Legal Rights and Restrictions in Political Speech and Elections, Study notes of Communication

Download Legal Rights and Restrictions in Political Speech and Elections and more Study notes Communication in PDF only on Docsity! Oh sh10/19/09 START OF NOTES FOR FINAL Political Speech Referenda and Public Issues  First National Bank of Boston v. Belloti o Protection for expenditures for referenda and other social and political issues o Corp couldn’t spend money on referenda on things that didn’t involve their business o FNB wanted to put up ads concerning referenda o SC said they had right to freedom of speech  Corporate speech but right to speak freely  Have protection on speech from referenda, wasn’t based on corp right to speak, based on rights of indiv to get info from companies  Consolodated Edison Co. vs. PSC of NY o Protection for one-sided political speech o Consolidated Edison = utilities corporation (gas, water)  Wanted to put flyers in utility bills info geared towards political issues o PSC said - If put one side, must put the other o SC said they didn’t have to put both sides  Protection for one side of political speech  Politician doesn’t have to give both sides, so neither does corporations  Pacific Gas & Electric Co. vs. PUC of CA o Protection against compelled speech o PGE sends out bills and citizens group wanted to make PGE to insert info in their mailings on how to save money  Wanted PUC to force PGE to do that o SC said that you cannot make corporation say certain things  Didn’t have to mail out the consumer groups flyer with their bills  Didn’t have to pay to send out other ppls speech Elections  Federal Election Campaign Act of 1971 o Applies to corporations and unions o Prohibits contributions or expenditures from corporate treasury in connection with candidates from federal office o Federal law- states can have their own o Cannot make expenditures or contributions from their own treasury o Purpose: to prevent corruption for the electoral process that might result if massive corporate capital enters the election process o Applies to business corporations  Profit making organizations  Austin v. Michigan Chamber of Comerce  Can put limits on expenditures on corporations o Does not apply to ideological corporations  Non-profits  Aren’t set up to make money  Except donations but don’t accept them with idea to conforming to whomever makes a donations  Federal Election Commission v. Mass. Citizens for Life, Inc.  Mass. = ideology corporation o Set up to promote certain idea o Anti-abortion group o Don’t want to make profit, just get idea out and influence  Prohibited contributions or expenditures o Gifts of money, ads, securities, member lists o Contributions of free or reduced price services to candidates o Expenditure does not include the cost of producing news, commentary, or editorial distributed by a broadcaster, newspaper or magazine  Permitted corporate participation in elections o Corporations can buy ads to discuss the issues (issue ads) associated with a candidate, but cant urge election or defeat of a candidate o Soft money contributions to state and local political parties for voter registration drives now limited  $10,000 a year  Donations given to organizations  Not promoting certain candidate, want ppl to vote o Corporations can form and support PACS – 4 issues involved  Sponsorship of PACS  Solicitation of funds  Contributions by PACS  Expenditures by PACS o Corporations and unions may support PACS and engage in partisan communication o Must be directed only to the corporate or union “family”  Disclosure requirements for elections o Donors and amounts of contributions and expenditures must be disclosed o Each political committee and federal candidate must register with the FEC o Each committee and candidate must keep a detailed record of contributions (above $50) and expenditures o Source of funding for ads must be disclosed (if the ad advocates election or defeat of a candidate)  Indentify the sponsor must be clear and conspicuous  Candidates and their committees must file periodic reports listing contributors and recipients  Why is broadcasting regulated? o Earliest regulation:  Ship to share and ship to ship maritime  Regulated commercial things  Problems = not just ships using radio, newspapers would get radio stations to advertise its paper  Regs included the Wireless Ship Act of 1910  Give them a transcript, write a notice  Political editorial Rule  Owners of station would take time out of day to specifically endorse a candidate or attack opposing one  Had to give opposing candidate notice after they aired the endorsement or attack  Opposing candidate had right to respond  All these were after the FCC dumped the Fairness Doctrine o 2000: RTNDA v. FCC  Combination of 20 year case by media organizations to get rid of fairness doctrine rule bc infringed on broadcasters first amendment right and free speech  After this, only thing that remains is the Zapple Rule  Two requirements of the 34 act involving political candidates o Equal opportunities rule  Allow one candidate to purchase time, have to allow opposing candidate or other legally qualified candidates for same office to purchase time at the same rate  Allow them equal opportunity  If