Chapter 7

Question 1

Occasions when 1st amendment isn’t absolute

Answer 1

Cannot give military secrets to enemies
Cannot give fraudulent info in commercial transactions
Cannot engage in discussions that amount to criminal conspiracies
Cannot lie under oath
Cannot exchange insider info in security transactions
LIBEL AND OBSCENITY=HELL NAH

Question 2

Libel and Obscenity (Framers)

Answer 2

Did not consider legitimate expression, however, we must distinguish versus regular speech

Question 3

Libel (definition)

Answer 3

If someone is falsely accused the injured party can bring libel actions against offenders if have defamed character or caused a loss of freedoms &/or assets (Cannot prohibit before published)

Question 4

1798 Sedition Act

Answer 4

Federalist Congress passed to prohibit seditious libel aka criticism of govt and govt officials-false, scandalous and malicious statements (Jefferson pardoned those convicted under act so SC didn’t see)

Question 5

Libel-NY Times vs. Sullivan-Precedent & Facts

Answer 5

Precedent: states were free to determine libel standards (for most common cases) and could allow defamed to receive monetary damages (compensatory and punitive)
Facts: NY Times ran ad criticizing Montgomery police’s response to civil rights demonstration. Sullivan (police chief) sued over falsehoods (the wrong song was mentioned). Court and SC of AL said if it had falsehoods and concerning to Sullivan he could receive damages b/c libelous per se.

Question 6

Libel-NY Times vs. Sullivan-Question & Opinion

Answer 6

Question: Is the ad by the NY Times libel?
Opinion:
Majority (Brennan): AL fails to provide safeguards for freedom of speech and press in 1st/14th. Just because a paid advertisement (he cites this material as expression) it is still under the freedom of expression b/c would be discriminatory (not all have access to printing facilities). If allegedly libelous normally-doesn’t differ b/c an ad. Unless factual error or defamatory content can’t be in trouble for criticizing public official. 1st amendment protects seditious libel and govt cannot punish. Public officials must demonstrate that the statement was FALSE & ACTUAL MALICE (reckless disregard of truth)
Concur (Black & Douglass): Do not need malice to violate-Times had an absolute, constitutional right to publish ad criticizing govt

Question 7

Expanding NY Times Test-Who is a public official?

Answer 7

Another precedent: illegal to knowingly publish falsehood with or w/o reckless regard to truth or falsity
To determine use 2 cases:
Curtis Publishing Co. v. Butts: Butts (GA football coach) sued Curtis for malice and libel b/c they published article saying that Butts trying to fix football game. Paper did little to verify story and were only concerned with defending “truth”
Associated Press v. Walker: Said Walker led violent crowd amidst desegregation protests and sued after this was published. Won compensatory and punitive, but punitive overturned b/c no malice. Argued that Walker was a public figure and eventually lost in SC because failed to show libel.

Question 8

Libel-Rosenbloom vs. Metromedia (1971)

Answer 8

Brennan stated that NY times test is based on whether it is a a matter of public or general interest-not if public official. Translation-really hard for individual to win libel cases.

Question 9

Libel-Gertz vs. Welch (1974)

Answer 9

Overturned Rosenbloom approach
Gertz (an attorney defending the victim of a police murder) sued Welch for libel b/c Welch stated in his far-right, anti-communist, paper that Gertz was trying to frame police and was a “communist-fronter.” Welch argued NY times test, but court agreed with Gertz and said he was a private figure

Question 10

Libel-Time, Inc. vs. Firestone (1976)

Answer 10

Reinforce Gertz; Mary Alice Sullivan and Russell Firestone had a nasty divorce, and accused each other of cheating. Time magazine published that divorced b/c of cruelty and adultery, and Mary Alice demand a retraction.SC stated she was not a public figure and did not need malice.
-In Gertz and Firestone, became public because of defamation, were not public figures

Question 11

Libel-Hustler Magazine vs. Falwell (1988)-Precedent and Facts

Answer 11

Precedent: Re-inforce NY Times Test. Intentional inflection is not important-public figures need actual malice (disregard of veracity of knowingly false statement(
Facts: Hustler produced an ad making fun of a liquor company using sexual innuendo and a prominent Protestant minister (Falwell). This parody advertisement stated that it was an ad and was fictitious. The SC acknowledged that Falwell was a public figure

Question 12

Libel-Hustler Magazine vs. Falwell (1988)-Question and Opinion

Answer 12

Question: Does this parody that states it is not factual a form of malice?
Opinion:
Majority (CJ Rehnquist): Protecting public figures oversteps 1st am.(1st has no “false” idea). Public figures only have protection if it was knowingly false or with reckless disregard of veracity. However, falsehoods are natural and banning would have chilling effect on speech (aka need breathing space). This breathing space allows public figures to recover for libel/defamation if both statement false and made with culpability. Allowing for expression in this form has expanded political discourse. Intentional infliction not enough-public figures need malice

