First Amendment and Defamation Laws: Understanding the Bases for Regulating Speech, Exams of Media Laws and Ethics

Download First Amendment and Defamation Laws: Understanding the Bases for Regulating Speech and more Exams Media Laws and Ethics in PDF only on Docsity! JOMC 486 MASS MEDIA LAW B ENDER LATEST UPDATE 2024. What is the highest level of speech? - Correct answer pure speech What is considered pure speech? - Correct answer public speech, writing What is considered intermediate speech? - Correct answer symbolic, advertising, broadcasting What is considered "unprotected" speech - Correct answer fighting words, libel, obscenity, threats, and fraud? What are the levels of scrutiny? - Correct answer strict, intermediate, and rational What level of scrutiny is used w/ content-based speech? - Correct answer strict What level of scrutiny is used w/ content-neutral speech? - Correct answer intermediate Content Based - Correct answer restrictions on the subject matter or the ideas expressed in the regulated speech Content neutral - Correct answer time, place, and manner restrictions T/F: protection for newsgathering is strong - Correct answer false. It is weak. "Most hostile of the three dichotomies" Brandenburg v. Ohio - Correct answer Gov't can't punish or prohibit inflammatory speech unless it is likely to incite imminent lawless action. Ohio Criminal Syndicalism Act - Correct answer Used to restrict speech made by socialists, radicalisms, labor unions Brandenburg Test - Correct answer Speech can be restricted based on three factors: - Imminence - Likely to incite - Intent to incite imminent lawless action Lead to clear and imminent danger test Speech Action Dichotomy - Correct answer Differentiation between speech and action and what is protected. 1) Pure speech is wholly protected 2) Actions undertaken for expressive purposes may be regulated, but still receive some protection 3) Non-expressive actions have no 1st amendment protection What type of scrutiny was used in Brandenburg? - Correct answer strict. Facial challenge to a statute US vs. O'Brien - Correct answer Burning a draft card is not protected by free speech. O'Brien Test - Correct answer a four-part test used to determine whether a content- neutral law is constitutional 1) Is reg. within the constitutional power of the government? 2) Does it further substantial Gov. Interest? 3) Gov. Interest unrelated to the suppression of expression? 4) Is any incidental restriction on 1st amend? Freedoms no greater than necessary for furthering the Gov. Interest? When should the O'Brien test be used? - Correct answer to determine when state interest in regulating conduct is sufficient to justify some limitations on expression Texas v. Johnson - Correct answer A 1989 case in which the Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was symbolic speech protected by the First Amendment. What was the concurring opinion of Justice Kennedy in Texas v. Johnson? - Correct answer didn't like allowing flag burning as a form of free speech....but constitution demands as much room as possible for freedom of expression Fighting Words - Correct answer words that by their very nature inflict injury or tend to incite an immediate breach of the peace R.A.V. v. City of St. Paul - Correct answer in this 1986 case, the Supreme Court struck down a hate crimes law that prohibited cross burning. Anger, alarm and resentment: fighting words? - Correct answer too broad, not what fighting words doctrine covers Fighting Words Doctrine - Correct answer the idea that censorship can be justified against inciting provocation to violence - applies to primarily (if not only) face-to-face situations - Injury must be more than emotional - Regulation MUST BE content neutral!!!! Qualities of fighting words - Correct answer - likely to promote a violent response - limited to face to face, oral communication Qualities of Seditious Speech - Correct answer -speech calling for political/social/economic change through violent, unlawful means - Any medium - Sexual immorality -loathsome disease Factual Nature of Defamation - Correct answer - for a statement to be defamatory, a reasonable person might understand it as stating actual facts about plaintiff - generalized insults, unflattering statements, may not be defame. Even if false Privilege of Public Officials and Defamatory - Correct answer Say whatever they want, essentially Does republishing false statements count as libel? - Correct answer No! Defamation per quod - Correct answer Defamation that is A. not apparent on its face and requires extrinsic evidence to prove its injurious nature Defamation per se - Correct answer a statement that is libel or slander in and of itself and is not capable of an innocent meaning. DO NOT NEED TO PROVE DAMAGES What does special damages entail? - Correct answer Economic harm Defamation by implication - Correct answer when a combination of facts creates a false and defamatory impression. PUBLIC OFFICIALS/FIGS need to show what to prove defamation by implication? - Correct answer must prove that publisher knew or had a high degree of awareness of