Media Law Midterm

• The First Amendment protects freedom of speech, religion, press, assembly, and petition.
• Sources of U.S. Law

  1. The Constitution
  2. Statutory Law (legislatures/black letter law)
  3. Common Law/Equity Law (what we brought from England
  4. Administrative Law (executive orders)
  5. Case law (court cases, precedence)
• The perceived intent of the Constitution/BoR framers of the FA guides contemporary FA application and interpretation.
• The First Amendment does not apply to private individuals or entities unless they are acting as agents of the state.
• Three court systems

  1. Trial courts
  2. Appeal courts
  3. Supreme court
• Trial courts do the fact-finding and apply law to settle disputes
• • Appeal courts are the courts that review appealed decisions to ensure that it was a fair process.
  • Decisions on this level change precedent.
  • They UPHOLD, OVERRULE, REMAND cases.
• The Supreme Court decides what is constitutional or not. Their decisions determine the law of the land. It's the highest level of law.
• Seditious libel is any criticism of the government or an official that harmed their reputation. Truth was not a defense because the truth still harmed their reputation. VERY DUMB.
• Trial and acquittal of Peter Zenger, Sedition Act, and Espionage Act were all the beginning of seditious libel. The Sedition Act was repealed in 1921.
• Times v. Sullivan (1964) – USSC reconsidered seditious libel, reevaluating if it contained “actual malice”, a historical end to seditious libel reign.

  
  

  Ad in NYT defending MLK Jr., Alabama Commissioner sought damages under seditious libel.
• Time, place, manner restrictions are a concept that laws regulating the CONDITIONS of speech are more acceptable than those regulating CONTENT.
• Time, place, and manner laws affect right to assemble, part of FA.
• Content neutral laws are enacted to advance a government interest unrelated to speech, to restrict it as little as necessary.
• Public forums are government property held for use by the public, usually for purposes of exercising rights of speech and assembly (ex: public parks, streets, sidewalks)
• Nonpublic forums are government held property that is not available for free speech and assembly purposes (military bases, prisons, airport terminals, private mailboxes)
• Censorship: restricting access to ideas and information
• Strict scrutiny: a test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance a compelling interest.
• Prior restraint - government action that seeks to prevent materials from being published
• Post-publication punishments - punishment given after the content has been published.
• In 1889, Oliver Wendell Holmes Jr. wrote The Common Law about common law in America including torts, property, contracts, and crime.
• Blackstone thought prior restraints were bad, but post-publication punishments were OK, as he was an English jurist who wrote about the doctrines of English law.
• 14th Amendment (1868): All persons born or naturalized in the United States are citizens.

  
  

  Guaranteed equal rights to everyone combined with First Amendment, including former slaves.
• Jurisprudential philosophies about how to interpret and apply the FA

  1. Utilitarianism
  2. Absolutism
  3. Natural Law
• Utilitarianism - greater good for the most amount of people, useful
• Absolutism - dictator has unrestricted powers
• Natural Law - refers to laws of morality ascertainable through human reason
• Common law countries - UK, Australia, New Zealand, Canada
• Authoritarian countries - China, Singapore, Brazil, Myanmar
• Civil Law countries - France, Germany, Italy
• Developing countries - most of Africa, eastern Europe
• Basic line of distinction between "speech" and "conduct"

  • Oral and written communication falls within protected sphere
  • Nonverbal conduct remainst outside the domain.

  Difficulties arise when they combine (protests, picketing, wearing symbols)
• United States v. O’Brien – burned draft card at Boston courthouse, convicted under federal law that says destruction of it is a crime. USSC says it was an unconstitutional infringement of O’Brien’s freedom of speech.
• Symbolic speech — describes actions that purposefully and discernibly convey a particular message or statement to those viewing it
• Arguments for the suspension of freedoms during times of war and other extraordinary circumstances
• Arguments for the suspension of these freedoms in a public school settings (college and universities) and the limits of the FA in educational settings (off-campus, online expression).
• • Age of student, adult or minor
  • Public or private forum
  • Tether/connections (what the institution has control over): Campus Carrier has student journalists paid by the school
  • Disruption to core mission of institution
  • Is it a public forum or something else
  • What kind of censorship (prior restraint)
  • Is it offensive/disruptive/obscene?

  What Courts consider in educational FA cases
• Obscenity - an offensive or indecent word or phrase
• Miller v. California (1973) defined obscenity as "anything that lacks serious literary, artistic, political or scientific value"
• Miller test (outdated)

  • Whether the average person taken as whole appeals to prurient interest
  • Work depicts or describes sexual conduct
  • Taken as a whole lacks serious literary, artistic, political or scientific value.