Law and Ethics of Mass Comm

If the first amendment protects anything its..

political speech

If the government prohibits anything it’s..

Prior restraint

List the five freedoms of the first amendment

1. Religion- establishment and exercise

2. Speech

3. Press

4. Peaceful assembly

5. Petition

What does the first amendment protect?

Political speech

What does the first amendment not protect?

Libel, copyright infringement, obscenity, national security/sedition, and privacy violations

What is the 4 step process?

1. Read the law

2. Look for precedent

3. Look at the law-givers (legislators)

4. Look at history of the times

Compelling interest test

1. Burden on government 

2. Law is unconstitutional 

3. Prove compelling interest- a government interest of the highest order; an interest the government is required to protect

Rational basis test.

Federal; used by SCOTUS to apply in any circumstances in which a law’s constitutionality is questioned. 

1. Burden of the challenger

2. Presume law is constitutional 

3. The law lacks a rational basis

What is the Brandenburg Test? What case was it established?

The brandenburg test punishes criticism of state government. 

1. Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” or if it is “likely to incite or produce such action.”

It was established with Brandenburg v. Ohio.

Substantial reason test

1. YES, BUT - regulate fully protected political speech but need compelling interest. 

2. SOMEWHAT (intermediate level) - example: commercial speech

3. NOT - this is all content-based

4. Time/place/manner - Content-neutral; expressive conduct

5. Compelling - substantial reason; conduct should be regulated over speech 

6. Secondary rights- access to information

Prior restraint

the censorship of a publication prior to its release by the government

Direct ways to achieve prior restraint:

1. Use force

2. Take away license 

3. Law

4. Court order

5. Censor

6. Government own raw material/media 

7. tax

Reasons why prior restraint can be accepted:

1. National security - the only one that works in time of war

2. Decency

3. State security

Sources of Law

1. Constitutional

2. Statutory- by legislature

3. Regulatory- example: Federal Trade Commission

4. Common law- by courts

For criminal law, you need:

1. State of mind

2. Act

3. Penalty

3 ways to plead: 

1. Not guilty 

2. Guilty

3. “no contest” - I choose not to defend myself. It’s used when the defendant suspects a guilty plea will be used later in a court case

Due process

the steps the government must follow to take a person’s “life, liberty or property” (5th and 14th amendments)

2 approaches to the constitution

1. Originalist: original meaning (conservative)

2. Alternative: Constitution is living; they took to see what they were trying to accomplish and apply to modern times.

Jurisdiction

1. General 

2. Limited (example: court marshall)

TRO

Temporary restraining order

3 laws Schenck broke

1. Conspiracy to violate espionage act

2. Conspiracy to put things illegally in the mail 

3. Mailing his crap

1917 Espionage Act

Outlaws false statements in order to hinder the military draft or endorse military disobedience

What concept did the Abrams case bring about?

Concept of free market place of ideas

Why did the defendants in the Abrams case lose?

Because the leaflets were an appeal to violent revolution. The leaflets had a tendency to encourage war resistance and to curtail war production.

Gitlow v. New York

Held that federal guarantees of free speech and press also applied to the states.

Ruling for Gitlow v. New York

Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14 amendment). States may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rational of the majority has sometimes been called the “Dangerous tendency” test. 

NY times v. united states (pentagon papers)

Recite the description

Plurality opinion

Less than a majority vote on an opinion of the court; does not have the binding legal force of the majority opinion and does not have to be treated as precedent in later decisions. 

Per curiam opinion

Like a committee report; it’s what carries this case

Ruling for the pentagon papers

the court held six to three in favor of the plaintiffs, vacating the stays and permitting publication to preceed. 

United States v. Washington Post case (1971)

The Washington post was able to continue publishing the pentagon papers. Remember why. 

Near v. Minnesota case:

Supreme Court case that said the government cannot control what the media decides to publish

Marketplace of ideas:

A theory of free speech and press asserting that all ideas should be permitted to be published and disseminated so that consumers may pick and choose from them.

4 different non-marketplace of ideas

1. Non-capitalist (communist)

2. Psychological

3. Don’t think people are rational at all; can’t rationally take in information (dictator ideology)

4. Philosophical (believe people can’t communicate)

How a bill becomes a law.

1. Introduce

2. Referral to committee, then sub-committee

3. rules committee for debate

4. Up/down vote

5. Conference committee (make what passed in each house look the same)

6. Goes back to house/senate for final vote

7. President signs