Term
| Lorillard Tobacco Inc. v. Reilly (2002) |
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Definition
○ A debate on outdoor advertising in Mass.
○ Violated a federal preemption - FCLAA
○ A good example of statutory law |
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Term
| • N.Y. Times v. US (1971) |
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Definition
○ US district court judge ordered the "Pentagon Papers" to stop being published in the NY Times
○ Supreme Court ordered the injunction to be lifted
○ Good example of Law of Equity - requiring judges to be fair and proves they have limited powers
○ Also a prior restraint case |
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Term
| Valley Broad Co. v. United States |
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Definition
○ The ban on broadcast advertising for gambling, including legalized private casinos, and related rules enforced by the FCC
§ Struck down by a federal district court (1993)
§ Affirmed by the 9th circuit court of appeals (1997)
§ Was denied review by the SC (certiorari denied) - but it was found to be unconstitutional |
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Term
| • Greater New Orleans Broad Ass'n, Inc. v. United States |
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Definition
○ The advertising ban was upheld in federal district court
○ Affirmed by the 5th court of appeals
○ SC vacated the decision
○ Ban was uphel again in federal district court
○ Affirmed again by the 5th court of appeals
○ Finally reversed by the US SC (1999)
§ Both of these cases show the conflict that often arises between federal courts |
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Term
| Gitlow v. United States ( 1925) |
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Definition
○ Gitlow was a communist that was convicted of anarchy
○ He published things that advocated the over throw of the government
○ Justice Sanford wrote that the 1st amendment is "incorporated" to the states through the 14th amendment
○ Protections of the 1st amendment are among the "privileges and immunities" included in the 14th |
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Term
| • Miami Herald Publishing Co. v. Tornillo (1974) |
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Definition
○ Florida passed a statue that made all newspapers give political candidates space to reply to editorials
○ Chilling effect - newspapers would not even both with it, didn’t publish anything political
○ Trial court - agreed with candidate
○ Fla. Supreme Court - agreed with candidate
○ USSC - found the statue did in fact invade the 1st amendment
○ Example of forced or compelled speech
○ Case has never been overturned by the USSC
○ Example of right to editorial discretion |
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Term
| Tinker v. Des Moines (1969) |
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Definition
○ Fed district court -- US 8th Circuit -- SCUS
○ SC ruled that a school district cannot prevent students from symbolically protesting a war by wearing black armbands, so long as the expression does not disrupt school activities
○ This is considered full (non-commercial) protected speech |
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Term
| Miller v. California (1973) |
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Definition
○ Miller sent out a whole bunch of material that many found offensive
○ The Miller test was for obscenity was used to help clarify what is considered obscene and thus not protected by the 1st amendment
§ Part 1 - whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest
§ Part 2 - whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law
§ Part 3 - whether the work, taken as a whole, lacks serious literacy, artistic, political, or scientific value
○ Example of unprotected sexual expression |
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Term
| • Ashcroft v. Free Speech Coalition (2002) |
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Definition
○ The SC found unconstitutional the COPA provision that required Internet providers of erotica to verify age of customers.
