COMM. LAW & ETHICS CH 2#

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Prior Restaint
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Censorship which occurs in advance of publication. Meant submitting all proposed publications to government censors who exercised considerable discretion regarding the content to be approved for publication.
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Seditious Libel
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The act of publishing a seditious statement
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The “FIVE” reason we should have “FREE SPEECH”
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1) Discover of truth 2) Participation in Democracy 3) Check on Government 4) Social Stability 5) Natural Law
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Gitlow VS New York
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Gitlow v. New York convicted Benjamin Gitlow for publishing a communist publication that made an at attempt to overthrow the government. The case applied incorporation to the states, and expanded speech protections of individuals. The courts used the “dangerous tendency” test to convict Gitlow.
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Expressive Conduct
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Non verbal conduct, to communicate a message
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Texas vs. Johnson
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During protest. Gregory Johnson burned the American flag. Court ruled in favor of Johnson 5-4, burning the flag is protected under the 1st Amendment as a form of free speech
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Near vs. Minnesota
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Upheld the Public Nuisance Law of 1925. It was popularly known as the “gag law.” The intent of the law was to give the state the right to suppress scandalous and libelous newspapers.
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The three exceptions to prior restraint
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1) War Effort 2) Obscene Publication 3) Incitement to act of violence
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RAV vs. City of St. Paul
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Defendant, R.A.V (three minors), made cross from broken chair legs, burned it on neighbor’s fenced in yard across the street, black neighbors
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Mclntyre vs. Ohio Elections Commission
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Court upheld Margaret McIntyre’s right to distribute anonymous political leaflets.
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What are TIME, PLACE, and MANNER restrictions, and What does content neutral mean?
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First Amendment jurisprudence provides that time, place, and manner restrictions on speech are constitutional if (1) they are content neutral (i.e., they do not treat speech differently based on content); (2) they are narrowly tailored to serve a governmental interest; and (3) they leave open ample alternative means of expression.
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What are FIVE things that are not protected by the first amendment
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1) obscenity 2) false of misleading commercial ads 3) perjury 4) fighting words 5) libel
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Doctrine of overbreadth
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Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others.
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Standard of judicial review
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Judicial Review is determine by the nature of speech or the circumstance of what speech appeared
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strict scrutiny test vs intermediate scrutiny test
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strict scrutiny test: government interference is allowed only if the government proves the gravest of justification intermediate scrutiny test: is a test used in some contexts to determine a law’s constitutionality.
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Compelling interest vs substantial interest
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is a concept in law that allows the government to regulate a given matter.
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Cohen vs. California
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1971; man wore obscene jacket protesting the Vietnam War, Supreme Court overturned conviction; speech wasn’t directed at anyone and the First Amendment, as applied through the Fourteenth, prohibits states from making the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace; the Court protected emotive (expression of emotion) and cognitive (expression of ideas)
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US vs. O’Brien
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A case decided by the Supreme Court of the United States that ruled that a criminal prohibition against burning a draft card did not violate the First Amendment’s guarantee of free speech.
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Can government control speech in government facilities ?
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yes, a special perplexity arises when government attempts to control speech it own media or facilities, such as county parks, city-owned auditoriums, public-school newspaper, or government employee newsletters.
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halewood vs. Kuhlmeier
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Supreme Court decision which held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection. The U.S Supreme Court held for the first time that public schools can limit what appears in school-sponsored student publications. Teen Pregnancy article
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What are two reasons for restricting corporate expression? –
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*protection of investment markets (stocks) *protection of the political press
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The Federal Election Campaign Act and Bipartisan Campaign Reform Act
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– 1971 Congress enacted the Federal Election Compaign Act to curb corruption in the election process. According to this act, no corporations could use corporate funds to make contributions to candidates in order to advise the public how to vote. The Federal Election Comission is an independent regulatory agency that was formed in 1975 to administer and enforce FECA. In two court cases (Buckley vs. Valeo & Austin vs. Michigan Chamber of Commerce ) the court acknowledged that the statute limiting independent expenditures for candidates burdens free expression but the court found that there was a compelling state interest in avoiding corruption or appearance of it. (the court felt like at that time, if they don’t limit independent expenditures there will be some corruption) These independent expenditures bans did not apply to non profit organizations that were not funded by business corporations (they were trying to keep business corp. from corrupting the elections). Those non profit organizations were allowed to receive gifts and donations to promote certain issues/matters; however, these organization could not make direct donations to a specific candidate. Up until 2010, no portion of an actual political fund could come from a corporate treasury. – Bipartisan Campaign Reform Act (BCRA) extensive set of Amendments set in 2002 brought about to because campaign spending got out of control – Corporate electioneering communications – BCRA prohibited it = any broadcast, cable, or satellite communications that refers to a candidate for federal office and it aired 30 days before primary election, or 60 days before general election, and is paid for by a corporation.
