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What are the five freedoms guaranteed by the first amendment?

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• Speech, Press, Petition, Assembly, Religion • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Alien & Sedition Acts

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1798 President John Adams -gave the president power to kick people out of the country and punish them for saying things against the government, made it illegal to write print or publish or assist in any false, scandalous or malicious writing against the government of the United States. • Thomas Jefferson opposed the Alien and Sedition Acts, and when he became President in 1801 he stopped enforcing them and pardoned those who were still in jail

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Espionage Act of 1917

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and the Sedition Act of 1918. These acts were written to apply only in times of war. (banned criticizing the war effort)

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Schenk vs. US (1919)

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Unanimous decision against encouraging people not to enlist- Clear and present danger gives us permission to limit speech (Schenk was trying to get people not to enlist in the draft for WWI)

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Abrams v. US (1919

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Munitions strike, Adams was convicted but justice Holmes wrote a dissenting opinion that introduced the "marketplace of ideas" theory of free speech. Abrams was trying to get munitions people to strike. Oliver Wendell Holmes Jr. wrote clear and present danger, but wrote this dissent

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Gitlow v. New York (1925)

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trying to incite public riots, convicted of anarchy for publishing Left Wing Manifesto, first time Supreme Court got involved in state slaws • 14th amendment applies federal law to all states

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Near vs. Minnesota (1931)

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J. Near violated Minnesota law and the Supreme Court struck it down because it exercised prior restraint on expression.

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Framers of the constitution

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did not intend to protect all forms of speech.

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New York Times Co. v United States (1971)

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Pentagon Papers: The Nixon Administration tried to stop it, but the Supreme Court said no. Prior restraint is the most extreme oppression on first Amendment rights, espionage and sedition acts were still legal (CANNOT PREVENT SOMETHING FROM BEING PUBLSIHED)

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Brandenberg v. Ohio (1969)

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Clarence Brandenburg led a KKK rally that called for violence against Jews and African Americans. Ohio convicted him of inciting violence, but the Supreme Court said he state must prove "Imminent lawless activity" was likely to occur.

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What kind of Speech receives the most protection under the first amendment?

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Political Speech

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what must the government do or prove if it wants to restrict political speech?

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"Clear and Present Danger" standard still applies Libel, slander Compelling Government Interest test (a.k.a "Strict Scrutiny")

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Strict Scrutiny Test

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used whenever speech restrictions are content based (Can't say anything offensive). -Compelling government interest -Necessary to advance governmental interest -Narrowly tailored -Least restrictive means (most difficult to meet)

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Who has the burden of proof in a Criminal court case?

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Plaintiff, Prosecution Prosecutor's job to prove beyond reasonable doubt

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Who has the burden of proof when the constitutionality of a law is challenged?

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The defendant (non-governmental person) The government has the burden under political speech The default position in America is that you cannot restrict political speech

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Mid-Level Scrutiny Test (For time and place)

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• Sometimes called the O'Brien test or "time, place, manner" restrictions. • Used when speech restrictions are content neutral • Congress has authority to enact the law • Law furthers a substantial government interest • Alternative channels available for speech

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U.S. v. Obrien (1968)

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David O'Brien and three others burned draft cards, which was illegal Time, place, and manner restrictions are established

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Burson v. Freeman (1992)

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Tennessee banned campaigning within 100 feet of polling places Supreme court ruled it was a content-based restriction, supreme court upheld this law. Compelling government interest was the secret ballot

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Turner Broadcasting v. FCC (1994)

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FCC required cable to carry broadcast TV; cable companies sued and said it was a content restriction Supreme court said it was not a content-based restriction

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Less protected speech

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Purely commercial speech Broadcasting (limited resource) "only so many frequencies" Pornography (Miller v. California, 1973) 1) The work, taken as a whole by an average person applying contemporary community standards, appeals to the prurient interest 2) The work depicts sexual conduct in a patently offensive way 3) The work, when taken as a whole, lacks serious literary, artistic, political, or scientific value. Government is completely allowed to regulate pornography

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What was the role of advertising in the early 1800s?

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Localized, display advertising. Products were all localized, no need for literature, mailed ads. Word of Mouth was also very important.

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What factors led to the rise of advertising by the end of the 1800s?

