision in Hazlewood v. Kuhlmeier was used, but stating college/universities were not able to censor material in school publications
Virginia v. Black (2003)
- kkk rally where cross was burned, defendant (black) claimed his actions were not inherently threatening
- prima facie evidence: act itself was proof of threatening/intent to harm
- DECISION: statute deemed illegal because of prima facie, deemed not all actions of cross burning are inherently proof of threatening
Mahanoy Area School District v. B.L. (2021)
- a student didn’t make the cheer team at her high school and posted profane language on her story about the tryouts
- coaches deemed it was in violation of team/school rules and was suspended from the team for a year
- DECISION: school was wrong, conduct happened off campus and they are not allowed to regulate speech off campus
“fighting words”
insulting or provocative words, afforded less protection than free speech
incitement
action of provoking unlawful behavior or urging someone to behave unlawfully
clear and present danger
speech may not be punished unless its expression creates a clear and present danger of bringing about a substantial evil
imminent lawless action
not protected by the 1st amendment if the speaker intends to incite a violation of the law that is both IMMINENT and LIKELY
- brandenburg v. ohio (1969)
prior restraint
suppression of material/publications on the grounds of libel/harmful speech
Congress Sources
Chronological - statutes at large (Stat.)
Topical - united states code (U.S.C.)
Independent Agency Sources
Chronological - federal register (Fed. Reg.)
Topical - code of federal regulations (C.F.R.)
Citations
case name, volume, book, page number, year of decision
RAV v. St. Paul (1992) and Virginia v. Black (2003)
similar cases - burning a cross does not always come with the intent to harm, suppression of speech even though most times it is bad
Dennis v U.S. (1951) and Yates v. U.S. (1957)
similar cases - dealt with the smith act, criminalizing the advocacy for concrete action to overthrow the government
Chaplinsky v. New Hampshire (1942) and Gooding v. Wilson (1972)
similar cases addressing “fighting words”, statutes were too broad and vague
Near v. Minnesota (1931) and Lovell v. Griffin (1938) and NY Times Co. v. U.S. (1971)
similar cases - both deal with prior restraint and the limiting of free speech without a valuable reason
Chief Justice John G. Roberts Jr.
Appointed by President George W. Bush (2005)
Justice Clarence Thomas
Appointed by President George H.W. Bush (1991)
Justice Samuel A. Alito Jr.
Appointed by President George W. Bush (2006)
Justice Sonia Sotomayor
Appointed by President Barack Obama (2009)
Justice Elena Kagan
Appointed by President Barack Obama (2010)
Justice Neil M. Gorsuch
Appointed by Trump (2017)
Justice Brett M. Kavanaugh
Appointed by Trump (2018)
Justice Amy Coney Barrett
Appointed by Trump (2020)
Justice Ketanji Brown Jackson
Appointed by President Joe Biden (2022)
