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Digital Media Law Digital Media Law Second Edition Ashley Packard A John Wiley & Sons, Ltd., Publication This edition first published 2013 © 2013 John Wiley & Sons, Inc Edition history: 1e (Wiley-Blackwell, 2010) Wiley-Blackwell is an imprint of John Wiley & Sons, formed by the merger of Wiley’s global Scientific, Technical and Medical business with Blackwell Publishing. Registered Office John Wiley & Sons Ltd, The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK Editorial Offices 350 Main Street, Malden, MA 02148-5020, USA 9600 Garsington Road, Oxford, OX4 2DQ, UK The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK For details of our global editorial offices, for customer services, and for information about how to apply for permission to reuse the copyright material in this book please see our website at www.wiley.com/wiley-blackwell. The right of Ashley Packard to be identified as the author of this work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, except as permitted by the UK Copyright, Designs and Patents Act 1988, without the prior permission of the publisher. Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. Designations used by companies to distinguish their products are often claimed as trademarks. All brand names and product names used in this book are trade names, service marks, trademarks or registered trademarks of their respective owners. The publisher is not associated with any product or vendor mentioned in this book. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold on the understanding that the publisher is not engaged in rendering professional services. If professional advice or other expert assistance is required, the services of a competent professional should be sought. Library of Congress Cataloging-in-Publication Data Packard, Ashley. Digital media law / Ashley Packard. – 2nd ed.     p. cm. Includes bibliographical references and index. ISBN 978-1-118-29072-9 (pbk. : alk. paper) 1. Digital media–Law and legislation–United States. 2. Internet–Law and legislation–United States. 3. Telecommunication–Law and legislation–United States. 4. Freedom of expression–United States. 5. Digital media–Law and legislation. I. Title. KF2750.P33 2012 343.7309'9–dc23 2012015389 A catalogue record for this book is available from the British Library. Cover images: background © Ozerina Anna/Shutterstock; tablet © pressureUA/Shutterstock Cover design by Richard Boxall Design Associates based on an original concept by Kalan Lyra Set in 10/13 pt Minion by Toppan Best-set Premedia Limited 1 2013 Brief Contents Detailed Contents List of Sidebars Preface Acknowledgments 1. 2. 3. 4. 5. 6. 7. 8. vi ix x xii Introduction to the Legal System Freedom of Expression Telecommunications Regulation Internet Regulation Conflict of Laws Information Gathering Intellectual Property: Copyright Intellectual Property: Patents, Trademarks, and Trade Secrets 9. Defamation 10. Invasion of Privacy 11. Sex and Violence 12. Commercial Speech and Antitrust Law 1 21 47 75 103 127 161 Appendix: How to Find the Law Glossary Table of Cases Index 367 371 378 387 199 227 257 303 333 Detailed Contents Detailed Contents List of Sidebars Preface Acknowledgments 1. 2. 3. 4. Introduction to the Legal System vi ix x xii 1 The Meaning of Law Sources of Law in the United States The Structure of Court Systems Types of Law Questions for Discussion 1 1 10 14 20 Freedom of Expression 21 The First Amendment The First Amendment’s Purpose Expanding the Meaning of the First Amendment Limitations on Protection No Compelled Speech Questions for Discussion 21 22 30 32 43 45 Telecommunications Regulation 47 A Bird’s Eye View Establishing a Regulatory Framework Broadcast Regulation Media Ownership Rules Multi-Channel Video Program Distributors Phone Companies Questions for Discussion 47 48 51 54 66 73 74 Internet Regulation 75 ICANN, the Internet’s Manager Network Neutrality Voice over Internet Protocol eAccessibility Cybercrime Internet Gambling Virtual Law Questions for Discussion 75 80 87 88 89 96 98 102 Detailed Contents 5. Conflict of Laws Jurisdiction, Choice of Law, and Enforcement of Judgments Private International Law Choice of Forum/Choice of Law Agreements Treaties on Jurisdiction and Choice of Law Alternative Dispute Resolution Questions for Discussion 6. Information Gathering Access to Information State Freedom of Information Laws Access to Public Officials Access to Legislative Information Access to Judicial Information Protection of Information Questions for Discussion 7. 8. Intellectual Property: Copyright 104 112 122 123 124 126 127 127 138 138 139 139 141 160 161 Source and Purpose of Intellectual Property Protection What Can Be Copyrighted? What Cannot Be Copyrighted? Who Qualifies for Copyright Protection? What Are a Copyright Holder’s Exclusive Rights? Registering and Protecting Works What is Copyright Infringement? Digital Millennium Copyright Act Remedies for Copyright Infringement Balancing the Rights of Copyright Owners and Users The Creative Commons Questions for Discussion 161 162 164 168 169 172 175 179 183 184 196 198 Intellectual Property: Patents, Trademarks, and Trade Secrets 199 Patents Trademarks Cybersquatting Trade Secrets Questions for Discussion 9. 