§ Said that it was not the least restrictive means of shielding minors from Internet pornography
○ Very little protection for the porn industry |
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Term
| • Chaplinsky v. New Hampshire (1942) |
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Definition
○ Man called the a marshal a "GD racketeer" and a "damned Facist" and was arrested
§ Was determined that fighting words that are not protected under the 1st amendment
§ "which by their very utterance inflict injury or tend to incite an immediate breach of peace" |
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Term
| • Cohen v. California (1971) |
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Definition
○ Wore a jacket that said "fuck the draft" into a court house
○ Was arrested and convicted
○ The SC however found it to be a protected speech |
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Term
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Definition
○ A cross was burned on the lawn of a black couple
○ Under an ordinance St. Paul had, this was considered "fighting words"
○ The SC considered it "underinclusive" and also "view-point discrimination"
○ So under this statue, their 1st amendment rights were being invaded |
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Term
| • Brandenburg v. Ohio (1969) |
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Definition
○ Ohio Criminal Syndicalism Statue
§ Criminalized “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform…”
○ Was a televised speech by a KKK leader that included derogatory language towards AA and Jews
○ Ohio appeals affirmed it, Ohio SC denied review, the USSC reversed the conviction
○ Great example about "incitement"
§ Only when there is an imminent danger of incitement of illegal activity can authorities step in to stop the speech |
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Term
| • Rice v. Paladin Enterpirses, Inc (1997) |
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Definition
○ Another incitement example
○ "Hit Man: A Technical Manual for independent Contractors"
○ James Perry murdered a woman, her son, and his nurse
○ Perry was hired by the husband, and had followed the advice of the book
○ In civil case, the federal district court ruled the content as protected by the first amendment as "abstract advocacy"
○ Case was reversed in the appeals court, saying it was no protected
○ USSC refused to hear the case and ultimately the case was settled out of court |
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Term
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Definition
○ This case helped the SC carve out another area that is not protected under the 1st amendment - intimidation
§ Virginia had a statute that said that it is unlawful to burn any cross
○ SC found this statute to be overboard because not all cross burnings are considered a threat or intimidation
○ Shows a little area of 1st amendment protection here |
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Term
| • Planned Parenthood v. ACLU (2002) |
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Definition
○ Website put up a list of doctors who practiced abortions, information included addresses, family names, etc
○ Three doctors had been killed
○ Plaintiffs filed suit under federal Freedom of Access to Clinics Entrances Act (FACE act)
○ A multimillion dollar jury verdict for plaintiffs
○ Intermediate appeals court affirmed the verdict
§ Said posters were "true threats"
○ USSC refused to review the case
○ Great example about how threats are not protected speech |
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Term
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Definition
○ The Communications Decency Act was designed to prohibit sexual content on the web to reaching 17 or younger kids
○ The USSC said that it was extremely vague and overbroad and found it to be unconstitutional
§ Said the internet was different from radio or tv because it was not AS available |
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Term
| • Simon & Schuster Inc. v. NY St. Crime Victims Bd. (1991) |
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Definition
○ Something about a statute that made all people convicted of a crime that wrote a book, play or whatever about the crime turn over their money they earned from it
§ Content-based regulation was applied
§ Strict scrutiny was also looked at
□ Did not pass the test |
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Term
| • Ward v. Rock Against Racism (1989) |
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Definition
○ There was an ordinance that said all users of the bandshell had to use the shell's sound equipment to ensure it was an appropriate level of noise
○ Time, Place, Manner regulation - it was content neutral
○ Passed the O' Brien test
○ Allows for other forms of communication |
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Term
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Definition
○ Near had published some material that attacked local officials
○ A judges injunction ordered him to stop, because he did not prove to have an "intent to publish with good motives for justifiable means."
○ The first time the USSC explicitly adopted a doctrine against prior restraint as constitutional law
○ A good example of prior restraint
§ The USSC ruled this was a form of censorship |
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Term
| • Va. St. Bd. Of Pharm v. Va. Citizens Consumer Council (1976) |
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Definition
○ A Virginia statute prohibited pharmacists from advertising their price for prescription drugs
○ This was the first case that the USSC said the 1st amendment protects purely commercial advertising
○ The court said that it was in the public interest to be informed and educated and that this commercial speech would help that
○ The court however noted that the government was free to regulate ads that were false, misleading, deceptive, or advertises something illegal |
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Term
| • Central Hudson Gas & Electric v. Public Service Commission of NY (1980) |
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Definition
○ The company had been promoting electricity use, something that went against the government's campaign to conserve energy
○ They were ordered to stop the advertising, and they appealed
○ Out of this case came the 4-part Central Hudson test for regulating commercial speech
§ 1 - is the ad true and not misleading, does it advertise something legal?
§ 2 - Is the asserted government interest substantial?
§ 3 - Does the regulation directly advance the governmental interest?
§ 4 - Is the regulation no more extensive than necessary to serve the governmental interest?
