Freedom of Expression Final Exam Review

Legislative Branch

allowed to pass federal laws

Judicial Branch

delegated powers from the Constitution to settle disputes of federal law and between states

Executive Branch

enforces the statutes set forth from the legislative, in part using administrative agencies and law

Marketplace Theory

the best ideas rise to the top

Self-Goverment Theory

individuals have the right to govern themselves, to support democracy among the people

Individual Autonomy Theory

free speech matters no matter what that speech is, our individual experience with free speech, free speech is a huge part of individuals experience

Dissent Theory

freedom of expression allows us to disagree with others and dissent

Tolerance Theory

the amount to which people are able to allow and control, being able to accept what others say and think without acting on it based on your own beliefs

Checking Value Theory

“watchdog” role, checking for the facts to ensure that things are correct

Public Forum Doctrine

any space that has been designated a pubic area, streets, parks, or public meeting locations, citizens are able to assemble and express themselves

Traditional Public Forums

by tradition, or government action, have been devoted to assembly and debate

Designated Public Forums

government-owned spaces that the government has intentionally opened for public expressive activity

Limited Public Forums

the government has opened a property for certain groups or for the discussion of specific topics (ex: classrooms at public universities)

Nonpublic Forums

government owned spaces that are not traditionally or intentionally open for public expression. The government can regulate speech in these forums for their intended purposes as long as the regulations are reasonable and not iminteddned to suppress a particular viewpoint (ex: hospitals, prisons)

Strict Scrutiny

highest test of scrutiny, laws that infringe on fundamental rights or involve suspect classifications (race, national origin, or religion)

True Threats

• a statement that frightens or intimidates one or more specified persons into believing that they will be seriously harmed by the speaker or by someone acting at the speaker’s behest

• the speaker does not actually intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat

High School Speech Constraints

• substantial disruption

• obscenity

Tinker v. Des Moines (1969)

• all cases following this one have been evaluated by it

• tinker test:

  • does the speech cause a material and substantial disruption to the school’s functioning?

• students do not “shed their constitutional rights to freedom of speech or expression” as schoolhouse gates

Bethel v. Fraser (1986)

• in opposition to Tinker, the court rules that a student who used inappropriate language at a school assembly did not have his free speech rights violated when he was suspended

• indecent speech (no) v political speech (yes)

Hazelwood v. Kuhlmeier (1988)

• schools that can use editorial roles so long as their actions are reasonably related to legitimate pedagogical concerns

• hazelwood test:

  • 1. served the educational mission of the school

  • 2. was done in a reasonable manner

  • 3. was related to pedagogical concerns

  • 4. served a valid purpose

college speech constraints

• time, place, and manner restrictions

• nonpublic forums

Healy v. James (1972)

• in favor of free speech for students

• “state colleges and universities are not enclaves immune for the sweep of the 1st Amendment

Papish v. Missouri Board of Curators (1973)

• clear the mere dissemination of ideas

• campus may not be shut off in the name alone of “conventions of decency”

• explicit political cartoon

Miller Test for Obscenity

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

2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state aw

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientifical value

Commercial Speech

speech that does “no more than propose a commercial transaction”, legalities refer to advertising practices

Political Speech

• most protected and vital form of speech

• FEC outlines political speech regulations

• defends and expands other rights

• democracy cannot function without open debate

Symbolic Speech

nonverbal, non written forms of communication, generally protected unless it causes a direct threat to pubic or individual (ex: flag burning)

Symbolic Speech Test

1. is the law within the constitutional power of the government?

2. does the law further a substantial or important government interest?

3. is the interest unrelated to the suppression of free speech?

4. is the regulation the least restrictive means with regard to free speech?

Indecency

• covers explicitly broadcast industries

• depicts or describes patently offensive, sexual or excretory organs or activities

• FCC allowed to regulate because…

  • vastness of broadcast media

  • fear of children finding media

  • tech is sacred, need to regulate

Obscenity

• certain types of sexual or graphic content not protected by 1st Amendment - no serious value or deeply offensive

• can be banned under strict legal concerns

• began from Comstock Act of 1873

• regulated to:

  • protect public morality

  • protect children and vulnerable groups

  • preserve community standards

Why did the founders bestow so much power to the press?

• watchdog role to the government

• distrusted concentrated government power

• self governance

Why did the founders believe so strongly in the importance of freedom of the press?

• press was essential in checking government corruption

• supported public debate and marketplace of ideas

What are the differences between the acceptance of press freedom in the U.S. v the rest of the world?

• strongest freedom of the press protection

• prior restraint is almost always constitutional, strong protections against libel and defamation suits

• broad protection of offensive and political speech

Limits of Press Freedom: What is allowed?

• publish without government approval

• criticize government and public officials

• public truthful information

• public classified or leaked information

• engage in investigative journalism

Limits of Press Freedom: What is prevented?

• defamation (libel)

• national security limits

• obscenity and child pornography

• copyright violations

• incitement

• invasion of privacy

Where does prior restraint originate from?

influence on the American founders

What is the purpose of prior restraint?