103 Defamation What is Defamation? Types of Defamation Who Can Be Defamed? Elements of Libel Defenses to Libel Mitigation of Damages How Has Defamation Changed? The Single Publication Rule Statutes of Limitation 199 204 216 221 225 227 228 229 229 231 236 240 241 244 244 vii viii Detailed Contents Criminal Libel Nontraditional Media and Non-Media Defendants Immunity for Interactive Computer Services Photo Illustrations/Digitally Altering Images Libel in Fiction Satire and Parody Intentional Infliction of Emotional Distress Questions for Discussion 10. Invasion of Privacy Whose Privacy is Protected? Constitutional Protections for Privacy Privacy Protection Under Common Law Defenses to Invasion of Privacy Privacy Protection From Federal Statutes State Privacy Statutes Workplace Privacy Marketplace Privacy Privacy and Social Networking Anonymity Online Government Surveillance Questions for Discussion 11. Sex and Violence Obscenity and Indecency Regulation of Indecency and Material Harmful to Minors Violence Incitement to Violence Threats Hate Speech Questions for Discussion 12. Commercial Speech and Antitrust Law What is Commercial Speech? Advertising and First Amendment Protection Regulation of Unfair and Deceptive Advertising FTC Actions Against False Advertising FTC Advertising Guidelines Advertising and Foreseeable Harm False Advertising and the Lanham Act False Advertising and State Law Advertising “Sin” Products and Services Advertising to Children Marketing Intrusions Public Relations Antitrust Law Questions for Discussion Appendix: How to Find the Law Glossary Table of Cases Index 245 246 250 252 252 253 254 256 257 257 258 259 272 274 283 288 290 293 296 297 301 303 304 311 316 321 324 330 331 333 334 334 337 340 342 344 345 349 350 353 354 357 358 366 367 371 378 387 List of Sidebars Chapter 1 The Difference Between Common and Civil Law Legal Systems The Significance of Judicial Review 9 20 Chapter 2 Are Restrictions on Political Funding a Prior Restraint? First Amendment Theories 27 44 Chapter 3 Broadcast Station Licensing What is the Electromagnetic Spectrum? 54 74 Chapter 4 The First International Treaty on Cybercrime 101 Chapter 5 Jurisdictional Analysis Geolocation Filtering: Code v. Law 106 125 Chapter 7 Myth of the Poor Man’s Copyright The Difference between Copyright Permission and a Model Release 173 197 Chapter 12 Contracts and Electronic Signatures 364 Preface It is time to stop thinking about media law as though it were the exclusive domain of traditional media organizations. Our global shift to digital media has precipitated a shift in information control. Meanwhile the affordability of digital media and their ease of use has democratized media production. With the right equipment, anyone can produce a website, listserv, blog or video with the potential to reach a mass audience. When anyone can become a media producer, everyone should know something about media law – both to protect their own rights and to avoid violating the rights of others. This text focuses on digital media law, which like digital media, is characterized by its general applicability. The information presented here is applicable to professionals in fields such as publishing, public relations, advertising, marketing, e-commerce, graphic art, web design, animation, photography, video and audio production, game design, and instructional technology among others. But it is equally relevant to individuals who use digital media for personal interests – either to express themselves through social networking sites, blogs, and discussion boards or to engage in file trading or digital remixing. As a field, digital media law is also characterized by its global impact. Digital media are borderless. Material uploaded to the Internet enters every country. Material broadcast via satellite reaches across entire continents. What does not travel internationally, however, is the First Amendment. American publishing companies and writers have been sued in courts all over the world for publishing information on the Internet that violated the laws of other countries. Foreign courts will apply their laws to material that is accessible within their borders through the Internet or via satellite if they perceive that material to have caused harm there. Producers of digital media need to understand how jurisdiction is determined and when foreign law can be applied to them. Digital Media Law focuses on issues that are particularly relevant to the production and use of digital media. Its cases and controversies are based on freedom of expression, information access and protection, intellectual property, defamation, privacy, indecency, and commercial speech in the context of new media. This growing area of law also encompasses regulations imposed on the content and operation of telecommunications, such as broadcast, cable and satellite media, cellular communications, and the Internet. The material is framed to appeal to the broad audience of future media producers in communication and digital media disciplines. Current examples bring legal