let one use faciilties, must allow others too  Legally qualified candidates  Legally qualified under constitution or state laws o Reasonable access rule  Had to let candidates running for office have ads  Cant sensor ads or channel advertisements in certain times of the day only o Exempt from these rules  Legitimate news cast  News interview  Very broad  Ex: jay leno and conan are news interview o Can have john mccain without requiring obama to show up  News documentaries  Press conferences where candidate were to appear o Rules are still in effect  Lobbying o Federal Regulation of Lobbying Act of 1946  Supposed to regulate how you were to interact with law makers  Problem = vague  Found to be ineffective  Unclear statutory language and weak enforcement o Lobbying Disclosure Act of 1995  More disclosure  Requires reg. if government lobbying income exceeds $5,000 over 6 months  Defines lobbying  Contact with specific law makers o Those in senate and house o Control over what laws are passed o Not just corporations or ppl acting for corporations but nonprofits as well  Nonprofits must register  Doesn’t include grassroots groups  Must file semiannual statements  Excludes:  Some public officials  Newspapers and other mass media  People who testify before congress  Lawyers and others whose lobbying efforts are less than 20 percent of their work for clients o Honest Leadership and Open Government Act of 2007  Severe restrictions  Foreign Agents o Foreign Agents Restriction Act  Foreign countires cant spend money to influence our elections  Include public relations people in foreign owned companies  If passing out literature, must be labled its from whomever  Government concerned about how money can affect political process Commercial Speech Advertising had no 1st Amendment Protection @ 1st – just meant to make $ for the seller, not helping political discourse or helping people know who to vote for Valentine v. Chrestenson (1942)  1st time court laid out free speech doctrine  NY had a law banning hand bills (flyers) that were advertisements o Worried about keeping NY clean  Chrestenson owned submarine and wanted to advertise tours and started handing out flyers o Already had beef with city bc wanted to park sub at one wharf and they wouldn’t let him do it  Police officer tells him to stop o Takes the other side of the hand bill and writes political creed on it o Venting his rage against the city  Handbill on one side advertising tour of sub and other side vent about city government o Still purely commercial speech?  Court said he’s just trying to circumvent the law  One side of hand bill still about selling something – doesn’t matter that you wrote anti-government rant on one side  Still purely commercial speech and it didn’t have protection  If you wanna advertise, must follow rules with what government said o Can prohibit you from advertising without infringing on rights New York Times v. Sullivan (1964)  NY Times allows civil rights organization to purchase full page ad talking about police in Alabama o Police locking lunch room etc. o Errors in advertising o Paid political speech  Different from hand bill? o Even though its paid for, doesn’t change it from being political speech o Speech about movement that was critical to what was going on at that time  Pittsburg press co. vs. Pittsburg commission on Human relations o Late 60s, civil rights movement for blacks and women  Gender equality and equal pay o Many states passing laws with respect to equal opportunities for women o One of laws said that newspapers in Pittsburg couldn’t separate classified job ads by gender  Before this time, they were separating job ads  Women would get jobs that were like maid, secretary, teachers (domestic jobs)  Men would get jobs like banker, doctor, lawyer etc. o PPC owned paper that continued to do so o Human relations commission called them out but PPC said law violates 1st Amendment right of freedom of press o SC said it wasn’t violation of first amendment rights  All they want you to do is follow the law  Bigelow v. Virginia o Courts ruled abortion was legal o State of VA had law that you couldn’t print abortion referral services advertisements in papers o SC said that it was a legal service and constitutionally protected  Cannot prohibit ad for constitutionally protected service o State is supposed to protect safety and welfare  Having info about where to get one is impt under public policy  VA Board of Pharmacy v. Citizens Consumer Council o Board of pharm had rules for pharmacisits that are certified that must be followed o One of rules, cant advertise drug prices in windows o CCC represents elderly ppl, chronically ill  Ppl who would want to know price of drugs o Board was worried about the pharmacist doing the right thing and spending too much time worrying about advertising  Mixing the right drugs o Consumers have a right to information  Info is so necessary and basic to people of CCC  Need drugs and need to know the price in order to make the best descisions for them and to save money (since they do not work, and income is fixed)  Theories that apply to advertising o Marketplace of ideas o Self Governance  Need to have most information available that affect their life  Advertising