• control political opposition

• maintain government authority

• enforce government censorship

When is prior restraint allowed?

publication would cause direct, immediate, and irreparable harm to national security or public safety

Zenger Trial (1735)

• criticized the government in print

• fears over what to write, publish, and speak out about

• founding fathers believed criticism of the government was important

Sedition Act of 1798

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost” - Thomas Jefferson

Near v. Minnesota (1931)

• published articles about public figures and politicians

• the “alleged” widespread “dereliction of duty” on behalf;f of the state and its citizens

• Minnesota’s public nuisance law violated the freedom of the press

Public Nuisance Law

publishing “malicious, scandalous, and defamatory” press, could be prevented from publishing from then on

New York Times Co. v. Sullivan (1964)

• critical defamation test: actual malice case

• public officials must prove actual malice

Libel

written defamation

Slander

spoken defamation

Effects of Defamation

• damage to reputation

• financial loss

• job loss/hiring difficulties

• distress

Balancing Protection of the Press with Public Citizens Protections

• press:

  • report freely

  • watchdog

• public

  • rights to privacy, safety, and good reputation

• balancing

  • press freedom allowed until it unfairly harms someone

  • citizen protection allowed unless it blocks important public information

  • ensure press can report freely when information is important to the public and citizens are protected when the story is not truly public interest or contains false information

Actual Malice Standard

1. knew the statement was false, OR

2. acted with reckless disregard for whether it was true or false

Public Figure

• politicians, celebrities, high profile business leaders, influencers

• must prove actual malice, higher standard and makes it harder for public figures to win defamation case, protecting press freedom

• someone who chooses to be in the spotlight

Private Figure

• ordinary people

• need to only prove negligence

• lower standard, making it easier for private individuals to protect their reputation

Public Officials

• responsible for or control over conduct of government actions

• positions with importance to the public

• information about them may relate to qualifications, conduct, or character

Public Figure: All Purpose

• widespread fame or notoriety

• occupies a position of power; designated a public figure for all purposes

• celebrities

Public Figure: Limited Purpose

• recipes public figure status with narrow circumstance - likely controversy

• public controversy must exist before publication of libelous statement

• plaintiff must have voluntary participated to resolve controversy, and in some ways, influence public opinion

Public Figure: Involuntary

• does not thrust themselves into public attention or controversy but is drawn into a given specific issue

  • those charged with a crime or in a bad car accident

Defamation Per Se

• on the surface, without any additional knowledge, the statement is defamatory and presumes harm to a person’s reputation

  • ex: saying someone committed a crime

Defamation Per Quod

• a type of defamation that requires additional information, knowledge, or extrinsic evidence to claim damages

  • ex: alleging that a restaurant buys its chicken from Walmart or from a very cheap vendor, instead of organic like they claim

Defenses to Libel

• truth

  • strongest defense

  • if a statement is true, it is not libel

• opinion

  • pure opinions are protected

  • statements have to be proven false

• must prove actual malice

Curtis Publishing Co v. Butts (1967)

• public figures can win libel if they can prove the publisher engaged in “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers”

The Associated Press v. Walker (1967)

• public officials to public figures

• public figures must now also prove actual malice

• no actual malice standard present

Gertz v. Welch (1974)

• can a publisher of defamatory material claim constitutional privilege against liability when the defamed person is neither a public figure nor a public official?

• the New York Times actual-malice standard is too heavy of a burden for private individuals

What does the Constitution say about our expectations of privacy?

• first amendment

• protects private speech and private association

• privacy of belief and association

  • “freedom of belief”

What does a reasonable expectation of privacy refer to?

• 2 pronged test

  • the person must show a “subjective” expectation that his activities or items would be private

  • the individual must show that his subjective expectation of privacy is one which society considers reasonable

Four Torts of Privacy

1. public disclosure of private facts

   1. publication of private information which could be considered highly offensive to a reasonable person

   2. once again, if there is substantial need for the public to know, in terms of a public official, the First Amendment and the Freedom of Press applies

2. false light

   1. the information may be truthful but it was presented in a manner that was intended to place someone in ridicule or embarrassment, and would be offensive to the average person

   2. difference from defamation? does not cause harm to reputation

3. appropriation of name and likeness

   1. unlawful usage of someone’s name and image for personal or professional gain

4. intrusion into seclusion (invasion of privacy)

   1. someone is in private location - home or hotel - and their privacy is disturbed by camera or physical presence - they are invading that person’s privacy

The Press and Ethical Reporting

• freedom of expression allowed the press to report without government interference, but this freedom comes with ethical duties

• journalists must report truthfully, verify facts, avoid harm and respect privacy

• ethical reporting ensures the press informs the public responsibly, maintains trust, and supports a healthy democracy

Griswold v. Connecticut (1965)

SCOTUS rules that a Connecticut law blocking anyone from using contraception is illegal, people are entitled in marital privacy

Katz v. United States (1967)

• “reasonable expectation of privacy”

• privacy in a phone conversation (call took place in a public phone booth)

• two pronged test

  • the person must show a “subjective” expectation that his activities or items would be private

  • the individual must show that his subjective expectation of privacy is one which society considers reasonable

Simple v. Chronicle Publishing (1984)

• simple sued the Chronicle for publishing the information

• court sided with the Chronicle, arguing that the dislocated facts about Ripple’s sexual orientation were not private but had already entered the public domain through Ripple’s own activities in the gay community, which were know by a significant number of people

Lawrence v. Texas (2003)

• right to privacy and autonomy

• expanded constitutional protections for personal liberty and privacy

Communications Decency Act (CDA) purpose

intended to regulate indecent and obscene material on the internet and protect children online

Why was Section 230 created?