the false implication. T/F: Just because a statement is false does not mean it is defamatory - Correct answer true Identification and libel - Correct answer does the defamation obviously apply to a particular individual(s) A reasonable person must feel that the defamatory statement is making _____ facts about the plaintiff - Correct answer actual (Ms. Wyoming) Defamation of groups - Correct answer publisher of defamatory statement about a group may be liable to individual members if: - The group is so small the statement can reasonably be understood to refer to any member or - The circumstances reasonably suggest the publication refers to a particular member Injury (libel) - Correct answer Plaintiff MUST provide evidence of actual injury. Injury can be: - Loss of reputation, mental anguish, humiliation - Show the defaming statement SPECIFICALLY caused the injury - Injury is presumed in when publisher was aware or reckless toward falsehood (actual malice) Presumed damages can only be awarded on a showing of... - Correct answer actual malice Types of Damages - Correct answer Actual, Special, Presumed, Punitive, Nominal Actual Damages - Correct answer Compensate plaintiff for injury to reputation, hurt feelings, humiliation. Must be supported by evidence! Special Damages - Correct answer Compensation for hard dollar value, tangible, pecuniary loss. Supported by proof, MAY NOT include future losses Presumed Damages - Correct answer Damages a plaintiff can get without proving injury or harm. ONLY awarded in cases of actual malice. Some states allow presumed damages when... - Correct answer plaintiff is a private individual, defendant is a non-media person Punitive Damages - Correct answer Awarded by a court to a plaintiff not to compensate the plaintiff for damages suffered, but to punish the defendant & deter such conduct in the future. NOT IN NEB Nominal Damages - Correct answer Small award when there has been a breach of duty but no substantial harm to plaintiff What was the language of the Public Nuisance Act which was challenged in Near V. Minnesota? - Correct answer malicious, scandalous and defamatory Falsity (Libel) - Correct answer must prove falsity in all cases where: -plaintiff is a public figure or public figure OR -plaintiff is a private individual and the defamatory statement is a matter of public concern Matters of Public Concern - Correct answer - relates to political, social, or other community interests OR - It is subject to legitimate news interest and of general interest and value to the public (Snyder v. Phelps) Four Relevant Factors of Public Concern - Correct answer -Forum in which statement appears -Status of plaintiff -Whether the statements are political speech -Motives of speaker In cases involving _______, no liability for defamation without proving some level of ______ - Correct answer public concern; fault What are the two levels of fault? (Libel) - Correct answer Actual Malice and Negligence Actual Malice must be proven by... - Correct answer public officials and public figures in order to recover ANY damages Negligence must be proven by.... - Correct answer Private individuals to recover ACTUAL damages Private individuals must prove actual malice to recover _________ - Correct answer punitive damages Publication (libel) - Correct answer the communication, intentionally or negligently, to someone other than the person defamed Single Publication Rule - Correct answer a rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and on websites. Statute of Limitations - Correct answer requires that a libel suit must be brought within a certain number of years of the date of publication What is the statute of limitations in Nebraska? - Correct answer 1 year Section 230 of the 1996 Telecommunications Act - Correct answer -no interactive computer service shall be treated as the publisher of any information provided by others -This immunizes such services from liability for defamation & other torts -Distinguishes interactive service providers from info content providers Defenses to a libel suit - Correct answer truth, privilege, fair comment and criticism Truth (libel) - Correct answer defamatory statement of fact is NOT actionable for defamation - DO NOT HAVE TO PROVE TRUTH IN EVERY DETAIL T/F: Is truth a complete defense against libel? - Correct answer no. The means of who and how the communication was made can make a true statement able to get damages (Staples example) Determining Truth (Libel) - Correct answer 1st: Must determine what gist of publication was & whether the gist is defamatory 2nd: must decide whether the preponderance of evidence proves the defamatory statements true Who constitutes as a public official? - Correct answer -in government -has/appears to have substantial responsibility for or control over government affairs - High enough rank that public is interested in performance BEYOND gen. interest in Gov. Employees Geertz Decision - Correct answer should private individuals have to prove actual malice - Private individuals have not invited public scrutiny, do not have media access, and are not shaping public affairs - The judge decides whether the plaintiff is a private individual What are the three types of public figures - Correct answer 1) involuntary? 