Freedom of Expression Final Exam

Laws/Concepts; Section 230; Copyright Law; Public Records Laws

Injunction

Asks for equitable relief; you are not asking for someone to go to jail, but for a judge to stop a certain person from doing something so that harm to yourself can cease

Irreparable Harm

The harm that will be caused if the information is published is not something that can be repaired (e.g., people are going to die if it is published)

Five Elements of a Libel Case

Publication, identification, harm to reputation, falsity, fault

Anti-SLAPP Laws

SLAPP: strategic lawsuit against public participation; if a journalist reports something harmful but true about you, you can sue; even if you lose, you have made it painful for the press

Common Law Defenses to Defamation Suits

Truth (even a gist of the truth), opinion (as long as opinion is idea, no false statement of fact)

Intentional Infliction of Emotional Distress (IIED)

Outrageous conduct, severe emotional harm, actual malice required to win IIED claim

Invasion of Privacy

False light, publication of private facts, intrusion

False Light

Happens after publication is made about topic; a false publication about someone that does not harm their reputation

Publication of Private Facts

Happens after publication made about topic

Intrusion

Happens before publication: intrusion on solitude that is offensive to a reasonable person; the newsworthiness of the intrusion does not relate tot he offensiveness of the intrusion alone

Material Contribution

The platform directly contributes to the violation

SESTA/FOSTA

Stop enabling sex trafficking act, fight online sex trafficking act

Theory of Copyright

“Engine of freedom of expression”, copyright subsidizes marketplace of ideas, copyright is a tradeoff that incentivizes authors to create works by allowing exclusive right to profit off of them

What can be copyrighted?

Original works of authorship fixed in a tangible medium (books, songs, drawings, outline for movie script)

What cannot be copyrighted?

Facts, scientific formulas, mere ideas, government publications, AI or animal works

What can rightsholders do with copyright?

make copies of their work, distribution of their work, license the work for display or performance, make derivative works (e.g., books into movie, translation into another language)

Fair Use Test

nature of new work, nature of original work, amount of substantiality of the use, effect on the market for the original work

Digital Millennium Copyright Act (DMCA) notice-and-takedown regime

EXAMPLE: if a movie studio owns the copyright to a digitized file and wants to sue an infringer, they could sue that person

What does the Federal FOIA cover?

Agencies housed in the executive branch (NOT congress, courts, or office of President)

What do state and federal statutory mechanisms give individuals?

A right to access government documents

What do and don’t “freedom of information laws” require government to disclose/give out?

not information, but records created containing information

What does FOIA stand for?

Freedom of Information Act

What is an example of how state laws vary in terms of their scope?

Iowa’s Public Records Act covers state executive agencies, local government entities (law enforcement), and the office of the governor

Do you need a reason to make a request on the federal or state level?

NO

Are records presumed public?

YES (burden is on government agency to show they are not public bc they are subject to enumerated exemption)

How many exemptions does the Federal FOIA have?

9: national security, internal personnel rules, other statutory exemptions, trade secrets, agency memos, personnel and medical files, law enforcement, financial institutions, location of oil and gas wells

How many exemptions do state laws have?

Dozens bc more of our daily interactions w government happen at state and local level