Pg 42

Question 1

What are the two major different types of public figures under defamation?

Answer 1

• All-purpose pervasive public figure

- Limited purpose public figure

Question 2

What is the difference between an all purpose pervasive public figure and a limited purpose public figure under deformation?

Answer 2

– All purpose: someone that has pervasive fame/notoriety for all purposes and contexts. This is a household name who voluntarily thrusts themselves into the limelight.
– Limited: someone that voluntarily injects himself or is drawn into a particular public controversy. This is a public figure for a limited range of issues. Test: must be a public controversy and involvement must be voluntary.

Question 3

Is a public controversy and public interest considered to be the same thing under defamation?

Answer 3

No. Appearing in the society pages does not make you a public figure, and the socialite that is going through a divorce is not a public figure. Remember that to be a limited public figure there must be a public controversy and the involvement must be voluntary.

Question 4

How does defamation change when a private individual is involved?

Answer 4

Statements of a private nature about a private person do not require malice.

If it involves a public figure, public interest, or a public issue, then malice is required.

I.e.: a socialite that is getting a divorce is not public

Question 5

How do you determine if speech is public or private under defamation?

Answer 5

Look at the content, form, and context based on the whole record and all the circumstances.

Question 6

How are jokes treated under defamation?

Answer 6

There’s protection for statements that cannot reasonably be interpreted as stating actual facts. This includes: hyperbole, rhetorical speech, and figurative language.

Ie: Hustler case: with cartoon about guy and his mom in the outhouse

Question 7

What is privacy?

Answer 7

This involves the accurate description of private facts, and can be claimed even if something is not defamatory

Question 8

What are the four branches of privacy?

Answer 8

– false light
– appropriation of name or likeness for purposes of trade
– publicizing private details about a non-newsworthy event or person
– performer with a name that has commercial value claiming a right of publicity

Question 9

If information is obtained from public records, can someone claim privacy?

Answer 9

No. Ie: case report, suit

Question 10

If a defendant publishes confidential information that he stole, what is the right of action?

Answer 10

It would not be defamation, it would be privacy.

Question 11

What is obscenity and lewdness?

Answer 11

Indecency, lewdness, or offensive behaviour in appearance or expression. This is not thought to have any redeeming social importance, and is not an area that is protected by the Constitution, so it can be regulated

Question 12

What is the miller formulation test for obscenity?

Answer 12

ELEMENTS:
– Would the average person, applying contemporary standards, taken as a whole, determine that it applies to the prurient interest?
– Does the work depict or describe in a patently offensive way, sexual conduct that is specifically defined by the applicable state law to violate community standards?
- Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

Question 13

What is the prurient interest under obscenity question

Answer 13

Anything that appeals to a shameful or morbid interest in sex. This is an abnormal interest.

Violence and disgusting things are not considered to be obscene

Question 14

What is considered to be the “community“ under the miller formulation test for obscenity?

Answer 14

Local standards in the community of all adults.

Question 15

What are considered to be patently offensive representations of sexual conduct under the miller formulation test for obscenity?

Answer 15

Sexual conduct that goes beyond the customary limits of candour and an affront to contemporary community standards of decency. This is representations or descriptions of ultimate sexual acts, either normal or perverted, actual or simulated, representations or description of masturbation, excretory functions, lewd exhibition of genitals, etc.

I.e.: sadomasochistic acts

Question 16

At its core, patent offensiveness and the pruriency test mean what is restricted?

Answer 16

Basically hard-core porn

Question 17

What is the variable obscenity standard?

Answer 17

If material is targeted to appeal to the susceptibilities of a certain group, a standard measuring impact on that group can be applied. I.e.: minors, sexual deviance, etc.

Question 18

What kind of right to privacy do adults have under the Miller Formulation Test for obscenity?

Answer 18

Adults have the right to possess or enjoy obscenity in their own home. There’s no right to buy, sell, transport, or manufacture it.

Question 19

What is the child pornography exception to an adult’s right to privacy under obscenity?

Answer 19

Child pornography is prohibited under all circumstances because the state has an interest in the well-being of minors and in destroying the market for exploitative use of children

Question 20

If material is just explicit or graphic, is that thought to lack any social value under the miller formulation test for obscenity?

Answer 20

Government can use only limited controls, for things like where it can be accessed, or preventing access to minors. Watch out for over-breadth here because it is easy to go too far

Question 21

How is pornography with adults that look like children treated under the miller formulation test for obscenity?

Answer 21

This could possibly be considered obscene, depending on what the jury finds. The Ashcroft case said it didn’t involve real harm to real children and there is no evidence that showed that it encouraged pedophiles.

But if you advertise virtual pornography depicting actual children, that is banned if the defendant objectively believed that the material was child pornography