helps them make those decisions  Need to know the cheapest price o 4th Estate  SC set out a test for what was seen as obscene  Lasted only until 1973 o Miller test  Miller v. CA  Miller = sent out sexually explicit materials over the mail  Sent out unsolicited advertisements  5 of those ads he sent to a resteraunt  Owner of resteraunt and mom opens envelops for sexually explicit  Arrested under CA statue that made in a misdemeanor  Appealed to SC o Said obscenity gets no 1st amendment protection  Obscenity must be defined  3 part test o If material in question appeals to prurient interest of the average person applying contemporary community values o Material depicts or describes in a patently offensive way sexual conduct specifically defined by applicable state law  sexual expression o Taken as a whole, it lacks serious literary artistic, political or scientific value  Look at the thing in total, not just clips of it o EX: AF catalog  Taken as a whole? – artistic o All 3 parts of the test must be met before a work is defined as obscene o EX: Madonna video – like a prayer video  Running in rural TX and goes into a church and theres jesus that cries blood, lots of candles, jesus statue comes to life and he dances with her and gospel choir singing in background, kisses him  EX: artist o 20 ppl naked in times square standing on glacier is art o Woman on street says that it isn’t art o ? of what’s obscene and whats art o Do we need to see naked flesh to see vulnerability of environment  Having ppl on glacier gets his point across about global warming – what artist says o Cant make distinctions through medium – might not be the medium but the message o What’s prurient Interest?  Appeal to be lascivious, shameful or morbid interest in sex  Concerned with things that are really far out there  EX: dead people, ppl being harmed for sexual gratification, etc.  Determined by an “average person” (adult) would find lascivious, shameful or morbid  Middle of the road people o What’s community standard?  Court says there should be no national standard because its made up of diverse communities  Whats allowed somewhere might not be allowed elsewhere  People on jury would be from that community and apply those standards  Obscenity = criminal offense, can get jail time  Pick people from local community who are affected by your crime to be on jury  Allows each community to decide what is obscense by opinion polls or jury votes  What about the internet?  Federal gov looks for strictest jurisdiction  Anyone can buy this material and grounds to bring case in any venue they chose since it can be attained by anyone anywhere  Minors o Courts have ruled that what is not obscene for adults may be obscene for kids o Government may ban sale of material to minors that appeals to the “prurient interest” of minors but not adults o Child porn  Works depicting kids under age 16 performing sexual acts are always illegal  Distributors and producers of child porn may be prosecuted  Want to protect kids  Always illegal  Recent Congressional Efforts to Protect kids from porn o Child Porn Provention act  Banned virtual child porn on internet  Child porn based in virtual kids not real ones  Problem:  No one is being exploited  Courts said its unconstitutional o Child online protection act  Communications indenceny act  Passed as Telecommunications act  Said online service provider website weren’t allowed to let kids get indecent and obscene info  Problem: didn’t define terms indecent or obscene in respect to the law o Adults would be restricted from receiving info  Found this vague and overbroad  Put in age verification mandate  Find out age before using certain materials  Court said this is too restrictive  Less restrictive way = to have parents install filters on computers o Parents block what kids are doing o Lessen possibility of adults being restricted to getting info they are constitutionally allowed to see  unconstitutional o Children’s internet protection act  Public libraries receive federal funding to run  Have computer stations to use internet  Anyone can use them  Perv looking at sexually explicit things in public sitting next to kids  Concerned with kid looking at what neighbor is seeing  If get federal funding, must block sexually explicit sits  If adult wanted to view that site, you can ask librarian to unblock the site  Court said this is constitutional  Interest isn’t being embarrassed by asking librarian to look at sexually explicit interest o All 3 have had constitutional challenges  Language is overbroad and vague  Banning adults from getting info as well as kid  Don’t define things o Some have gone too far and ban things adults should see that kids shouldn’t o Certain clauses in acts were found to be overbroad and vague  Some parts of act were seen as okay o States can pass laws prohibiting kids from seeing obscene materials  What is Patent offensiveness? o Part of definition for obscenity o An excess of sexual detail and the repetitive nature of the activity  Ex: sex tape with no plot and nothing outside of just sex o Scenes of erection, penetration or ejaculation  Total focus of content o Scenes of heterosexual or homosexual intercourse, fellatio, cunnilingus, maturbation and group sex  Mere nudity or the use of 4 letter words don’t count  What’s social value? o Court in Miller case said the work must be considered as a whole, not on basis of a few isolated passages o A “reasonable person” – not average person like in 1st part of Miller test—must determine if te work has any artistic, literary, political or scientific value  Look at it and ask if SOMEONE could find value in the work  Value = social, political, artistic value  Indecency: Compare o Has first amendment protection o Still can be regulated  FCC regulates indecency in broadcasting o Doesn’t apply to entire clip  Could just be a snip-it o Bono vs. Saving Private Ryan  bono  At Grammys  Gets an award  Says the f bomb live  Indecent?  