Question 13

Obscenity

Answer 13

First defined by British Hicklin test, it is whether it will deprave and corrupt minds (used in Regina v. Heckling 1868). Heckling used three pillars biased towards obscenity 1. targets those whose minds are open to immoral influences and whose hands this might fall 2. can look at only a part (not whole) 3. did not look at social value of work, just obscene part

• court strengthened test in 1878 in Ex Parte Jacson (seeing obscene material aka info on abortions and birth control through mail)
• Butler v. MI (1957) said state law using Hicklin guidelines is unconstitutional-child standard is wrong

Question 14

Obscenity-Roth vs. US-Precedent and Facts

Answer 14

Precedent: Roth test (look at as a whole, avg person test, contemporary community standards, and only sexual content could potentially be obscenity)
Facts: Samuel Roth received a 26 count indigent for publishing and selling obscene material (also violated int’l copyright understandings)

Question 15

Obscenity-Roth vs. US-Question and Opinion

Answer 15

Question: Does federal obscenity statue violate provision of 1st saying “Congress shall pass no law..”
Opinion:
Majority (Brennan): 1st am is to bring about pol. and social change-not to protect libel and obscenity (interest of framers b/c passed soon after Constitution passed). Obscenity is not protected speech and judge as a whole (overturn Hicklin) by rational common people. Obscenity is not sex
Concur (CJ Warren): Nature of material relevant, if pornographic in science or art-may be different
Concur/Dissent (Harlan): Suppression of writing is an individual choice
Dissent (Douglas and Black): Believe 1st am. also covers obscenity

Question 16

Obscenity-Miller vs. CA (1973)-Precedent & Facts (Nixon era)

Answer 16

Precedent: Miller test-reaffirm roth (adult standard, work as whole, and obscenity=sexually oriented), also add states define what is obscene, and notion about redeeming quality is not important (must have serious literary, artistic, scientific value)
Facts: Mass mailing of explicit pamphlets to increase sales of his adult material (also discussing distribution of mail, interstate carrier, and importation from abroad)

Question 17

Obscenity-Miller vs. CA (1973)-Question and Opinion (Nixon era)

Answer 17

Question: Does mass dissemination of obscene material violate anti-obscenity laws?
Opinion:
Majority (CJ Burger): no prosecution for sale or exposure of obscene material unless “hard core”(not protected by 1st)
Dissent (Douglass): No obscenity laws before-but now a man is jailed. SC cannot decide on what is obscene, up to people to make constitutional amendment.
Dissent (Brennan, Stewart, and Marshall): constitutionally over broad law

Question 18

Obscenity-Child Pornography-NY vs. Ferber (1982)-History, Precedent, Facts

Answer 18

History: Butler v. Michigan (1957): Hicklin N/A to first because using child standard is wrong
Precedent: Miller not satisfactory for child porn
Facts: Ferber owned a bookstore and sold two movies that were sexual but not obscene of young boys. Laws in most states prohibiting production & distribution of child porn. Ferber argued violation of 1st, but lawmakers stated legitimate interest

Question 19

Obscenity-Child Pornography-NY vs. Ferber (1982)-Question, Opinion

Answer 19

Question: Is the NY criminal statue banning promotion of sexual performances under 16 constitutional?
Opinion:
Majority (White): Greater leeway in protecting children.
1. State has compelling interest to prevent abuse and sexual exploitation of children
2. Photos/film of sexual activity of juveniles intrinsically tied to sexual abuse b/c permanent harm by record and circulation and distribution of material must be closed to be controlled
3. Advertising/selling of child porn are economic motive and are illegal throughout nation (child labor)
4. It’s not literary or artistic or educational
5. Child porn can be own category outside 1st protection
Concur (Brennan and Marshall): State has special interest in protecting youth-can prevent youth exposure to porn, but not adult. If contribute to art or science less protection b/c the permanent record portion is invalid

Question 20

Cruelty and Violence

Answer 20

People sought to make violence and cruelty also outside of 1st am. US v. Stevens (2010)-stop sale of videos depicting animal cruelty & Brown v. Entertainment Merchants Assn (2011)-stop sale of violent video games. Court said NO-cannot use a balance of competing interest tests for 1st am. protection

Question 21

Violence-Brown vs. Entertainment Merchants Assn (2011)-Precedent, Facts

Answer 21

Precedent: Is violent content outside 1st am protection? No
Facts: CA Assembly passed a bill requiring sale or rental of violent video games to minors have appropriate labeling as to prevent violent, antisocial, aggressive behavior.

Question 22

Violence-Brown vs. Entertainment Merchants Assn (2011)-Question & Opinion

Answer 22

Question: Is violent content outside 1st am protection? No
Opinion:
Majority (Scalia): Video games can be form of artistic expression and moral judgements are for people, not the govt to decree. State lacks compelling interest and is only targeting one sector of kids’ media. New tech should be treated like old
Concur (Alito and CJ): not narrow enough, but we should seek to understand new tech. Lumps all minors together and classic works mention violence too
Dissent (Thomas): 1st am does not have right to speak to minors w/o parent approval
Dissent (Breyer): Compelling interest of state and parent.