Traditional public forums
Public sidewalks, parks, and areas traditionally open to political speech and debate
1) Content-neutral TPM restrictions ? usually survive intermediate scrutiny
2) However, broad ban on speech in traditional public forums must generally survive strict scr
Designated public forums
Sometimes available for public use, at the government's discretion; government can limit access to speech that conforms to the space's primary function
(1) Content-neutral usage regulations ? intermediate scrutiny
(2) Viewpoint-based usage regulations ? s
Nonpublic forums
Areas that aren't generally available for traditional First Amendment activities; government acts more like a private property owner
(1) Government may exclude the entire public or certain speakers or messages on the basis of a reasonable or rational, vie
Political speech
involves any "interactive communication concerning political change"; strict scrutiny usually applied (pp. 73-74)
Citizens United v. FEC
USSC found a federal law's restrictions on corporate and union independent election spending to be unconstitutional; direct limits on how corporations and unions could fund "electioneering communications: violated the First Amendment
Wooley v. Maynard (USSC 1977)
Jehovah's Witness could not be compelled to uncover "live free or die" slogan on license plate
Supreme Court upheld his right to "remain silent" through the 1st Amendment
Consequentialist Ethics
Concerned with the ethical consequences of particular actions; man is subject to avoid pain and seek pleasure
Utilitarianism
The "right" action produces the greatest balance of good over harm
Cost-benefit analysis
You choose one thing over the other; choices that cost us/benefit us
Deontological ethics
Locate morality in certain duties and rights, regardless of consequences
(1) How to know our duties?
(a) Act only in a way you'd want to be a
universal law
(b) Treat persons as ends in themselves, not
as means to an end (do not use people
for a certain ad
Virtue ethics
What kind of person do you want to be?
(1) Ethical actions should be consistent with ideal human virtues
(2) Humans have a fixed nature - an essence - and we flourish by adhering to that essence
(3) Virtue is the midpoint between extremes (Golden Mean) ?
SPJ Code of Ethics
(1) Seeks truth and reports it: be accurate, fair, honest, and courageous in gathering, reporting and interpreting information.
(2) Minimize harm: treat subjects, sources, colleagues, and the public with respect.
(3) Act independently - serve the public;
Espionage Act of 1917
Crime to "willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces... or... willfully obstruct military recruitment.
Amended the Espionage Act with the Sedition Act in 1918
Forbid spoken or printed criticism of the U.S. government, the constitution, or the flag
Incitement to Illegal Activity
NOT PROTECTED BY FIRST AMENDMENT
Brandenburg v. Ohio
Mr. Brandenburg went to a KKK rally and "threatened" the president of the US
(a) State crime to advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing political reform
(b) Brandenburg fined $1,000 and sentenced to
10 y
Holder v. Humanitarian Law Project
(a) Nonprofit (HLP) wished to support the non-
terrorist activities of terrorist organizations
(b) Federal crime to "knowingly provide material
support to a foreign terrorist organization."
Material Support:
(i) Includes expert advice/assistance
(ii) Does
Chaplinsky v. New Hampshire
Facts?
Chaplinsky was a Jehovah's witness, passing out literature on a street corner.
But crowd is started to get annoyed with him and starts throwing things back at him. Police say he needs to move along but people are still getting mad at him.
A person
Cohen v. California
Facts?
Arrested for disturbing the peace through offensive conduct
Was wearing a jacket that said "**** the Draft"
State law prohibited disturbing the peace by "offensive conduct"
Holding: if the speech didn't disturb the courthouse's functioning, the gov
R.A.V. v. St. Paul (USSC 1992)
Caucasian teenagers set fire to wooden cross on African-American family's yard at night
City law made it a crime to display symbols that arose "anger, alarm, or resentment, in others on the basis of race, color, creed, religion, or gender."
Court unanimou
Virginia v. Black (USSC 2003)
Barry Black led KKK rally at a private farm, Concluded by burning a 30 ft cross
Black is arrested for burning the cross.
Virginia Statute: Virginia law says it is a crime to burn a cross with the intent to intimidate. Burning a cross is itself sufficient
Elonis v. United States
Elonis was getting a divorce and posted self-styled rap lyrics on Facebook to work his way through the emotional turbulence of his divorce. Posted them under a pseudonym and it was some graphic imagery (i.e. wanting to kill his wife, ill his coworker). Wi
Symbolic Speech
PROTECTED - Can the government punish messages that threaten symbols of national unity?
Texas v. Johnson
Gregory Johnson burned a U.S. flag at the 1984 Republican National Convention in Dallas.
Texas statute banned desecration of the flag
State asserted two interests:
Preventing breaches of the peace
Preserving as a symbol of national unity
Court rejects bre
Tinker v. Des Moines
Facts: Students planned to wear black arm-bands to protest the Vietnam war, school heard about it and created a rule prohibiting the attire, students wear bands and are suspended; parents and students sue the school district for violation of the freedom o
Hazelwood v. Kulmeier
High School newspaper to publish two articles on teen pregnancy and the effects of divorce on students
Principal pulls the articles before publication.
Holding: School officials have control over school-sponsored activities, such as student newspapers, th
Morse v. Frederick
Facts?
Did the sign promote drug use? - Yes
Deterring illegal drug use is an "important � perhaps compelling" interest
Holding: schools may "take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging i
Libel laws and free speech
Libel laws are state tort laws that allow private parties to sue one another for libelous speech.
Allows you to sue someone that damages your reputation
Such state laws could impose invalid restrictions on a defendant's free speech
Thus, first amendment c
Libel laws
Potential for a "chilling effect"
(2)* Strategic lawsuit against public participation (SLAPPs) refer to people using libel laws to silence their critics.
State anti-slapps laws
1. Ex: can allow judges to quickly dismiss meritless lawsuits and award attorn
Statement of Fact
In order to be libelous, a statement must make an assertion of fact. Understanding the difference between fact and opinion is important because an expression of opinion cannot be libelous since opinions cannot be "false" Example: "The food was terrible" v
Publication
Plaintiff must prove at least one other person has seen/heard the statement (Source + subject + 1)
Republication rule - Republication is the same as publication
Exceptions to republication rule - Selling or disturbing material is not considered "republica
Identification
(1) Plaintiff must prove the statement reasonably refers to him or her
(2) Name, title, photo, inference/context
(3) Identification in fiction: superficial similarities are insufficient, very hard to prove.
Defamation
Plaintiff must prove that the statement is defamatory
Libel per se
On its face a defamatory statement. Would not need any other information to know that is defamatory.
Libel per quod
Need more information to decide whether it's a defamatory statement or not
Business and trade libel
Trade (or product) libel. Case against Oprah. She was talking about mad cow disease and was talking about beef in general.
No specific cattle rancher
Falsity
Plaintiff must prove statement is false
Substantial truth - Was the statement more damaging to plaintiff's reputation than a fully truthful statement would have been?
Implications and innuendo
Fault
What did the defendant know about the statement's falsity? The level of fault the plaintiff must prove depends on the plaintiff's identity. If plaintiff is a public official/figure - he/she must prove
Actual malice (know the test and what it means): If pl
New York Times v. Sullivan
Brought this lawsuit not as the police commissioner but as Sullivan. Sues for libel, as police commissioner is hurting his damage by thinking they lock people in the dining halls. State court ruled in his favor; awarded him $500,000, affirmed by Alabama S