JOMC 486- Test 1 with complete solution

First Amendment freedom of speech, press, assemble, petition, religion Pure speech public speech, writing a letter, publishing newspaper or book-- receives highest level of protection intermediate speech symbolic speech, advertising, broadcasting (some aspects) unprotected speech fighting words, libel, obscenity, threats, fraud strict scrutiny and seditious speech the use of the Brandenburg Test Brandenburg Test State may punish speech that is seditious or may encourage behavior if there is evidence of intent to incite violence, imminence of violence and likelihood of violence Cohen v. California, 1971 Jacket with **** the draft- he won- too vague and no level of violence - used the O'Brien Test O'Brien Test 1. Is the regulation within the constitutional power of government? 2. Does it further a substantial governmental interest? 3. Is the gov. interest unrelated to the suppression of expression? 4. is an incidental restriction on First Amendment freedoms no greater than necessary for furthering the gov. interest? Clark v. CCNV -Community for Creative Nonviolence erected tents to protest the treatment of homeless people and the U.S. Park Service wouldn't let them sleep in them-- the Parks won-- they were disturbing the park rules and there were other means in which they could express their views intermediate scrutiny and symbolic speech use the O'Brien test for determining when the state interest in regulating conduct is sufficient to justify some limitations on expression Rational-Basis Test -Apply if no fundamental right is involved -The law or restriction must further a legitimate state interest and be reasonably related to that interest Fighting Words inflict injury or tend to incite an immediate breach of the peace -Injury must be more than emotional seditious speech (strict scrutiny) -calls for political, social or economic change through violent, unlawful means -spoken or written -commit violent acts? illegal acts? fighting words (rational-basis) -personal insults to cause violence -face-to-face situation -will the recipient respond with violence? Elonis v. US -Facebook rap lyrics about violence to certain groups of people including his wife -must consider intent, "reasonable person" would perceive as a threat Prior restraints judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the government to do this. New York Times v. U.S., 1971 -Pentagon Papers -To exercise prior restraint, the Government must show sufficient evidence that the publication would cause a "grave and irreparable" danger -look at Near v. Minnesota The Progressive Case -Publish an article on the H-bomb and how it works -Department of Energy said the article revealed "restricted data" Elements of a libel suit 1. Defamation 2. Identification 3. Publication 4. Injury 5. Falsity 6. Fault The Nuremberg Files -listed abortion doctors and may saw it as a threat and sued -Jury awarded $107 million in damages to doctors Central Hudson Case, 1980 -N.Y. state regulation prohibiting public utilities form promoting use of energy -S.C. struck down the regulation -established a four-part test Central Hudson test -commercial speech truthful? -asserted gov. interest for the regulation is substantial? -does it directly advance the gov. interest? -regulation no more extensive than necessary? defamation a communication is defamatory - tends to harm the reputation of another Libel per se -Words are defamatory on their face -criminal conduct, professional incompetence, sexual immorality, a loathsome disease Yonaty V. Mincolla not defamatory because newer court decisions and state laws show a commitment to protecting homosexuals libel per quod -facially innocent statement becomes defamatory when it is combined with unstated facts know to the audience libel by implication -the arrangement of the facts or omission of some create a false impression -public officials and figures must prove publisher knew of the false implication -private must prove negligence Statute of Limitations -requires that a libel suit be brought within a certain number of years of publication date -In NE, 1 year Injury -loss of reputation, mental anguish and humiliation -must show that the defamation caused the injury actual malice knowing or reckless falsehood actual damages reputation, hurt feelings, humiliation special damages real, tangible, pecuniary loss (lost business, lost wages or salary presumed damages a showing of actual malice without proving any injury punitive damages intended to punish bad conduct on the part of the defendant and deter such conduct in the future nominal damages small award made when there has been a breach of duty but no substantial harm to the plaintiff Falsity prove the statements are false ONLY IF the plaintiff is a public official or it is a matter of public concern factors of public concern -forum in which statement appeared -status of plaintiff -whether statements concern politics or gov. -motives of speaker Common- Law Defenses -truth -absolute privilege -fair-report privilege (qualified) -fair-comment privilege Anti-SLAPP Laws -use libel lawsuits and threats of suits to quiet criticism of their actions -strategic lawsuits against public participation Gertz v. Welch, 1974 -private individuals have not invited public scrutiny -they do not have media access -they are not shaping public affairs public figures -involuntary -general purpose -limited purpose Injurious falsehood -publisher of a false and disparaging statement that harms the interests of another is liable for any pecuniary loss