concepts to life. The text is also accompanied by a website (www.DigitalMediaLaw.us) that provides updated information about new court decisions and legislation, links to cases, and supplementary material. A little computer icon ( ) appears in the text near cases and Preface controversies that are still in progress. You can visit the “What’s New” section on the website for new information about them. Chapter 1 provides an introduction to the legal system and a guide to locate primary sources of law. Use it to gain a basic understanding of law before moving on to other topics. Chapter 2 explores the First Amendment. Speech is presumed to be protected in the United States unless proven otherwise. This chapter addresses the extent of that protection and its limitations. Chapter 3 covers telecommunications law, including regulations for broadcast media, cable, direct broadcast satellite, and phone service. It explores the varying levels of First Amendment protection that apply to different media and the Federal Communications Commission’s efforts to adapt its rules to converging technologies. Chapter 4 discusses the Internet’s regulatory structure and explains the difference between domestic and international concepts of net neutrality. It describes legislative efforts to make the Internet more accessible to people with disabilities. It also details statutes in place to combat cybercrime and introduces the concept of virtual law. Chapter 5 provides an introduction to the legal area of procedure called conflict of laws. It explains how jurisdiction, choice of law, and enforcement of foreign judgments applies to transnational conflicts involving digitally disseminated content. Chapter 6 describes federal and state guarantees of access to information and protections for information sources. This area of law, which has always been of particular significance to traditional journalists, is now increasingly important to bloggers and podcasters. Chapters 7 and 8 provide an overview of intellectual property law. Chapter 7 explains copyright law, a field that applies to every digital media producer’s work. Chapter 8 describes patent law, trademark protection, trade secret protection, and cybersquatting legislation. Chapter 9 addresses defamation law, which has always been the bane of traditional media, but is now increasingly applied to “average people” who post damaging accusations on websites, blogs, and listservs. It explains how U.S. libel law differs from that of other countries and the impact that difference has on the treatment of plaintiffs and defendants. Chapter 10 explores protections for privacy, scattered among state and federal statutes, common law, and state constitutions. It addresses rights to privacy in the marketplace, work, home, and electronic communications. Chapter 11 delves into the regulation of sex and violence. In particular, it explores varying protections accorded indecency v. obscenity and how states have tried to apply these theories to control violence in media. Chapter 12 explains differences in First Amendment protection accorded to commercial speech. It describes the efforts of regulatory agencies to control deceptive advertisements, spam, and antitrust violations. A glossary is provided at the back of the book for looking up key terms. After you’ve learned more about the law, you may be interested in doing some of your own research. Look in the appendix for a simplified guide to legal research. It will help you find different sources of law and understand how to read legal citations. xi Acknowledgments Without the dedicated editorial staff at Wiley-Blackwell, particularly Elizabeth Swayze and Julia Kirk, you would not be reading this book. Their experience and generosity guided me through its production. I also owe a debt of gratitude to the kind professors who reviewed the book for Wiley and, through their insightful comments, made the manuscript better. My deepest appreciation goes to my talented illustrator, Kalan Lyra, who took abstract ideas and turned them into something visually meaningful. I also want to thank three wonderful research assistants: Kyle Johnson, Jessica Casarez and Nick Pavlow. I remain indebted to William Fisch and Martha Dragich, my professors of constitutional law and legal research. Finally, my most sincere thanks goes to my husband, Chris, and daughter, Eliza, who supported me even when they realized how much time this book was taking away from them. 1 Introduction to the Legal System It makes no sense to dive into a particular area of law without understanding the basic structure of the legal system and its terminology. This chapter describes the primary sources of law in the United States and how to find them. It explains the structure of the federal and state court systems, the basic differences between civil and criminal law, and the role of judicial review in the United States. It can be used to establish a foundation before proceeding to other chapters and as a reference later when you need to review a particular concept. The Meaning of Law Before discussing how law is made, it might be helpful to define it generally. Law is a system to guide