○ It is the burden of the government to prove constitutionality
○ In this case the NY statute was struck down |
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Term
| • 44 Liquormart, Inc. v. Rhode Island (1996) |
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Definition
○ State regulation that forbade the advertising of alcoholic beverages
○ USSC struck down the law as unconstitutional
§ RH did not prove that it helped curb drinking
§ It was not narrowly tailored enough |
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Term
| • Greater New Orleans Broadcasting v. United States (1999) |
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Definition
○ Banned broadcast ads for casino gambling
○ Was struck down by the USSC because it did not outweigh the economic benefit of the casinos, and it was not convinced that this helps curb some of the gambling
○ This case failed the Central Hudson test |
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Term
| • First National Bank v. Bellotti (1978) |
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Definition
○ A Mass. Law said that no bank of business corporation shall help fund anything that will influence of affect voters
○ Had criminal sanctions for violations
○ USSC said that just because this speech came from a corporation did not make it anymore wrong than from an individual
§ Also said that this type of speech is indispensible to decision-making in democracy
○ USSC struck down the law and ruled it unconstitutional
○ Determined to be in the public interests/issues |
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Term
| • Consol. Edison Co. of NY v. Pub. Serv. Comm. of NY (1980) |
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Definition
○ The company inserted info about the benefits of nuclear energy into their bill mailings
○ NRDC wanted room in their bills to put a rebuttal about nuclear energy, but the company refused |
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Term
| • Pac. Gas. & Elec. Co. v. Public Utilities Commission of Cali. (1986) |
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Definition
○ PUC order that applied to public utilities
§ Extra space in the billing envelope was required to be given to (TURN) a consumer advocacy group 4 times a year
§ PG&E was not allowed to edit the content
○ This was considered compelled speech, content based, and did not pass the strict scrutiny test
§ USSC ruled this as highly problematic
§ The state can directly control utility rates
○ Great example of issue advocacy |
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Term
| • Bolger v. Youngs Drug Products Corp. (1983) |
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Definition
○ Contraception pamphlets found to be "commercial" despite "discussions of important public issues such as prevention of venereal disease and family planning"
○ Pamphlets were conceded to be advertisements and made reference to specific products, and the company had clear economic motivation in mailing the pamphlets
○ This is a case that represents the distinction between "issue advocacy" versus "commercial speech" |
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Term
| • Kasky v. Nike, Inc. (2002) |
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Definition
○ Public allegations and the response of Nike
§ Something about sweatshops, and Nike sending out a letter to a bunch of people
○ The letter was ruled to be commercial because it did not pass the 3-part test of commercial speech that came from the Bolger case
§ 1 - is the speaker a commercial speaker?
§ 2 - is the content aimed at a commercial audience with an economic motivation? Format is considered.
§ 3 - Are there commercial representations of fact (about business operations, products, or services)?
○ Was found to be commercial speech in the Cal. SC |
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Term
| • FEC v. Mass. Citizens for life, Inc. (1990) |
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Definition
○ Federal statute banned corporations from using "independent expenditures" to support or oppose federal candidates
○ USSC said this is unconstitutional as applied to not-for-profit "ideological" corporations
○ Corporations and candidate advocacy |
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Term
| Citizens United v. FEC (2010) |
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Definition
○ Federal statute banned corporations from using "independent expenditures" for any "express candidate advocacy" or for "electioneering communications" close to elections (different than "contributions")
○ USSC said this was unconstitutional although the Court upheld disclosure requirements (must say who paid for the ad) |
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Term
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Definition
○ Nicknamed "mad dog Irwin"
○ Media had said he had confessed
○ His sixth amendment was heavily violated
○ Was given a second trial and was convicted again, but this time for life in prison, not death
§ USSC overturned it because of the prejudicial publicity
§ Media linked his prior history, six murders, and everything all together |
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Term
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Definition
○ Confessed before getting his rights
§ Confessed on camera which was then played over radio and tv to thousands of people
○ The broadcast was in violation of the sixth amendment
○ Prejudicial pre-trial publicity
○ Requested to move the trial, but the judge refused
○ A retrial was granted but he was again convicted |
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Term
| Marshall v. United States (1959) |
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Definition
○ Prejudicial publicity during trial
§ During the trial two damaging articles were written
§ The judge only suggested that they don’t read the articles, even though many of the jurors had already read the articles
§ The USSC overturned the conviction because of their exposure to the media |
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Term
| • Sheppard v. Maxwell (1966) |
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Definition
○ Based on 3 contexts
§ Pre-trial publicity
§ During-trial publicity
§ Trial conduct and atmosphere
○ There was a ton of media coverage
§ The jurors names were released and countless threats and tips were sent their way
○ USSC said that the totality of the instances is what deserves the case to be overturned |
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Term
| • Nebraska Press Assoc. v. Stuart (1976) |
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Definition
○ There was a court order that bared the press from reporting confessions and other facts "strongly implicative" of defendant until jury seated
○ This is considered prior restraint
§ Immediate and irreversible sanction
§ A "gag" order
○ Three things were looked at when examining the case
§ 1 - intense and pervasive prejudicial publicity that is likely to affect the fairness of the trial?
