Pg 41

Question 1

Do people have the freedom of belief under the constitution?

Answer 1

This isn’t a constitutional guarantee but it has developed into a right that is implied from the first amendment’s guarantee and the due process clause

Question 2

What is commercial speech?

Answer 2

Speech that is aimed at creating or completing a commercial activity. The government can regulate or prohibit this if it is false, misleading, deceitful, or it proposes an unlawful transaction or activity.

The government must show it had an important government interest that is furthered in a manner that is no more burdensome than essential. The government ends must be achieved in a reasonable manner

Question 3

Is it OK for there to be some puffing or inaccuracies in commercial speech without the government forbidding it?

Answer 3

Yes

Question 4

If the government wants to regulate commercial speech that isn’t misleading, illegal, or false, what do they need?

Answer 4

A substantial government interest in the regulation that directly or materially advances the interest and the restriction can’t be more than is necessary

Question 5

Is a label that has the alcohol content on a bottle considered to be commercial speech?

Answer 5

Yes

Question 6

What is the test that is applied to commercial speech?

Answer 6

The central Hudson test

Question 7

What is the central Hudson test that is applied to commercial speech?

Answer 7

This allows regulation of truthful advertising about lawful but potentially harmful activity. This is a balancing intermediate standard to figure out when commercial speech should be given first amendment protection. The speech will be suppressed if this test is not met:
– speech or message cannot be false, misleading, or involve an illegal activity
– there must be a substantial government interest
– the regulation must directly advance the government interest
– the regulation cannot be more excessive than is necessary

Question 8

Why would a blanket ban on attorney price advertising in newspapers violate the First Amendment?

Answer 8

Because it’s not the least restrictive means possible to regulate the commercial speech. The government could put time restraints on attorneys, etc.

Question 9

How do you approach commercial speech on an essay?

Answer 9

– was it commercial speech?

– is the speech a commercial representation?

Question 10

How do you determine if something is commercial speech?

Answer 10

Consider the nature of the speaker, if the messages were connected to the product/service/commercial transaction, the format, commercial motivation, if it was intended for a commercial audience, if it’s aimed at consumers, etc.

Question 11

What are the two categories of defamation?

Answer 11

Libel and slander

Question 12

What is defamation?

Answer 12

Saying or writing an untruth that damages another person’s reputation

Question 13

What are different categories of defamation?

Answer 13

• Public official
  – public figure
  – private person public matter
  – private person private matter

Question 14

What is involved in the category of defamation that includes public figures and public officials?

Answer 14

People have first amendment rights to express themselves about others including public figures, issues of the day, celebrities, and politicians. Public figures have an additional burden of proof to show actual malice in the making of a false or defamatory statement.

Question 15

What is actual malice in relation to defamation?

Answer 15

A statement was made with actual knowledge of its falsity or reckless does regard about its falsity

Question 16

Is it hard to win defamation cases?

Answer 16

Yes, it is impossible to prove falsity for opinions

Question 17

What is the test that is applied to defamation regarding public officials or figures?

Answer 17

New York Times test

Question 18

What is the New York Times test?

Answer 18

• false statement

- made with malice: knowledge it was false or reckless disregard about its falsity

Question 19

What does it mean to make a defamatory statement with reckless disregard about its falsity?

Answer 19

There must be serious doubts or a high degree of awareness of the probability of falsity. Just negligence is not enough

Question 20

If you rely on someone’s affidavit and you don’t verify the charges in it, is that considered to be reckless disregard for truth or falsity under the New York Times test for defamation?

Answer 20

No

Question 21

What is the standard for defamation?

Answer 21

Clear and convincing evidence

Question 22

What does it take to be considered a public figure?

Answer 22

There must be clear evidence of fame and notoriety in the community or assumption of roles of special prominence in affairs of society. This includes candidates for public office and non-elected positions. It applies to government employees that have substantial responsibility and control over the conduct of government affairs. This also includes any employee with discretionary power in matters of public interest.

Question 23

What are the different types of public figures?

Answer 23

– Public figure for all purposes

– someone that was thrust into the forefront of a public controversy

Question 24

If you get public funds for something does that make you a public figure? Like a scientist that got a government grant?

Answer 24

No

Question 25

What is an example of someone that is not considered to be a public figure even though they are widely known?

Answer 25

A lawyer for slain boy’s family, a rich lady going through a divorce, etc.

Question 26

In order for something to be defamation, it must be what?

Answer 26

A fact. It cannot be an opinion, epithet, hyperbole, etc.

Question 27

What is the defence to defamation?

Answer 27

Truth