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Mail order catalogs, mass production, railroads, industrial revolution, subsistence farming, specialized industries. Persuasive messaging takes over

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Schneider v. State of New Jersey (1939)

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Jehovah's witness was handing out pamphlets, did not have a permit, illegal to go door to door. This woman was arrested and appealed her arrest. Supreme Court ruled in her favor that the city ordinance violated her 1st amendment rights. The Supreme Court also made clear that her speech was NOT commercial speech-it was about religion. If this had been a commercial solicitation, it would have been stopped.

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Valentine v. Christensen (1942)

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Mr. Christensen bought a submarine and tied up to a dock off New York and gave tours, handed out handbills (flyers) trying tog et people to come take a tour. Sanitary Code: rule that you cannot handout flyers. He tried to get away by putting a political statement on the back (as a leeway). Was he really engaged in commercial speech? Was he tricking everyone? The law was upheld against Christensen.

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Pittsburg Press Company v. Commission on Human Relations (1973)

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Employer was looking for an employee, laced a classified ad for men only. Women complained about these help wanted ads and claimed them to be illegal. The newspaper blamed it on the advertisers. The Supreme Court upheld a ban on such ads because sex discrimination in hiring was illegal. Commercial speech that tries to sell something illegal is NOT protected.

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Bigelow v. Virginia (1975)

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Bigelow (from New York) was trying to advertise abortions in Virginia, where it was illegal. Roe v. Wade- provides a constitutional right to abortion and the Supreme Court said it was a violation of the first amendment. Advertising for constitutionally protected things is always protected.

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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)

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Pharmacists did not want advertising, specifically around prices. Consumer group wanted consumers to have a right to know how much medicine costs. The Supreme Court ruled that this information was important enough to consumers that it deserved first amendment protection. "It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that first Amendment makes for us." This is the best case for people who believe in the freedom of commercial speech. "

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Bates et. Al. V. State Bar of Arizona (1977)

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Lawyers wanted to advertise and quote prices on easy cases. John Bates and Van O'Steen wanted to advertise the price of legal services, but the state bar did not allow any advertising. The supreme court ultimately ruled the ad was protected by the first amendment, but reiterated several limits on commercial speech. 1. Deceptive or misleading ads could be prohibited. 2. Ads for illegal services were not allowed

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Central Hudson Gas & Electric v. Public Service Commission (1980)

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CHGE wanted to advertise electricity, but it violated conservation laws. Supreme Court agreed with CHGE and came up with a four-prong test: 1. Must be speech protected by first amendment- cannot be false or illegal. 2. Substantial Government interest 3. Regulation advances government interest 4. No more extensive than necessary (reasonable fit between regulations and government interest)

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US. V. Edge Broadcasting (1993)

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Edge broadcasting wanted to advertise Virginia lottery tickets, but it was illegal in North Carolina. Court applies four-prong test: 1. Is this speech protected by the first amendment? Yes, it was legal activity in Virginia 2. Substantial government interest: federalism (the idea that more localized government is better than centralized government). A law that gives North Carlonia its own standards needed to be preserved 3. Regulation advances government interest: Does it balance two interests? yes 4. Is there a reasonable fit? Yes.

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New York Times Co. v. Sullivan (1964)

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• Times ran an advertorial supporting Martin Luther King and seeking donations • Montgomery Public Safety Commissioner LB Sullivan sued for libel. • Alabama awarded Sullivan $500k • The Supreme Court said the NYT does not have to pay because this is protected free speech. The court ruled that false statements published about public officials are not libel unless made with actual malice.

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First National Bank of Boston v. Bellotti (1978)

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A Massachusetts law prohibited the use of "corporate funds to purchase advertising to influence the outcome of referendum elections, unless the corporation's business interests were directly involved." • First National bank (and others) sued the attorney general for a declarative judgment. • The Supreme Court ruled that Massachusetts's law restricted the kind of speech the first amendment was written to protect- even though the speaker, in this case was a corporation. You cannot limit use of corporate funds.

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Consolidated Edison Company of New York, Inc. v. Public service Commission of New York (1980)

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• New York banned public utility companies from including brochures or flyers about public issues in customers' monthly bills, since customers were "a captive audience." • The Supreme Court found that New York's rule was an unconstitutional restriction of free speech. • Justice Powell wrote, "The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of its source.