behavior, both to protect the rights of individuals and to ensure public order. Although it may have a moral component, it differs from moral systems because the penalties for its violation are carried out by the state. Digital media law encompasses all statutes, administrative rules, and court decisions that have an impact on digital technology. Because technology is always changing, digital media law is in a state of continuous adaptation. But its basic structure and principles are still grounded in the “brick-and-mortar” legal system. Sources of Law in the United States All students are taught in civics class that there are three branches of government and that each serves a unique function in relation to the law. The legislative branch makes Digital Media Law, Second Edition. Ashley Packard. © 2013 John Wiley & Sons, Inc. Published 2013 by John Wiley & Sons, Inc. 2 Introduction to the Legal System Figure 1.1 The legislative, executive and judicial branches of government make law. Illustration: Kalan Lyra law, the judicial branch interprets law, and the executive branch enforces law. Although this is true, it is also a little misleading because it suggests that each branch is completely compartmentalized. Actually, all three branches make law. The legislative branch produces statutory law. The executive branch issues executive orders and administrative rules. The judicial branch creates law through precedential decisions. In the United States, sources of law include constitutions, statutes, executive orders, administrative agencies, federal departments, and the common law and law of equity developed by the judiciary. The most important source of law, however, is the U.S. Constitution. Introduction to the Legal System 3 Constitutions A political entity’s constitution is the supreme law of the land because it is the foundation for government itself. The constitution specifies the organization, powers, and limits of government, as well as the rights guaranteed to citizens. Because the legislative, judicial, and executive branches of government draw their power from the U.S. Constitution, they cannot act in opposition to it. For this reason, federal courts will overturn statutes and administrative rules that exceed constitutional boundaries. They will also reverse lower courts when their decisions stray too far afield. The only way to get around the Constitution is to alter the document. Ratification of an amendment requires approval from three-fourths of the states. Twenty-seven amendments have been ratified since the Constitution was signed. The first ten are known as the Bill of Rights. In addition to the federal Constitution, there are 50 state constitutions. States are sovereign entities with the power to make their own laws. However, their laws must operate in accord with federal law. The U.S. Constitution includes a supremacy clause that requires state courts to follow federal law when conflicts arise between it and state constitutions or state law.1 The federal constitution also requires that states give “full faith and credit” to other states’ laws and judicial decisions. The U.S. Constitution declares its supremacy in Article XI: “This Constitution . . . shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Constitution Society provides links to the U.S. Constitution and all state constitutions at www.constitution.org/. Statutes When we think about the word “law,” we generally have in mind the statutes passed by our elected representatives as part of city councils, county commissions, state legislatures, and the U.S. Congress. These laws, called ordinances at the city level and statutes at the state and federal level, are meant to serve as guidance to people before they act. Criminal law, in particular, must give people fair warning that an act is illegal before punishing them for violating it, so it is always statutory. Statutes are intended to address potential social needs and problems, so they are written broadly to apply to a variety of circumstances. But their broad language sometimes creates confusion regarding the meaning of particular terms. In such cases, it falls to courts to interpret their meaning. Courts do this by looking at the statutory construction of laws, otherwise known as their legislative history. When laws are passed, they go through a series of committees. Each committee files a report, documenting its actions related to the law. This history of the legislative process usually includes the legislators’ intent regarding the law’s scope and interpretation. Judges may review the reports to find out what was discussed when legislators were hammering out the legislation and how they intended it to be applied. As you read federal statutes, you will notice that many of them apply to activities carried out through “interstate or foreign commerce.” For example, the federal stalking statute applies to anyone who uses “a facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress.” Likewise, federal law 1 U.S. Const. art VI, § 2. Federal statutes are found in the United States Code, available at http://uscode.house.gov/. State codes may be found at http:// www.whpgs.org/f.htm. 4 Introduction to the Legal System prohibits the transmission of obscene materials through interstate and foreign commerce. This phraseology is added to bring activities within the federal government’s jurisdiction. The federal government does not have police power as states do. Police power – the right to legislate to protect the health, safety and welfare of citizens – is reserved for the states. So the federal government regulates activity related to these issues through its exclusive jurisdiction over interstate commerce. Article 1, Section 8 of the U.S. Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States . . . ” Application of the term “commerce” does not mean that money must change hands. When the Constitution was written, commerce was also used in a non-economic context to refer to conduct. Congress applies the term loosely to conduct that crosses state and national borders. Activities carried on within a single state must be regulated under state law. Executive orders Executive orders may be found through the National Archives website at http:// www.archives.gov/federal-register/ executive-orders/. Within the executive branch of government, mayors, governors, and presidents have the power to issue executive orders that are legally binding. Some executive orders are issued to fill in the details of legislation passed by the legislative branch. For example, if Congress passes a bill requiring action on the part of federal agencies without providing sufficient information about how its mandate is to be implemented, the president may issue an executive order specifying procedure. In other cases, executives issue orders of their own accord to promote their policies. By directing federal agencies and officials to enforce their orders, presidents have created national parks, integrated the armed services, desegregated schools, funded and defunded stem cell research, and prohibited financial transactions with countries known for terrorism. Executive orders are also frequently used to regain order in the event of a threat to security. Following a natural disaster like a hurricane, for example, a governor may issue a state of emergency, which would empower him or her to make binding rules for a certain period of time. Executive orders are passed without the legislature’s consent, but the legislature may override them with enough votes. Congress can override a presidential executive order by passing legislation that contradicts it. If the president vetoes the legislation, Congress can override the veto with a two-thirds vote. Executive orders also may be challenged in court if they exceed the president’s constitutional authority. For example, Harry Truman tried to avert a national strike of steel mill workers during the Korean War by issuing an executive order to the Commerce Department to seize control of private steel mills. The Supreme Court held the action unconstitutional.2 Administrative agencies and federal departments Also within the executive branch, independent administrative agencies and federal departments are empowered to make administrative rules that carry the force of law. 2 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Introduction to the Legal System 5 Independent administrative agencies Independent administrative agencies are so named because, although they are part of the executive branch of government, they carry out the mandates of the legislative branch in specific government-regulated industries. Agencies monitor technical areas of law thought to be better handled by specialists than members of Congress. Not only do they have the power to make rules and enforce them with fines and other retaliatory measures, but federal agencies also serve a quasi-judicial function. Their administrative courts are usually the first to hear cases related to violations of agency rules. Congress provided the protocol for agency rule making and enforcement in the Administrative Procedures Act.3 One of the Act’s purposes is to keep agency rule making open to provide opportunities for public participation. To that end, the law requires agencies to publish notices of proposed rule making, opinions, and statements of policy in the Federal Register. Administrative rules are later codified in the Code of Federal Regulations. Another purpose of the Administrative Procedures Act is to keep the process for rule making and adjudication across agencies relatively consistent by prescribing uniform standards and a mechanism for judicial oversight. A federal court may set aside an agency decision if the rule is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”4 It is not the court’s role to substitute its judgment for that of the agency, but to ensure that when an agency creates a new rule or modifies established policy that it articulates “a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ”5 A court may conclude that an agency action is arbitrary and capricious if the agency has: • • • • relied on factors Congress did not intend it to consider; failed to consider an important aspect of the problem; offered an explanation for its decision that contradicts evidence before the agency; or is too implausible to be ascribed to a difference in view or agency expertise.6 Independent agencies most likely to be involved with digital media law are the Federal Communications Commission and Federal Trade Commission. The Federal Communications Commission regulates interstate and international communication emanating from the United States. The Federal Trade Commission enforces fair advertising, consumer protection, and antitrust rules. 