• to protect online platforms for liability for content posted by their users and to encourage them to moderate that content

  • encourage content moderation

  • resolve legal ambiguity

  • foster internet growth

  • promote free speech

What does Section 230 accomplish?

provides legal immunity to websites and online platforms for the content posted by their users, while still allowing them to moderate content and remove objectionable material in good faith

What does Section 230 allow for?

allows internet service providers and users to be shielded from liability for most third-party content posted on their platforms, while still allowing them to moderate content in good faith

How has Section 230 been criticized?

• giving tech platforms too much power to post harmful content without accountability, leading to the spread of misinformation, hate speech, and illegal content

• enables censorship

• broad liability protections are too generous

When can tech companies be held liable?

• when they violate specific regulations

• when they cause harm

Twitter v. Tammneh

• social media platforms are not liable for a riding and abetting terrorism simply for providing a service that terrorists can use

• platform must “knowingly” provide “substantial assistance” to the specific terrorist standard

Gonzalez v. Google

• whether to limit the liability shield of Section 230 of the CDA

• used Section 230

Public Domain

creative works that are not protected by copyright and can be freely used by anyone without payment or permission

How do creative works get into the public domain?

• when the copyright expires, when the copyright holder dedicates the work to the public

• work is created by the U.S. government

Examples of public domain works

• commentary

• criticism

• pardy

• news reporting

• research and scholarship

Statue of Anna 1710

exclusive right to print works for a period of 14 years, with an additional 14 years possible

Copyright Act of 1790

kept same year protection, but in this case, claim must be registered and need to be a U.S. citizen

Copyright Revision of 1831

includes music compositions now, 28 year protection now

Copyright Revision of 1901

increased the rental term to 28 years for a maximum of 56 years. exclusive right to for-profit musical performances and licensing requirements

Current: Copyright Act for 1976

• for work on or after January 1, 1978, protection lasts for life of author, plus 70 years

• works for hire: 120 years from creation, or 95 years from publication

• nay words first published in 1922, or before is now in public domain

What is the current copyright standard?

Copyright Act of 1976

Why does copyright law exist?

• founders believed the creative expression was formative component of society and must be protected

• first copyrighted material was maps, charts, books

What can currently be copyrighted?

• literary works

• musical words

• dramatic words

• choreographically works

• motion pictures

Parody and Fair Use

fair use permits limited use of copyrighted material without requiring permission

Digital Millennium Copyright Act (1988)

• balancing creative expression with copyright protections online. must establish that fair use was not used

• 1. anti-circumvention provisions

  • you are n to allowed to break or destabilize software that protects copyright of a given work

• 2. safe harbor for internet service providers

  • if ISPs are blocking access to copyrighted material - for example, on YouTube - they are not liable for copyright infringement claims

Folsom v. Marsh (1841)

• fair use

• four factor test stems from this usage

  • purpose and character of the usage

    • fair use statute indicates that nonprofit educational purposes are generally favored over commercial uses

    • '“transformative usage”

  • nature of the copyrighted material

    • to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are not protected by copyright - only their particular expression or fixation merits such protection

  • amount of sustainability of the usage

    • although the law does not set exact quantity limits, generally the more you use, the less likely you are whiten fair use

    • there are circumstances where if you take ‘the heart of the work’ or a key, integral passage of a text or song, it might prevent fair use

  • effect on work’s value

    • the court investies two elements

      • whether the defendant’s specific sue of the work has significantly harmed the copyrights owner’s market

      • whether such uses in general, if widespread, would harm the potential market of the original

Baker v. Selden (1879)

while a copyright protects the expression of an idea, it does not protect the idea or system itself

Sony v. Universal (1984)

• does Sony’s scale of “Betamax” video tape recorders to the general public constitute contributory infringement of Universal’s copyrighted public broadcasts under the Copyright Act?

  • ruled in favor of Sony

  • said that many broadcast companies did not really care

Campbell v. Acuff Rose (1994)

a commercial parody can qualify as a fair use of a copyrighted work under the Copyright Act. rejected the idea that a commercial purpose created a “presumption of unfairness” in copyrighted cases

A&M Records v. Napster (2001)

• Napster provided a platform for users to download compressed digital music files, specifically MP3s from other users’ music libraries

  • did Napster’s file-to-file sharing service contribute to breaking copyright protections?

    • court of appeals for the 9th circuit did contribute and infringe on copyright