Understanding Levels of Speech and Defamation in U.S. Law, Exams of Biopharmaceutics and Pharmacokinetics

Download Understanding Levels of Speech and Defamation in U.S. Law and more Exams Biopharmaceutics and Pharmacokinetics in PDF only on Docsity! JOMC 486-Midterm Exam Questions and Verified Answers. Paul Robert Cohen - Correct answer in 1986 - Arrested for wearing a jacket that said "F*** the Draft" Violations of the first amendment -Obscenity -Hate Speech -Fighting Words -Incitement of unlawful activity Issue: no violence Cohen had the right to wear the jacket be communicating emotional feeling // violation to his freedom of speech Words of the First Amendment applying to media - Correct answer Law, abridging, freedom, speech, and press Government power to punish or restrict expression is limited to a few - Correct answer Obscenity, libel, fighting words, threats, and fraud Level of Scrutiny - Correct answer Rational-basis Strict Scrutiny Intermediate scrutiny Rational Basis - Correct answer In U.S. constitutional law, the lowest level of scrutiny applied by courts deciding constitutional issues through judicial review. Almost always found constitutional. Ex: Airbags in cars Strict Scrutiny - Correct answer when a law imposes limitations on a fundamental right, such as freedom of speech or freedom of religion. Almost always found unconstitutional. Ex: National Security Intermediate scrutiny - Correct answer Used in cases involving expressive conduct Ex: Marches not during rush hour Levels of Speech - Correct answer Pure, intermediate, unprotected Pure Speech - Correct answer given the highest level of protection; examples: public speech, writing a letter, publishing a newspaper or book Intermediate - Correct answer examples: symbolic speech (conduct or action), advertising, broadcasting Unprotected - Correct answer examples: fighting words, libel, obscenity, threats, fraud Brandenburg v. Ohio - Correct answer Brandenburg Test - Correct answer state may punish speech that is seditious or may encourage criminal behavior if there is evidence of: -intent to incite violence -imminence of violence -likelihood of violence U.S v O'Brien - Correct answer to protest the Vietnam War David Paul O'Brien burned his draft card On the back of the card it says any destruction is illegal This is considered expressive speech, O'Brien was trying to communicate/send a message O'Brien Test - Correct answer used for determining when the state interest in regulating conduct is sufficient to justify some limitations on symbolic expression or actions that have some expressive purpose -is the regulation within the constitutional power of government? -does it further SUBSTANTIAL governmental interest? -is the governmental interest unrelated to the suppression of expression? -is any incidental restriction of First Amendment freedoms no greater than necessary for furthering the governmental interest? If yes to all four it will be constitutional Fighting words - Correct answer which by their very utterance inflict injury or tend to incite an immediate breach of the peace; US Supreme Court declared regulation of fighting words must be content neutral; fighting words are outside First Amendment Characteristics of fighting words - Correct answer personal insults likely to provoke violent response; spoken in a face-to-face situation; concern is whether the recipient of the words will respond with violence against the speaker R.A.V. v. City of St. Paul - Correct answer Characteristics of Seditious Speech - Correct answer calls for political, social or economic change through violent, unlawful means; may be spoken or written; concern is whether the recipients of the words will commit violent or illegal acts against third parties Prior Restraints - Correct answer preventing publication; publication must inevitably, directly and immediately cause harm to nation security in order to be constitutional Elements of Libel - Correct answer Defamation The Milkovich decision - Correct answer a defamatory statement of fact, phrased as a statement of opinion, may be the basis for a libel action However, four principles, developed in other cases, provide substantial protection for opinions as well as for other kinds of statements **there were implications that he was lying to the court Accusing him of the crime 1. Plaintiffs must prove defamatory statements about matters of public concern are false 2. Rhetorical hyperboles or imaginative expressions are not factual and cannot be falsified. 3. Public officials and public figures must prove actual malice 4. Appellate courts will review libel judgments with extra care Anti-SLAPP Laws - Correct answer Strategic Lawsuits Against Public Participation; used when individuals or businesses use libel lawsuits and threats of lawsuits to quiet or prevent criticism of their actions; do the following: allow the defendant to move for dismissal of the suit; require judges to consider the motion early in the case and to make a determination of whether the lawsuit interferes with protected speech; require the plaintiff to demonstrate probability of succeeding on the merits if the judge finds a threat to protected speech; allow the judge to dismiss the lawsuit if the plaintiff fails to present evidence sufficient to justify continuing the suit; and allow the judge