The First Amendment Flashcards
What are the policies of the First Amendment?
1) To promote uninhibited, wide open, and robust debate in policy issues;
2) To prevent against self-censorship;
3) To provide breathing space essential for the fruitful exercise of speech and press.
What is the First Amendment Analysis?
1) Can the plaintiff establish the common law test for defamation?
2) Does the defendant enjoy a defense or a privilege?
3) Are there First Amendment concerns in the problem?
What are the types of public figures?
1) Universal;
2) Voluntary Limited Public Figures;
3) Involuntary Limited Public Figure.
What is a universal public figure?
Individuals who have achieved pervasive fame or notoriety so as to become a public figure for most purposes and in most contexts.
Examples are athletes and celebrites
What is a voluntary limited public figure?
Individuals who have voluntarily injected themselves into a public controversy in order to influence the resolution of the issue involved.
Example - Edward Snowden
What is an involuntary limited public figure?
Those persons who have been thrust is not a controversy/ public eye through no purposeful action of their own.
Example - Mel Gibson’s wife in their divorce action.
What is a public official?
A person with position in the government that are so important that the public has an independent interest in the qualifications and performance of the person or who holds it.
What is Indicia of public official status?
Elected Official; Candidate for Elected Office; Judge; Appointment by Executive Office.
What is the “Actual Malice” Fault standard?
When a person makes a statement with knowledge that the speech was false or with reckless disregard of whether it is false or not.
What does “reckless disregard” in the definition of actual malice mean?
It is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. This means that there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts about the truth of the publication.
What does it mean to “entertain serious doubts?”
Can be demonstrated by showing the defendant had a high degree of awareness of a statement that was probably false.
This is held to a subjective standard.
What is the standard use to prove whether a person had entertained serious doubts about the truthfulness of a statement?
This is a subjective statement and is a question of law for the court to decide.
What is the NYT v. Sullivan fault standard?
Actual malice. A public official or figure must prove the defendant acted with actual malice in their defamatory statement.
What must be shown to prove actual malice?
Actual malice can be demonstrated by showing that the statement about the plaintiff was made with 1) knowledge that it was false or 2) with reckless disregard of whether it is false or not.
St. Amant v. Thompson Case
Does the Constitution allow a public official to recover damages for defamation?
The Constitution guarantees prohibit an official from recovering damages for a defamatory falsehood relating to his official conduct unless or he or she proves that the statement was made with actual malice.