§ 2 - availability of other measures to ensure a fair trial?
§ 3 - probably efficacy of a gag order (prior restraint)
○ USSC found the order to be unconstitutional
○ While the gag order may have stopped the press, it seems that the community was small and probably heard via rumor
○ The test today is still used by judges |
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Term
| • Oklahoma Publishing Co. v. District ct. (1977) |
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Definition
○ Pretrial order by stat district court prohibiting publishing name or picture of minor accused of murder
○ Was ruled unconstitutional to gag publication of facts obtained during juvenile proceedings that media were allowed to attend
§ A form of prior restraint |
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Term
| Seattle Times Co. v. Rhinehart (1984) |
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Definition
○ The press was gagged, but since the press was one of the participants in the trial, they could be legally gagged
§ Because the had obtained information through the discovery process, that did not allow them to publish it |
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Term
| • United States v. Noriega (SD Fla. 1990) |
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Definition
○ CNN violated a gag order rule because they felt it was unconstitutional
○ CNN was still held in contempt of court though the gag order was found unconstitutional
○ *review the difference between the Dickinson and Providence Journal rules |
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Term
| Landmark Communication v. Va (1978) |
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Definition
○ A judge was under investigation a local paper reported his name
○ There was a state statute that criminalized "divulging" names of judges under investigation
○ USSC ruled this to be unconstitutional because it lies near the heart of the 1st amendment
○ Example of post-publication punishment |
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Term
| Smith v. Daily Mail Publishing Co. (1979) |
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Definition
○ There was a state statute that criminalized the publication of the names of juvenile offenders
○ The statute failed the USSC
§ It only included the papers
§ It did not achieve its goal
§ The information was legally gained
○ The USSC found it to be unconstitutional
○ An example of post-publication punishment |
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Term
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Definition
○ This is the case where the trial was deemed unfair because their was a "forest of equipment" in the courtroom
○ Back then the cameras were too big and bulky, proving to be a huge distraction
○ Ruled that the judge did not do everything possible to help prevent the distractions |
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Term
| Chandler v. Florida (1981) |
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Definition
○ The USSC simply said that states are allowed to experiment with the use of cameras
○ By no means however are they required to do so |
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Term
| • Richmond Newspapers Inc. v. Va. (1980) |
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Definition
○ Ruled that the press and public have a right to via the 1st amendment to attend criminal trials
○ This is the idea that public access to the trials is an important check on the system
○ Came after a judge allowed a closed trial to occur, in which sketchy stuff went down
○ Example of access to courts and records |
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Term
| • Globe Newspaper v. Superior Ct. (1982) |
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Definition
○ Extended the principle behind the Richmond Newspapers
○ Was a case where a judge ordered the trial to be closed to protect the identity of minors that were raped
○ USSC said that this was not narrowly tailored enough, and did not make it ok to close the entire trial |
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Term
| • Press-Enterprise Co. v. Superior Ct. (1984) (I) |
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Definition
○ A judge had closed the court during a few weeks of the jury selection process because of the nature of the case
○ The USSC said that this violated the 1st amendment, because it is the publics right to be involved in the selection of the jury of the case
○ Extended to criminal jury trial selection proceedings |
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Term
| • Press-Enterprise Co. v. Superior Ct. (1986) (II) |
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Definition
○ Extended 1st amendment rights to probably cause hearings in criminal cases
○ A judge tried to close it
○ USSC said that this was unconstitutional for it was a fundamental aspect of the trial process
○ A three part test for determining if a trial closure is constitutional was developed
§ 1 - "overriding interest" supporting closure and
§ 2 - no other alternatives available or possible and
§ 3 - even if so, closure must be narrowly restricted |
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