Not at heart of expression  Not banning your expression  Content neutral timeplace manner  Can say whatever you want, just in certain boundaries  Afraid of secondary effects in areas they have families or lots of tourist  Scared of what comes along with it: crime, perverts, trash, advertisin you need wont be appropriate for neighborhood you’re in  Barnes v. Glen Theater  Indiana could ban nude dancing, the court ruled, to protect societal order and morality  South bend Indiana (home of Notre Dame) had ordanance that banned public indecency/nudity  Owners of strip clubs said that infringes on first amendment rights of dancers because expressive behavior  Nude dancing = expressive behavior and does receive little protection  Banning nudity in public  4 part test o Whether the governmental regulation is within the constitutional power of the government?  Can regulate nudity in public o Whether it furthers an impt or substantial governmental interest  Public health with ppl walking around naked o Whether governmental interest is unrelated to suppression of free expression o Whether restriction on 1st amendment freedoms is no greater than is essential to the furtherance of that interest o Violent Pornograpgy  Scientific studies say that there may be some link btw viewing of violent porn and real life aggression toward women  American Vooksellers Ass’n Inc. vs. Hudnut  Federal appeals court struck down Indianapolis ordance that made certain types of porn illegal  Ordinance defined porm as the graphic sexually explicit subordination of women and did not ban graphic sexually explicit material that did not subordinate women  Appeals court daid the ordanance was unconstitutional bc it banned material that wasn’t obscene and the decision as to what was banned porn depended ipn whether the work depicted women in a way that was officially correct  Court called the ordinance’s definition of porn thought control  Adults are loosing rights to receive information Media and Judiciary  When someone’s arrested for a crime and it’s covered in news, what happens  issues o Such large amount of publicity given to trials, might affect outcome o Allowing media in court rooms to cover trials, affects way trial participants behave infront of cameras o So many court shows, cop dramas, affects how ppl perceive the justice system  Expect DNA results to come back fast, etc…  The problem o First amendment provides for a free press  Free press acts as check on government, includes judiciary  Want to see judiciary carrying out justice properly  Just bc free press clause in 1st amendment, doesn’t mean free press was more impt than a fair trial o 6th amendment provides for a trial by impartial jury  Unbiased jury  Conflicts with right to a speedy trial o Both are in conflict o Leads to competing constitutional rights o Free press v. fair trial  Pretrial Publicity o Any kind of news reports, in broadcast or in print/internet, that might bias the jury against you if you’re criminal defendant  Jurors should be unbiased o Means as a juror you should be free from dominant perception of case o Look at facts presented in court, not in media, and make an evaluation and decision based on those facts o Don’t use information received before being placed on jury o They may be familiar with some of the facts of the case, not totally ignorant o They must not have a predisposition against the defendant o Defense attorney when ?ing juror, must weed out jurors biased against their client o They must cast aside any preconceived ideas and decide the case on the evidence in court  The US Supreme Court will overturn a conviction due to pretrial publicity only if: o The court finds identifiable bias in individual jurors  Erwin case in book  On trial for murdering a woman  Polled the pool of jury members and almost all thought he was guilty for the trial  8 out of 10 jurors said he was guilty o An extraoridanry amount of prejudicial publicity in the media raises a presumption of prejudice  Pretrial publicity that can be prejudicial o Confessions o Prior criminal records o Results of police/investigator tests o Character flaws or lifestyle o Potential witness, testimony or other evidence o Speculation by officials  Worst case scenario o Sheppard v. Maxwell  Doctor living a nice life and wakes up to find man standing over body of wife  Knocks out the man and neighbor comes over and finds wife dead  Convicted of murdering his wife and sent to jail  Appeals focused on so much pretrial publicity so couldn’t get a fair trial  Things in paper, journalists could sit right next to where he was sitting in court, etc.  