3 5 U.S.C. § 551 et seq. (2011). 5 U.S.C. § 706(2)(A) (2011). 5 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 6 Id. 4 The Federal Register is a daily digest of proposed and final administrative regulations issued by federal executive departments and agencies in the United States. It is available online at http:// www.gpo.gov/fdsys/. After their initial publication in the Federal Register, U.S. agency and department rules are codified in the Code of Federal Regulations, available online at http:// www.gpo.gov/fdsys/. 6 Introduction to the Legal System Federal departments Federal departments also make administrative rules, but do not act independently of the executive branch of government. Their leaders are appointed by the president and make up the president’s cabinet. The federal departments most likely to be involved with digital media law are the Departments of Commerce and Justice. The Department of Commerce fosters economic development and technological advancement. Among its many bureaus, the National Telecommunications and Information Administration, or NTIA, acts as the administrative branch’s policy advisor for telecommunication issues. The Department of Justice, led by the Attorney General, supervises federal law enforcement. As such, it is involved in the prosecutions of crimes, such as incitement to violence, fraud, threats, and distribution of obscenity, that may be carried out through digital media. The Justice Department also represents the United States in suits against the government through the Office of the Solicitor General. Cases challenging U.S. law before the Supreme Court frequently include the Attorney General’s name as one of the parties. Common Law and Law of Equity There are a variety of sources for locating caselaw. A useful free resource is FindLaw, at www.findlaw.com/casecode. Additional sources are described in the Legal Research Appendix. The role of courts in all legal systems is to determine whether law is applied appropriately in particular cases. But in common law legal systems – like those of the United Kingdom and its former colonies, such as the United States – courts also have the power to make law. There are two types of judge-made law: common law and law of equity. Common law, also known as caselaw, is a body of legal precedent established through prior court decisions. Judges create common law when no statutory law covers the issue before them. Later judges rely on those precedents for guidance in future legal disputes based on similar circumstances. The use of common law dates back to twelfth-century England. In order to wrest power for legal decision-making from local officials, King Henry II dispatched judges to travel in circuits around the country dispensing justice in the king’s name. Because the king’s judges had no knowledge of events that had taken place prior to their arrival, they assembled juries of local men to aid them in their decision-making. Jurors determined the facts of the case, while the judge determined the applicable law – a practice that is still in use today. These circuit judges adopted the customary rules they considered most appropriate and shared their decisions with each other. Their precedents eventually crystallized into a national common law dispensed by the Courts of the King’s Bench, Common Pleas, and Exchequer – collectively known as the Common Law Courts.7 In a modern context, most common law is created in the areas of tort and contract law. Torts are civil wrongs that result in harm or injury and which act as grounds for lawsuits. Contracts are agreements between two or more parties that are enforceable by law. Within the context of digital media, for example, common law applies to such torts 7 William Searle Holdsworth, A History of English Law 204–31 (Little, Brown & Co. 1922) (1903). Introduction to the Legal System as libel, invasion of privacy, intentional infliction of emotional distress and misappropriation of trade secrets, and to “click to sign” contracts connected with Internet and software use. These types of cases are normally litigated at the state level, where most common law is made. At the federal level, common law has largely been supplanted by statute. However, federal courts still use it to delineate the boundaries of statutory and con­ stitutional law. We see this occur when courts look back to previous decisions to determine the meaning of a particular term or phrase used in a statute in an effort to interpret the law. When one party harms another through a practice prohibited by law, the wounded party can turn to the courts for redress. Under common law, a court can provide damages to compensate for that harm. However, this is not always what is needed to remedy a situation. Sometimes, what