2) General purpose 3) Limited purpose Involuntary public figure - Correct answer a person who does not necessarily thrust himself or herself into public controversies voluntarily but is drawn into a given issue General purpose public figure - Correct answer -Persons who have "assumed roles of especial prominence" in society and have acquired such "persuasive power and influence" as to be public figures for all occasions. (Celebrities, athletes, musicians, etc.) -These people must prove actual malice regardless of the nature of the defamatory statement. Limited purpose public figure - Correct answer a person who has assumed the public spotlight with respect to one particular issue and who, as a defamation plaintiff, must show actual malice by the defendant only if the alleged libel is related to that issue Standards of voluntariness - Correct answer Strict: voluntarily sought public attention for issue Liberal: engaged in a course of content that invites public attention, even though the attention was not sought or desired. Types of privacy actions - Correct answer 1) Intrusion upon selection 2) Appropriation of another's name or likeness 3) Publicity to private facts 4) Placing another in a false light Elements of publicity to private facts tort - Correct answer -gives publicity - To a matter concerning the private life of another AND - The matter publicized would be highly offensive to a reasonable person AND - Not a legitimate concern to the public Publicity vs. Publication - Correct answer publication: any communication by the defendants Publicity: communicating message to public AT LARGE Common Law & Right to Privacy - Correct answer protects individuals from invasion of privacy from other individuals Matters considered private - Correct answer Sexual relations, Disgraceful or humiliating illnesses, intimate personal letters, Relations with family and close friends, Personal finances. Highly Offensive - Correct answer only when a reasonable person would feel seriously aggrieved is there basis for a privacy lawsuit Descriptive approach to Public Concern - Correct answer anything that interests the public or that news media publish Normative approach to public concern - Correct answer Information deemed by some authority (courts) as worth of public attention Calculating public concern - Correct answer 1) social value 2) Intimacy of facts enclosed/degree of intrusion 3) Prominence of plaintiff's role 4) Relevance; logical nexus between intimate details and public attention Social value is not determined about the specific details, but instead... - Correct answer the larger issue that it illustrates Necessity is NOT decisive... - Correct answer relevance is the standard regarding publicity of private facts Invasion of Privacy by False Light - Correct answer - gives publicity to matters that place another in a false light - The false light would be highly offensive to a reasonable person -the author or publisher acted with knowledge of falsity or reckless disregard Invasion of Privacy by Appropriation - Correct answer the use of another's name or likeness for one's own benefit, especially commercial gain. Newsworthiness Exception - Correct answer -Use of a person's name or likeness in connection with a matter of public interest is NOT considered misappropriation unless the use bears no real relationship to the matter of public interest. - Use of name/likeness in advertisement promoting a newsworthy publication bot appropriation Zucchini v. Scripps-Howard - Correct answer - Human cannonball - Scripps recorded him without his permission - Invasion on right of publicity, copyright confers on intellectual property Predominant Use Test - Correct answer -whether the use of a person's identity is essentially for expressive or commercial purposes -if pub predominantly exploits the identity of plaintiff for commercial purposes, the publisher is liable EVEN IF publication is (to some extent) expressive Transformative Use Test - Correct answer a test to determine whether a creator has transformed a person's name, picture, likeness, voice or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator. Factors of Transformative Use Test - Correct answer 1) is the likeliness merely one of the raw materials for the work? 2) Is the work the defendant's own expression? 3) Do the literal and imitative elements predominate or do the creative ones? 4) Does the marketability derive primarily from the use of the celebrity's image? 5) Is the artist's talent subordinated to creating a conventional portrait? No Real Relationship Test - Correct answer is the use of a celebrity's persona artistically relevant to the defendant's work? If so, use is protected Elements of White Test - Correct answer -use of a distinctive element of a plaintiff's identity OR - Plaintiff’s name or likeness to their commercial advantage -lack of consent by plaintiff Injury to plaintiff Hill Family false light - Correct answer roughed up by captors