CM481 Final Review

• Prior restraint


  censorship imposed by government on expression, before expression takes place.
• Unprotected speech


  DIFFERENT from illegal speech (speech that goes against the law, irrespective of protected or unprotected) , just means not protected by first amendment
• Ad-hoc Balancing


  case by case; balancing Potential harm v.s. Value of speech. Tough to administer with little consistency.
• Class Balancing


  certain classes of speech have never been thought to raise constitutional issues. But this raises definitional issue and can produce counter-intuitive results
• 3 Part Miller Test (Obscenity) (ON EXAM)

  1) Whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest

  2) Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law

  3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value
• Defamation


  statements that can harm your reputation. 3 elements are statement, identification, publication.
• Common Law Defamation Defenses


  statute of limitations, truth, privilege of participant, privilege of reporting, fair comment and criticism, consent (absolute), right of reply or self-defense, anti-SLAPP defense, community of interest
• Definition of Broadcast Indecency (ON EXAM)

  Whether the work depicts/describes in a patently offensive way sexual manner specifically defined by the applicable state law. (middle third of Miller)
• The Communications Decency Act (CDA) (ON EXAM)


  Amendment concerned about pornography and other sexual and indecent material on the internet reaching minors.

  
  

  It included a provision to verify the age of site visitors.
• Children's Internet Protection Act (ChIPA)


  - addresses concerns about children's access to obscene or harmful content on the internet

  - imposes requirements on schools and libraries

  - more?
• Limitations of Children's Internet Protection Act (ChIPA)


  Federal funding is limited to those libraries that install filtering software.
• What are the three basic forms of an FTC cease and desist order? (ON EXAM)

  1. Cease and desist

  2. Affirmative disclosure

  3. Corrective advertising
• What are the four factors to be considered by a court evaluating a fair use defense in a copyright infringement case?

  1. Nature of copyrighted work (ex. is it fictions vs historical narrative)

  2. Purpose of the use

  3. Amount and substantiality of the work used in relation to the work as a whole (how much did you take? → qualitative or quantitative)

  4. Effects on the value of or the market for the copyrighted work (i.e. How much damage did you do to the copyright holder?)
• 5 Types of Trademark

  1. Generic

  2. Not Found to be Generic

  3. Descriptive Marks

  4. Suggestive Marks

  5. Arbitrary Marks
• Indecency

  Portrays sexual or excretory organs or activities in a way that does not meet the three-prong test for obscenity.
• Political Speech vs. Commercial Speech vs. Obscene Speech

  Political: Most Protected

  Commercial: Less Protected

  Obscene: No protection
• Three Prong test


  Applied when commercial speech is not false or misleading:

  1. substantial government interest

  2. restriction directly advances government interest

  3. restriction is narrowly drawn
• Copyright

  System of protection for literary work or art that you have created
• Copyright Act of 1976


  Grants protection to original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or communicated directly or with the aid of machine or device (protects literature, music, dramatic, pictorial, sound)
• Rights of Copyright


  - Right to repair derivative works based on copyright work (sequels, diff medium) ○ Right to distribute copies of the copyrighted work to others

  - Right to perform the work publicly, right to display the work publicly

  - Right to display the work publicly through digital/audio transmission

  - Right to reproduce
• Children's Privacy Protection Act (CPPA)


  Must have parental consent before collecting personal information for children under 13
• Central-Hudson test

  Tests whether an expression is protected by the First Amendment.

  
  

  Determining factors:

  1. Concern lawful activity and not be misleading.
  2. Whether the asserted governmental interest is substantial.
  3. Whether the regulation directly advances the governmental interest asserted.
  4. Whether it is not more extensive than is necessary to serve that interest.