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Austin vs. Michigan Chamber of Commerce and McConnell vs. FEC, and how did Citizens United vs. FEC cause these to be overruled?
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— McConnell vs. FEC (senator McConnel was unhappy with the BCRA. The court upheld the act and said it’s not violating the First Amendments rights — Citizens United vs. FEC – Citizens United was a non-profit organization who advocated traditional values and they produced a critical documentary about Hilary Clinton. When they wanted to air it was the problem. They wanted to air it on cable during the 2008 presidential primary election season. Because Citizens United were funded somewhat by corporate donations it was subject to antielectionaly provisions and couldn’t be shown. At court they said: just because the documentary was critical about Clinton it didn’t mean they were telling people to vote or not to vote on her. They argued that campaign finance rules represented unconstitutional restrictions on first amendment and that their freedom of speech was being interrupted, and that corporations should have first amendment rights too. They were also saying Austin vs. Michigan should be overturned too. In January 2010, the supreme court ruled that the government may not ban political spending by corporations in presidential election. On of the justice said: the government may not supress political speech on the basis of the speaker’s corporate identity. It also applied to unions. This ruling made it possible for independent expenditures to come from corporate treasury. Corporations can now give unlimited amounts through a superpack or political action commitee, or a segregated fund (= it has to be separate from a candidate, = giving money to support issues, not candidates). In traditional political actions commitees individuals could only donate 5200 per candidate per electionary period (2 years); superpack had no limits on who and how much donates. So corporations could spends unlimited amounts to advocate on specific political issues (by purchasing media ads). Superpacks = corporations and/or unions can spend unlimited amounts on ideas that they want to promote becuase legally they cannot support a candidate monetarily. Sponsors of political ads must disclose where the money came from.
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Sedition Act of 1798
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the first act limiting speech. According to it, it was a crime to publish any writing with intent to interrupt content for the government. It expired in 1801, becuase it was in violation of the first amendment.
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Schenk vs. US and Clear and Present Danger Test
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(in 1919). Schenk has sent out pamphlets to drafted men encouraging military insubordination and obstruction of the draft. The supreme court upheld his conviction and created the Clear and Present Danger test – the point in which speech comes close enough to trigger serious harm that it loses its first amendment protection.
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Smith Act
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In 1939 the Smith Act outlawed speech and action that encouraged overthrow of the government or disloyalty in the military. It was barely used during WW2 because people were more supportive of it comparing to WW1. It really became popular was prosecuting communists during the Cold War. In the late 1950s more than 140 people were convicted. This came to a hold after the case of Yates vs. US
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Brandenburg vs. Ohio and Brandenburg Incitement Test
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– A KKK member made a rally speech and was filmed by a TV news crew. The court decided his conviction was unconstitutional because the speech should remain protected until the point where it is likely to incite imminent unlawful action – Brandenburg Incitement Test (is the speech really gonna turn into action)
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NY Times vs. US or the Pentagon Papers case
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♣ A consultant who had worked on a top secret history of the Vietnam War released documents to the NY Times and Washington Post. The documents dealt with the war that was currently going on, the justice department sought restraining orders on the publication of this top secret documents claiming that the national security was at stake. This was the first time that the government had ever sought a federal court order to prevent a publication. The request to stop publication in NY was granted but not the request for Washington Post. The supreme court decided that the papers could run the exerts because there was not enough justification for prior restrain, and it appeared that the government was more concerned about preventing embarrassment than the national security issue.
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The Patriot Act
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was signed after 9/11, The Patriot Act allows investigators to use the tools that were already available to investigate organized crime and drug trafficking to investigate suspected terrorists. Pretty much allows to spy and detain any suspicious terrorists.
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Weirum vs. RKO General Inc.
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— RKO General, Inc. (D) owned KHJ, a rock radio station with a large teen audience. KHJ conducted a contest in which a mobile disc jockey would announce his location and offer a cash prize to the first listener to reach it. A listener (a minor) attempted to follow the disc jockey to his next location. In his pursuit the listener negligently forced another car off the road, killing the driver. The decedent’s surviving wife and children (Weirum, P) brought suit against RKO. The trial court found in favor of Weirum and on appeal the court reversed. Weirum appealed RKO argued that hindsight is not foreseeability and there could be no negligence until after the first accident. RKO also argued that they were not liable because the First Amendment gave them the right to free speech. — RKO was liable because KHJ created an unreasonable risk of harm. It does not matter that an intervening act of a third party caused the injury, because this kind of behavior was foreseeable when the radio station began the contest. The general rule is that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. The primary consideration in determining duty is the foreseeability of the risk. Foreseeability is a question of fact for the jury to decide. The court held that in this case, it was foreseeable that this promotion would cause third parties to race to the announced location. RKO relied on the rule stating that absent a special relationship, an actor is under no duty to control the conduct of third parties. However, the rule has no application if Weirum’s claim is based on some affirmative act of RKO which created an undue risk of harm.