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Austin v. Michigan Chamber of Commerce (1980)

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• Chamber of Commerce wanted to financially support someone in an election. Michigan Campaign Finance Act prohibited corporations from contributing to candidates. • The Michigan chamber of commerce wanted to buy a newspaper ad supporting a pro business candidate, and sued for a declaratory judgment. • Disconnect between this case and First National bank v. bellottii. • The Supreme Court upheld the law because it said corporate wealth could unfairly influence elections. • Note: this is no longer the controlling precedent.

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How does the Supreme Court define commercial speech?

answer

According to Pittsburg Press Co. v. Pittsburg Commission on Human Relations (1973), the critical feature of commercial speech is that it does "no more than propose a transaction" Another way of defining: economic motivation. According to Bolger v. Young Drug Products Corp. (1983) NS DUN & BRADSTREET, INC. V. Greenmoss Builders, Inc. (1985), commercial speech is that which is "economically motivated." The book likes the first version because it is narrower and you want fewer things ot be classified as commercial speech.

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Commercial Speech

answer

• In 1985, the RJ Reynolds Tobacco Company bought an advertorial about smoking research. • The FTC tried to stop the ad, claiming it was misleading. • An administrative law judge ruled that the ad was not pure commercial speech. • The FTC overruled its judge and declared that commercial speech was a) paid for, b) economically motivated, c) designed to promote a product, and d) mentioned a particular product

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Commercial Speech

answer

The supreme court has been inconsistent in its coverage of commercial speech

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Two ways to define commercial speech

answer

Economic motivation Propose a transaction

question

What does it mean for commercial speech in (a) California and (b) the rest of the nation?

answer

a) California has an extremely narrow definition b) You could fall under the jurisdiction of California if you do business there

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Elements of Defamation are:

answer

1. False statement made about another person 2. Published to a third party 3. The publisher acted negligently or, in the case of public figures, with actual malice 4. The person was damaged.

question

Dun & Bradstreet Inc. v. Greenmoss Builders (1985)

answer

A credit rating agency published a false report that a construction company had filed for bankruptcy The Supreme Court found the agency guilty of libel, in part because its speech was commercial (economically motivated) and thus, less protected. Commercial speech has a lower standard in defamation.

question

US Healthcare Inc. v. Blue Cross-of Greater Philadelphia (1990)

answer

• Two healthcare companies attacked each other in ads and mailings • US Healthcare sued Blue Cross for libel, but the district courts said it would have to prove actual malice • The third circuit said Blue Cross was liable for defamation because it's speech was false commercial speech (economic motivation) • Easier to win a defamation lawsuit as "commercial speech" • First National bank of Boston v. Bellotti (1978) said that corporations can spend money to influence elections • Buckley v. Valeo (1976) said the government can limit the size of contributions to political campaigns, but could not limit campaign spending • FEC v. National Conservative Political Action Committee (1985) said the government could not limit PAC spending

question

CORPORATE POLTICAL SPEECH

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• The bipartisan Campaign Reform Act passed in 2002 (McCain -Feingold) • BCRA restricts "soft money" • Banned broadcast messaged paid for by corporations or unions 30 days before a primary and 60 days before a general election • Citizens United sued for a declaratory judgment so it could advertise Hillary: The Movie

question

CITIZENS UNITED v. Federal Election Commission (2010)

answer

In a 5-4 ruling, the court struck down the ban on corporate or union-sponsored message. IF the first amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

question

What is Defamation?

answer

• Exposing a person to hatred or contempt, lowering their esteem, and damaging their business. • Defamation is a tort, only brought up in civil cases. • Defamation takes the form of libel or slander. Libel is any recorded version of defamation. • Which one do advertisers and PR professionals need to worry about? More than half the time it will be libel because you issued a press release or created an ad or did an interview that was harmful.

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Libel per se

answer

take it by itself, it is definitely libelous

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Libel per quod

answer

under these particular circumstances, these would be bad. "The couple had a baby"...the couple just got married

question

Libel by implication or juxtaposition

answer

picture of Santa next to child porn story TRUTH IS A DEFENSE, but the burden of proof is not always brought on the plaintiff

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Elements of Libel

answer

• Defamation • Publication • Identification • Causation (of damage)

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Standard of Fault

answer

• Strict liability- if you got it wrong and it was defamatory, it is your fault. If your product doesn't work, it's on you. (old standard) • Negligence- when does a plaintiff have to show negligence? When it is a private person. • Actual Malice (reckless disregard or full knowledge). • When do you have to show actual malice? When it is a public figure.