to order the plaintiff to pay the defendant's attorney fees Impacts of Sullivan Case - Correct answer -first amendment limits state libel law -actual malice rule -Clear-and-convincing evidence standard -heightened appellate review of libel judgments Actual Malice - Correct answer public officials and public figures must prove to win a libel suit; means proving the publisher either: knew the communication was false and defamatory of the other or, acted in reckless disregard of whether it was false and defamatory Indicators of actual malice - Correct answer -the publisher simply makes up a story -the story is based wholly on information from an unverified anonymous source -the story is so inherently improbable that only a reckless person would circulate it without substantiation -there are obvious reasons to doubt the veracity of the source -the publisher failed to check known sources which would conclusively establish truth or falsity -the publisher continued to rely on information from a source which the source disavowed Actual malice must be shown when - Correct answer a public official is the plaintiff A public figure is the plaintiff A private plaintiff wants punitive damages Public official - Correct answer in government Has or appears to have substantial responsibility for or control over government affairs High enough rank that public has an interest in persons performance and qualifications beyond the general interest in government employees Geertz Decision - Correct answer -should private individuals have to prove actual malice? -states may set a lesser standard of fault for private individuals to recover actual damages -the judge decides whether the plaintiff is a public official, public figure or private individual Types of Public figures - Correct answer Involuntary General-Purpose Limited Purpose Involuntary - Correct answer a person who has become a public figure through no purposeful action of his or her own. So rare as to be almost nonexistent General-Purpose - Correct answer Persons who have "assumed roles of special prominence" in society and have acquired such "persuasive power and influence" as to be public figures for all occasions. These people must prove actual malice regardless of the nature of the defamatory statement Ex: Celebrity status, ability to influence opinions and actions of others, extent of previous press coverage, voluntariness of exposure, access to media Limited purpose - Correct answer Persons who have "thrust themselves to the forefront of a particular public controversy with the aim of influencing the resolution of that controversy Must prove actual malice only for defamatory statements related to the public controversy EX: Isolate a pre-existing public controversy Determine plaintiff voluntarily played a prominent role in the controversy Make sure the defamatory statements are germane to the plaintiff's role in the controversy Determine plaintiff had a regular and continuing access to the media Involuntary public figure - Correct answer they become "news," victims of crime, victims of catastrophes or accidents, involved in judicial proceedings or other events that attract public attention Common Law - Correct answer Also known as state statute. Protects individuals from invasions of privacy by other individuals Types of Privacy Actions - Correct answer Intrusion upon seclusion Appropriation of another's name or likeness Publicity to private facts Placing another in a false light Publicity vs. Publication - Correct answer "Publication" means any communication by the defendant to a third person Publicity means communicating the message to the public at large Matters Considered Private - Correct answer Sexual relations; Disgraceful or humiliating illnesses; Intimate personal letters; Relations with family and close friends; Personal finances Matters of Public Concern - Correct answer Public has an interest in learning about many matters. Such matters cannot be considered private. The plaintiff must prove the subject is NOT of public concern or not newsworthy This may be required by the Constitution False light - Correct answer Misattribution of a person's action or beliefs Elements of False Light - Correct answer one may be liable for invasion of privacy by false light if one Gives publicity to matters that place another in a false light; The false light would be highly offensive to a reasonable persons, and The author or publisher acted with knowledge of falsity or reckless disregard for falsity Elements of Appropriation - Correct answer one may be liable for invasion of privacy by appropriation if one Appropriates to her or his own use or benefit The name or likeness of another -*also called misappropriation Plethora of Tests - Correct answer various state and federal courts have used differing tests to determine when celebrities can protect their personas The white test Predominant-use test Transformative-use test No-real-relationship test Strict scrutiny Predominant-Use Test - Correct answer the central question in right of publicity cases is whether the use of a person's identity is essentially for expressive purposes or for commercial purposes If the publication predominantly exploit the identity of the plaintiff for commercial purposes, the publisher is liable, even if the use is to some extent expressive