Final Exam - Definitions, Concepts, or Issues

Speech plus

A term that describes the distinction made by the courts between "pure speech" and speech conjoined with conduct → simply speech interwoven with action, it is relevant because the "plus" may cause the expression to receive less protection under the First Amendment than it would if it were "pure speech"

Petition for Certiori

A formal request to the Supreme Court to review a decision made by a lower court

Political Heresy

Refers to beliefs or actions that challenge or deviate from the dominant political ideology or orthodoxy within a society or regime. It often involves dissent that is viewed as subversive or dangerous to the established political order.

Fighting words

"Those which by their very utterance [1] inflict injury or [2] tend to incite an immediate breach of peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Emotive speech (Cohen v. California)

Speech that expresses strong feelings to convey meaning or provoke reaction, not just ideas

Political speech

More than any other type of speech, this speech has the most absolute First Amendment protection (more than commercial speech, symbolic speech, etc.)

Content neutral

Regarding TPM restrictions, applies to restrictions placed upon free speech in public areas and requires that prohibitions be made without regard to the message (e.g. the government cannot prevent a group from obtaining permits based on their message, only based on things like logistics, such as too many people)

What is and is not eligible for copyright protection

What is: Literary, musical, dramatic, pantomime, choreographic, pictorial, graphic, sculptural, architectural, motion pictures/other audiovisual works, & sound recordings. What is not: Ideas and principles; Utilitarian objects; Facts; Obscene, immoral, or fraudulent works; & Works of the US government

Symbolic speech (what the SCOTUS says about it now)

Also known as speech plus, SCOTUS refers to this as action that must intend to convey a meaning to an audience that will likely understand the intended message

Compatible use rule

"The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time"

Constitutional protection of copyright (why?)

The public grants an author a limited monopoly (giving up a public good) and receives original works of authorship and certain rights to use the work during the copyright term (and rights once the work is in the public domain); "To promote the progress of science and the useful arts..."

Hierarchy of law

Some laws supersede other laws; if two laws are in conflict, which one gets enforced? US Constitution > Acts of Congress and Treaties > State Constitutions > State Laws/Statutes > City and County Ordinances

Three-part test (from dissent in Branzburg) when reporters should reveal their sources

Also called the Qualified Privilege Test → Relevance test: government must show the newsperson has information which is clearly relevant to a specific probable violation of the law; Alternative Means test : the government must show they cannot get the information any other way besides from the reporter; Compelling Interest test: the government must demonstrate a compelling and overriding interest in the information

Defense against a libel claim

The statement is true, the plaintiff's reputation is already so tarnished that it can not be harmed further, or the speech is considered privileged communication. Privileged communication can fall into one of two baskets, absolute privilege and qualified privilege. Absolute privilege refers to communication in government proceedings, with plaintiff's permission, and between spouses. Qualified privilege refers to some protection for journalists, opinions, and professional reviews.

Six things plaintiff must prove to win a libel suit

Conditions (defamation, publication, identification, fault), damages (actual [calculable], general [subject to jury's opinion], punitive [awarded as punishment for particularly bad defamation]), and summary judgement (judge can dismiss libel suit if convinced that the evidence is weak).

Public figures vs. Private figures in libel claim

In a defamation case, public figures must prove actual malice, meaning the statement was made with knowledge that it was false or with reckless disregard for the truth. Private figures must only prove negligence, meaning that the defendant failed to exercise reasonable care in identifying the truth. Overall, public figures have a much stricter burden.

Actual malice

Established in NYT v. Sullivan--defined as knowledge that speech was false or reckless disregard to whether it was false or not. Key Factors: state of mind (since you cannot be guilty of malice if you thought the statement was true) & time element (you have a heavier responsibility the more time you have).

False-light invasion of privacy

Misleadingly portray the plaintiff in a way that would be highly offensive a "reasonable person," must be widely circulated, and be made with malice

Due Process

The legal requirement that the government must respect all legal rights owed to a person, ensuring fair treatment through proper procedures--important to procedural justice

Athens, Greece

Birthplace of Freedom of Speech

Statute of Anne of 1710

The first copyright law, which gave copyright rights to the author, not the publisher, for 14 years

Place restrictions on speech

Regarding TPM restrictions, most public spaces have Free Speech without restrictions whereas schools, military bases, and prisons all have these restrictions.

Fair use

A legal rule that lets you use copyrighted material without permission if certain conditions are met, like using it for education, non-profit, or criticism—not for commercial gain. Courts look at four key factors: Purpose (educational/non-profit vs. commercial), Nature (factual or easily quotable vs. creative), Amount used (a small piece vs. the "heart" of the work), and Effect on market value (hurting sales = more likely infringement)