question

Once a prima facia case has been made, there are several ways defendants can defend themselves against defamation suits...

answer

• Truth • Absolute Privilege • Conditional/qualified privilege • Fair Comment (opinion) • Interest Privilege • Neutral report privilege (some states)- if somebody is libeling or slandering another party and it is newsworthy, you can report the story, without spreading the defamation yourself • Right of reply • Can courts force publications to print retractions or allow replies? Yes

question

Who is liable? (Defamation)

answer

• Primary publisher • Republisher • Secondary publisher (if they had knowledge)- • What about ISPs? No, only if they knew about it or helped you • What if you are sharing on social media? You should be fine unless it is a wreckless personal attack

question

Elements of Product Disparagement

answer

1. Statement is disparaging 2. Published to third party 3. Statement is about specific product/service 4. Statement is the cause of actual harm 5. Caused financial damage (or likely will) 6. Statement is False 7. Actual Malice

question

Macpherson v. Buick Motor Co. (1916)

answer

Bucik was found liable for a faulty even though the wheel was emade b another company and sold by another company

question

Product Liability

answer

Caveat emptor or strict liability? Up to the company to disclose everything Caveat emptor: Let the buyer be aware There are more than a million product injury claims a year. Who can sue? Someone who is hurt by a product Who be sued?

question

Express Warranty:

answer

our product does this, lasts this long

question

Implied Warranty:

answer

things we assume about products that are reasonable

question

False Light

answer

False light means giving a false impression of someone that is highly offensive to a reasonable person. Examples: Eleanor Leverton (when she was 10 she was hit by a car and the photographer put it in the paper, associated with carelessness)

question

Elements of False Light

answer

1. False statement offending ordinary decency 2. Publication 3. Identification 4. Causation 5. Compensation 6. Actual Malice (reckless disregard)

question

Time Inc. v. Hill (1967)

answer

• In 1952, the Hill family was held hostage for 19 hours by three escaped convicts. The family was ultimately unharmed. • A book, a play, and movie drew unwanted attention to the family • The Hills sued life Magazine for a photo shoot involving actors at their old house.

question

Affirmative Defenses to False Light

answer

• Conditional/qualified privilege- police photos or records. If the government is using I, you can use it too • Opinion • Consent • Retractions or right of reply may help reduce judgments.

question

How is false light different form defamation?

answer

1. False light does not have to cause harm to the plaintiff's reputation. Mental anguish is enough 2. Actual malice is required in all cases of false light 3. False light only applies ot individual plaintiffs (not organizations)

question

Public Disclosure of Private, Embarassing Facts How is this different form defamation or false light?

answer

It's true! These are purely private facts nobody would want to be made public

question

The disclosed facts must be:

answer

• Highly offensive to a reasonable person • Not of legitimate public concern

question

Private facts Analysis

answer

Extent of intimacy v. newsworthiness Passage of time Consent Exceeded?

question

Cox Broadcasting v. Cohn (1975)

answer

- rape victim was exposed, was it fair for the tv station to air it? The court said yes, because it was true and newsworthy

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Involuntary Public Figure

answer

Someone who accidentally becomes famous

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How much of your private information is collected online?

answer

In Europe, there is a "right to be forgotten."

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Intrusion

answer

-going onto someone's property (trespassing) -the tort is called "intrusion upon seclusion" One who intentionally intrudes, physically or otherwise, ion the solitude or seclusion of another for his or her private

question

Elements of Intrusion

answer

Intrusive act has been committed that is highly offensive to a reasonable person The defendants acts caused hard The plaintiff is entitled to damages The defendant acted within the required degree of fault

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Subcategories of Inclusion

answer

Surreptitious surveillance Trespass Consent Exceeded

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Trespass

answer

Going onto someone's private property against their wishes.

question

Surreptitious surveillance

answer

Recording a phone conversation, video taping someone without consent

question

Consent Exceeded

answer

Many businesses invite people onto their property, but this does not mean that these businesses have consented to any and all activities on their property

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Infliction of emotional distress

answer

require a plaintiff to show that the defendant intentionally cause emotional distress It is hard dot win these cases against a media organization.

question

14th Amendment

answer

Federal law now applies to all states.

question

California

answer

strictest laws on commercial speech (broad definition)

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