First Amendment & Communications Law Flashcards

Comprehensive vocabulary flashcards covering First Amendment law, FOIA, newsgathering rights, the four privacy torts, defamation, and major constitutional doctrines.

Freedom of Information Act (FOIA)

A 1966 federal statute (5 U.S.C. § 552) establishing a legally enforceable right of public access to executive branch agency records.

Agency Record

A document meeting two criteria established in DOJ v. Tax Analysts: (1) the federal agency created or obtained the material, and (2) the agency is in possession and control of the material at the time the FOIA request is submitted.

FOIA Exemption 6

A statutory exemption under FOIA protecting medical files, personnel files, and similar files when disclosure would constitute a clearly unwarranted invasion of personal privacy.

FOIA Exemption 7

A statutory exemption protecting records compiled for law enforcement purposes if disclosure would cause specific harms, such as interfering with enforcement proceedings, invading personal privacy, or disclosing confidential sources.

Government in the Sunshine Act (1976)

A federal statute mandating that multi-member federal executive boards and commissions hold their meetings in public after providing advance public notice, subject to ten narrow exemptions.

Executive Session

A closed, non-public portion of an official government meeting permitted under specific statutory exemptions, such as personnel discipline, active litigation, or real estate acquisition.

Media Ride-Along Doctrine (Wilson v. Layne)

The Fourth Amendment rule holding that law enforcement officers violate constitutional rights when they invite journalists or media crews inside a private home during the execution of a search warrant.

Bartnicki Three-Part Rule

A First Amendment rule protecting media from liability for distributing illegally intercepted communications if: (1) the media did not participate in the interception, (2) access was obtained lawfully, and (3) the subject is a matter of public concern.

Reporter's Privilege (Branzburg v. Hayes)

The constitutional doctrine establishing that the First Amendment does not grant journalists a privilege to refuse to testify before grand juries investigating criminal acts.

Potter Stewart Three-Part Dissenting Test

A standard evaluating reporter's privilege in civil matters requiring: (1) probable cause of possession of relevant information, (2) absence of alternative means to acquire it, and (3) a compelling and overriding public interest.

Promissory Estoppel (Cohen v. Cowles Media Co.)

A generally applicable common law doctrine allowing sources to recover damages when news organizations breach explicit, relied-upon promises of confidentiality.

Commercialization

The branch of appropriation tort law designed to protect private individuals from emotional distress caused by the unauthorized commercial exposure of their identity.

Right of Publicity

An economic property right protecting celebrities and public figures against financial loss resulting from the unauthorized commercial exploitation of their valuable identity, persona, or catchphrases.

The Booth Rule

A defense in appropriation law allowing media organizations to use previously published news material in self-promotional advertisements without incurring right-of-publicity liability.

Intrusion on Seclusion

A newsgathering privacy tort focused on the act of intentionally physically or technologically intruding into an individual's private solitude or affairs where there is a reasonable expectation of privacy, in a manner highly offensive to a reasonable person.

Public Disclosure of Private Facts (PDPF)

A privacy tort penalizing the widespread public dissemination of truthful, highly intimate personal information that would be highly offensive to a reasonable person and lacks legitimate public concern (is not newsworthy).

False Light

A privacy tort penalizing the intentional or reckless publication of false or misleading statements about an identified person that places them in a light that would be highly offensive to a reasonable person, subject to the actual malice standard.

Actual Malice

The constitutional fault standard formulated in NYT v. Sullivan requiring clear and convincing proof that a defamatory statement was published with knowledge of its falsity or with reckless disregard of whether it was false or not.

Negligence (Defamation)

The civil failure to exercise reasonable professional care; recognized under Gertz v. Welch as the baseline minimum fault standard states may establish for private figure plaintiffs in defamation actions.

Voluntary Limited-Purpose Public Figure (LVPF)

An individual classified under the Lohrenz test as having voluntarily thrust themselves into a pre-existing public controversy, requiring them to prove actual malice regarding statements germane to their role.

Ollman Four-Part Test

A totality-of-circumstances test distinguishing actionable factual claims from protected opinion by evaluating: (1) common word meaning, (2) verifiability, (3) social context, and (4) broader linguistic context.

Milkovich Standard

The Supreme Court principle establishing that expressions framed as opinion are not immune from defamation liability if they contain provable factual connotations.

Communications Decency Act (CDA) Section 230

A federal statute conferring statutory immunity upon interactive computer services, website operators, and ISPs against civil defamation claims arising from third-party user-generated content.

Dendrite Five-Part Test

A procedural standard requiring notice, identification of defamatory statements, a prima facie case, supporting evidence, and explicit judicial balancing of First Amendment rights before ordering the unmasking of an anonymous poster.

Doe v. Cahill Standard

An unmasking standard requiring a defamation plaintiff to make reasonable notification attempts and satisfy a summary judgment evidentiary standard to uncover an anonymous online poster.

Strict Scrutiny

The most demanding standard of judicial review, applied to content-based speech restrictions, requiring the government to prove a compelling interest and narrow tailoring using the least restrictive means.

Intermediate Scrutiny

The standard of judicial review applied to content-neutral time, place, and manner regulations and symbolic speech, requiring a substantial government interest unrelated to speech suppression and ample alternative channels.

Brandenburg Incitement Test

A First Amendment rule establishing that advocacy of illegal action is constitutionally protected unless it is directed to inciting imminent lawless action and is likely to produce such action.

Tinker Disruption Standard

The student speech doctrine stating that public schools may not censor on-campus student expression unless it causes a material and substantial disruption to school operations.

Central Hudson Four-Part Test

The commercial speech test evaluating whether: (1) speech concerns lawful activity and is non-misleading, (2) the government interest is substantial, (3) the regulation directly advances the interest, and (4) there is a reasonable fit between means and ends.

True Threat

A category of unprotected speech communicating a serious expression of an intent to commit an act of unlawful violence, requiring under Counterman v. Colorado proof that the speaker acted with at least a subjective recklessness standard.

Ag-Gag Laws

State statutes attempting to criminalize unauthorized undercover recording or fraudulent employment applications at agricultural and livestock operations, which have been widely invalidated under the First Amendment.

Glomar Response

An agency's formal response to a Freedom of Information Act request wherein it refuses to confirm or deny the existence of the requested records.