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Braun vs. Soldier of Fortune Magazine
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— On August 26, 1985, Shawn Trevor Doutre stood in Richard Braun’s driveway and fired at Braun’s car with a MAC 11 automatic pistol as Braun drove from his driveway. Braun rolled out of his car, falling face down onto the driveway. Doutre ran over to Braun, and fired two rounds into the back of Braun’s head. Braun’s sixteen-year-old son, Michael, was in the car with his father. He too rolled out of the car and lay on the other side of the driveway. After killing Braun, Doutre walked over to Michael, raised his gun, but did not fire. Instead, he put his finger over his lips and ran. Michael suffered a gunshot wound to his thigh, but survived. — Doutre worked with Richard Savage. Savage had been hired by Bruce Gastwirth, Braun’s business associate, to kill Braun. Gastwirth hired Savage through a personal advertisement run by Savage in Soldier of Fortune Magazine (hereinafter “SOF”). That ad read: — GUN FOR HIRE: 37-year old professional mercenary desires jobs. Vietnam Veteran. Discreet and very private. Body guard, courier, and other special skills. All jobs considered. Phone (615) 436-9785 (days) or (615) 436-4335 (nights), or write: Rt. 2, Box 682 Village Loop Road, Gatlinburg, TN 37738 (97). — Michael and his older brother Ian Braun filed claims against SOF, its parent company Omega Group, and Gastwirth for the wrongful death of their father.
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Difference between slander and libel
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Libel and slander are types of defamatory statements. Libel is a written defamatory statement, and slander is a spoken or oral defamatory statement.
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The six elements a libel plaintiff must prove to win a case
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1) Defamatory content 2)Falsity 3)Publication 4)Identification 5)Fault 6)Harm
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Libel per se vs. libel per quod
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— The more obvious of the two, libel per se, means “by itself” or “on the face of it.” The reader or viewer does not have to interpret or study in order to understand the libel per se because it is obvious or evident. Libel per se is the more serious of the two types, and persons libeled in this manner do not have to prove that they suffered damage to their reputations, monetary loss or other injury. Libel per se can support a lawsuit in itself. — The second type of libel is committed by inference and is more “hidden.” Its legal term, libel per quod, means “because of circumstance” or “by means of circumstance.” In libel per quod, the statements, words or phrases involved maybe harmless in themselves, but become libelous because of attached circumstances. Usually, such circumstances are unforeseen by the publisher, who can claim that the questionable material was published in good faith and without malice. However, good faith is not a complete defense.
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Who can be defamed and/or sued for libel?
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Anybody and businesses
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Trade libel and product disparagement –
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Trade libel is defined as the publication of a false statement of fact that is an intentional disparagement of the quality of the services or products of the plaintiff’s business and that result in pecuniary damages to the plaintiff.
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Rhetorical hyperbole
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A joke or an exaggeration
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Who is expected to prove falsity? —the plaintiff or defendant –
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plaintiff
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Philadelphia Papers vs. Hepps
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— In a series of articles, the Philadelphia Inquirer accused Hepps of links to organized crime and of capitalizing on that connection to influence the state legislature. The Pennsylvania Supreme Court favored Hepps and held that the newspaper was obligated to prove its accusations true. — The US supreme court reversed the decision the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages
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To win a court case, how false does something have to be?
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Substantially false and substantially true
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Fair comment privilege
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Fair comment is defined as a “common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff”.
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New York Times vs. Sullivan
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Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King’s efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan’s case collapsed.
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Actual malice
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in United States law is a condition required to establish libel against public officials or public figures and is defined as “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.”
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Public figures vs. private individuals –
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*Public Figures ♣ has achieved pervasive fame. Celebrities, talk show hosts, professional athletes, etc. (Corporations can be a public figure if they inject themselves into a public controversy.) *Private Citizens- ♣ Not in the spotlight. ♣ No access to media (communication through media.) ♣ Should be more protected
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The negligence standard vs. actual malice standard
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o Actual malice in United States law is a condition required to establish libel against public officials or public figures and is defined as “knowledge that the information was false” or that it was published “with reckless disregard of whether it was false or not.” o Negligence – A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).