SC overturned conviction  Died soon after he got out of prison  Shows how bad it can go with pretrial publicity  Remedies to lessen the impact of pretrial publicity o Change of venue  Taking case and moving it out of parish where crime happen  Move to neighboring county where publicity hasn’t spread o Change of venire  Bussing in jurors from outside your county  Don’t move whole case, just bus in jury from another county o Continuance  Judge will grant motion to push back the jury selection date in order to lessen amount of publicity going on  As time goes on, news moves on to different story and ppl forget what’s going on  Waives right to speedy trial because it takes more time o Severance  2 or more defendants being tried for same case o Voir Dire  Jury selection  How attorneys go about selecting juries from pool  Give written questionnaires to weed out ppl  Then have people sit in jury box and will ask them questions to try to rid juries asking those ?s  2 types of challenges  Challenges for cause  Attorney convince judge to get rid of juror for specific reason  Ex: juror is racist from ?s they answered  Peremptory challenges  Challenges reserved for ppl judge wont let u kick off jury  Little amount of these given  Cant use challenges to disclude certain kind of person off jury  Ex: cant kick all black ppl off jury  Want to get jurors that are kind of leaning towards your side or think are maluable (can be swaded to your side) o Sequestration  You are holding jury in hotel and have to live together, eat together, hang out together  Have news channels in hotel blocked, if get newspaper, guard will cut out articles about trial  Told not to discuss case outside of jury room o Acts done in disrespect of the court or its process or which obstruct the administration of justice o Ex: yelling something outloud in court  Civil contempt o Failure to do something which the party is ordered by the court to do o Ex: john gosling – almost found in contempt because wouldn’t return $ he took out of account, could have been placed in jail since it was court ordered o Held ppl in contempt with things done outside of court  Paper printed something about judge in trial (like not running court well) and judge takes personal offense and tries to hold journalist in criminal contempt  Courts said you cant hold someone in contempt for writing crisitcims about judges  Punishment for Criminal Contempt o Person could be charged with a contempt crime under state statue  Or summarily held in contempt by the judge o Person could be fined and/or o Imprisoned (up to 6 mos w/out jury trial) o Up to the judge to decide punishment o Purpose of punishment is to indicate the dignity of the court  Punishment for Civil Contempt o The person is ordered into custody o Fined progrsssively o Or both o Punishment remains in effect until the contempt is purged thru compliance o You decide your own fate  Protection for News Sources o The problem  Journalists sometimes gather information that others (court litigants and law enforcement officials) want.  Sometimes the information can be obtained from other sources, sometimes not  Those who need the information for litigation or law enforcement will often issue subpoena to the journalists  No way to get this information  2 kinds o Appear before court and testify  Aren’t new  1848  Journalist subpoena before Senate, refused to give up information about who gave him info on treaty o Produce materials we want o The subpoena is usually turned over to the supervisor for a decision on whether to testitfy (and produce documents and other requested materials) or challenge the subpoena o Usually when a subpoena is challenged, it is done on the basis of a priviledge o Priviledge can be based on  Common law  Shouldn’t be forced to testify because look at cases in district, journalists have been priviledged not to testify in these case  Courts rule that journalists didn’t have to come and testify and provide these documents  Constitutional proviledge (state or federal)  Infringes on freedom of press if asked to testify  People speak to journalists sometimes if their name is kept private, ppl will stop talking if they have to testify and journalists will lose sources  Statutory priviledge  Shield laws o Its argued that journalists need a priviledge of confidentiality with their sources with respect to the identity and sometimes the information itself  If cant keep name private, wont be able to get certain information  Name will be kept secret for journalists to only know o Those who challenge the subpoena can do so on a Motion to Quash the subpoena  Subpoena = court order so file against that court order o In deciding this motion, court considers  Relevance of information the government/plantiff/defendant is seeking  Need for the information or document  Whats purpose? o Harass press? o Find out name of person who called you a wife beater? o Is the info that needs to go before grand jury?  Alternative sources to that information  Can person asking for info get this info from some other source w/out having to ask press for information?  Effect on the administration of justice  Without this information, can justice be served?  