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Gertz vs. Robert Welch
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o Gertz was an attorney hired by a family to sue a police officer who had killed the family’s son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a “Leninist” and a “Communist-fronter” because he chose to represent clients who were suing a law enforcement officer. Gertz won a jury verdict and an award of $50,000 but lost his libel suit because the trial judge found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964). The Court of Appeals for the Seventh Circuit affirmed the trial judge’s ruling. o The Court reversed the lower court decision, holding that Gertz’s rights had been violated and ordering a new trial. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. First, the recklessness standard applies only to defamation of public figures or public officials. Second, even for private individuals, states may not impose strict liability on news media. And third, any standard of fault less then recklessness limits private persons to actual injury.
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How can you avoid being charged with libel/defamation?
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o Don’t rely on anonymous information. o Seek out both sides of the story. o Provide targets of allegations a chance to respond.
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Who are public officials? Who are public figures? Limited purpose public figures?
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o Public official-someone with a government job who has authority to influence public policy or affect the public. o All-purpose public figure-has achieved pervasive fame. Celebrities, talk show hosts, professional athletes, etc. (Corporations can be a public figure if they inject themselves into a public controversy.) o Limited purpose public figure-entered the spotlight but only in a narrow context. Local political candidate, people involved in a local controversy, etc.
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What happens if someone is no longer a public figure but used to be?
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The court says that a person is still a public figure because he or she was involved in a particular controversy. Changing of circumstances or passing of time won’t change this.
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What are presumed damages? Actual? Compensatory? Special? Punitive?
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o Actual damages – Damages awarded to compensate a plaintiff for the real, proven injuries he or she suffered. o Compensatory damages – Damages awarded by a court to compensate a plaintiff for the actual harm suffered. o Punitive damages – Damages awarded in addition to compensatory damages in certain circumstances. Punitive damages are considered punishment and are awarded when the defendant’s behavior is found to be especially willful.
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Fair report or public record privilege
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o media may publish or republish a government proceeding even when there may be defamatory statements or false statements. o This is the exception to the rule. o Must be fair, no omissions or bias. Quotes and paraphrases must be accurate. o Privilege generally applies to live proceedings and documentary style information that is open to the public
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Retraction statutes
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A retraction statute is a law that allows a defamation defendant to retract, or take back, a defamatory statement
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Anti-SLAPP statutes
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SLAPP stands for Strategic Lawsuit Against Public Participation. A malicious or frivolous lawsuit that chills speech is the SLAPP; the statute employed against it is the anti-SLAPP statute, and the motion under the statute is an anti-SLAPP motion.
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What is the statute of limitations for defamation?
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o Statute of limitations-plaintiff must file a lawsuit in a specified amount of time or claim will be forever barred. o For defamation, time frame is 6 months to 3 years.
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Commercial Decency Act of 1996
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o The Communications Decency Act of 1996 (CDA), also known by some legislators as the “Great Internet Sex Panic of 1995”, was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act. o The Act was Title V of the Telecommunications Act of 1996. It was introduced to the Senate Committee of Commerce, Science, and Transportation by Senators James Exon (D-NE) and Slade Gorton (R-WA) in 1995. The amendment that became the CDA was added to the Telecommunications Act in the Senate by an 84-16 vote on June 14, 1995. o As eventually passed by Congress, Title V affected the Internet (and online communications) in two significant ways. First, it attempted to regulate both indecency (when available to children) and obscenity in cyberspace. Second, Section 230 of the Act has been interpreted to say that operators of Internet services are not to be construed as publishers (and thus not legally liable for the words of third parties who use their services).
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Zeran vs. America Online
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o Facts. Ken Zeran was defamed by an unknown AOL subscriber who made several posting on AOL advertising that Zeran had for sale certain tasteless t-shirts regarding the bombing of the Alfred P. Murrah Building in Oklahoma City, and which listed the telephone number from which he ran his home based business. He was inundated with telephone complaints and death threats. AOL removed the postings and cancelled the account of the unknown poster. Zeran sued AOL for defamation. The U.S. District Court for the Eastern District of Virginia at Alexandria dismissed the complaint. Zeran appealed to the Court of Appeals for the 4th Circuit. The Appeals Court affirmed the lower court’s decision. Zeran appealed to the Supreme Court, which denied his Petition for Writ of Certiorari. o Issues. The case presents the issue of whether an online service, website, or other interactive computer service, can be held liable for defamation made by third parties, where the defamed party has been injured by defamatory speech made by persons who post in an interactive computer service. The case presents the issue of whether 47 U.S.C. § 230 immunizes interactive computer services from such claims. o Holding. Both the District Court and the Court of Appeals ruled that 47 U.S.C. 230, which provides that “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider” immunizes AOL and any interactive computer service from claims based on information posted by a third party. Court lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred. The Supreme Court denied certiorari on June 18, 1998.

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