Can they bring an adequate case against defendant without information?  Is the information/materials journalists have necessary to law enforcement’s case? o If granted, then no need for the journalists to testify. If denied, journalists can appeal  Motion to Quash  During appeal time, don’t have to go to jail o When appeals fail, journalist must testify or risk a contempt citation o Failure to comply leads to jail o Branzburg v. Hayes  Combination of 3 cases  Reporter was sent out to Oakland to report on Black Panther party  Have a lot of civil rights movements, Vietnam war (lots of tension in country)  BP o FBI considered a national terrorist organization o Investigating them  Reporter gets close to them and allowed to report on them and publishes articles in NYT  TV reporter in Mass does the same thing with BP party  Last reporter is reporting on drug use and making of hash and publishing these stories  Once stories are published, people and government are interested in how you got the information  FBI called journalist and told him to act as an informant and journalist turns them down  Government issued subpoena  Journalists had to appear before court and provide information they want  Journalist subpoenaed b4 grand jury  GJ o Does government have adequate reason to charge someone with a crime? o Group of citizens called to serve o Not regular trial  Prosecution shows evidence they have to endite person  Violating freedom of press because ppl wont talk to them  Journalists say they have a priviledge by freedom of press and not being an arm of government to not testify  SC said there is no 1st amendment priviledge for journalists when subpoeneaed to testify before a grand jury  No difference btw journalist and regular citizens  Have occupation where they have to gather info but doesn’t make them higher than citizens to not appear in court  Incidental that sources may stop talking to journalists if they testify  Leaves open the possibility for states to offer protection for journalists through constitutions or legislative process  Other states have priviledge in common law or constitution protecting journalists  LA has this o Dissenting Opinion  3 part test to force reporters to appear and give up information  Must meet all 3 criteria  When calling a reporter to appear before a grand jury to reveal confidences, the government must:  Show that there is probable cause to believe that the newsperson has information that is clearly relevant to a specific probable violation of law o Probable cause is a reason, has to be a supported reason that the government believes journalist has this info o Privacy Protection Act of 1980  Created to protect newsrooms and work products protected from searches by law enforcement  2 categories of materials protected  Work products o Materials that convey information o Ex: reporter’s notes, outtakes, undeveloped file o Materials whose purpose to convey info to the public  Documentary materials o Materials upon which information is formally recorded o Ex: government reports and manuscripts  Government must use a subpoena to get either work products or documentary materials  Exceptions  Work product exceptions o Where there is probable cause to believe the person who has the materials committed a crime related to them o Where immediate seizure is necessary to prevent death or serious harm to person  Documentary materials exceptions o Where there is reason to believe that the noptice associated with gaining a subpoena would result in destruction, alteration or concealment of such materials  Access to Government o Federal freedom of information act o Dopted by congree in 1966 o Governs access to federal records o Provides in general that records of the federal government o There are 9 exemptions to the act  Exemptions do not require withholding they permit it 1. National security a. Information that is classified or will hurt country 2. Agency rules and practices a. Intraagency information b. Public isn’t interested in when you can take safe breaks during work or how long breaks are i. Mudane information so no reason to disclose ii. If disclose info, can be taxing on agency to make copies of all this stuff 3. Specific statutory execptions a. Certain statues that prohibit government from disclosing certain materials i. Ex: DMV aren’t allowed to give anyone information connected to liscense 4. Confidential business information a. Secret formula for Coke 5. Internal memoranda a. Simple questions about things and how the agency will run itself b. Related 6. Personnel or medical files a. Boss’ annual evaluation of you cannot be released 7. Law enforcement investigations a. Possibility information will interfere with investigation 8. Banking reports 9. Information about oil and gas wells o Privacy Act of 1974  Right to get your own file about yourself o Family Educational Rights and Privacy Act  Buckley Amendment  Relates to college kids  If a school, gets federal funds, they must keep certain academic records private o Driver’s License Protection Act  Passed that all state DMVs must not disclose your DL related information (picture, address, SS number, etc.)  States challenged this and said its unconstitutional but found constitutional