a plaintiff needs is for a court to act before the harm occurs, in order to prevent irreparable harm. Common law does not apply before the fact. However, law of equity, which serves as a supplement to common law, provides a mechanism for this. Using law of equity, which also dates back to twelfth-century England, judges can create more flexible remedies for plaintiffs than those available under common law. Take, for example, a situation in which Apple learns that a disgruntled employee has stolen plans for its yet-to-be-released iMind – a device that transmits data directly into the human brain – and is threatening to upload them to the Internet. Once the plans have been published online, Apple will be able to sue the employee for misappropriation of it trade secrets under common law. It may even be able to collect a small portion of its damages. But, by that time, Apple’s competitors will have access to its new product plans, and the potential damages incurred will far outweigh any damages the employee could repay. Equity fills the gap. Using the law of equity, a judge can issue a restraining order or injunction to prevent the thief from acting before the harm occurs. Within the media context, equitable relief most often takes the form of injunctions, which are court orders that require someone to do something or not to do something. But courts grant other forms of equitable relief as well. Parties in doubt of their rights with regard to a particular legal issue may request a declaratory judgment from a court as a precursor to further legal action. This legally binding opinion sets out the rights and obligations of parties within a legal controversy. A party threatened with a lawsuit for engaging in a particular behavior, for example, might seek a declaratory judgment to assess his or her rights before acting. Understanding precedents The practice of following precedents under common law is known as stare decisis (pronounced “stair-ee da-sy-sis”), which literally means “to stand by that which is decided.” The part of the case that sets the precedent is called the holding. This is the court’s decision regarding the legal question presented. In some cases, a court will be very helpful by saying, “We hold that . . . ,” but other times you have to sift though a lot of text to find the golden nugget. 7 8 Introduction to the Legal System Collateral statements made by judges are referred to as obiter dictum or “dicta.” This is all the rest of the text in a judicial opinion. Dicta (which often encompass a lot of analogies, opinions, and explanation) can be interesting, but are not legally binding. Dicta may be used to understand a court’s reasoning and provide an indication of how it might rule in the future. In appellate court cases, a panel of judges – usually three, but sometimes as many as eleven – renders the decision. The opinion may be unanimous, but more commonly it is subdivided into a majority opinion with concurring and dissenting opinions. The majority opinion, so named because it is issued by a majority of the judges on the panel, includes the holding and the legal rationale to support it. To the extent that the opinion answers a new legal question or offers a new legal interpretation, it carries precedential value. Judges who support the majority’s conclusion based on an alternative rationale issue a concurring opinion, explaining the legal rule they would prefer to use. Judges who disagree with the majority’s conclusion issue a dissenting opinion, explaining why they think the majority has misinterpreted the law. Concurring and dissenting opinions are published with the majority opinion, so someone reading the case can acquire a full understanding of the court’s position on an issue. In a small percentage of appellate cases, a majority of judges will reach consensus on a conclusion, without agreeing on a rationale or legal rule to support it. In these cases, the rationale that receives the most support is called the plurality opinion. Decisions in these cases are reached by combining coalitions of judges, citing different legal rules. A plurality decision in the Supreme Court, for example, might draw four justices supporting a conclusion with one rationale, two concurring with the decision, based on a different rationale, and three justices dissenting. In the end, the case will be resolved because six justices agree on a desired outcome, but its precedential value will be limited because no majority supported a legal rule to justify the outcome. Consequently, plurality opinions are narrowly interpreted. Only those aspects of the plurality opinion that draw support from concurring judges are binding. A binding precedent is one that a court must follow. Whether a precedent is binding depends on the court’s hierarchy and jurisdiction. Courts must follow decisions rendered by higher courts in their own jurisdictions. But even if a precedent is not binding, it still might be persuasive. A persuasive precedent is one that a court may use as guidance but also has the prerogative to reject. For example, a Georgia court is not bound by the decisions of other states. However, if the Georgia court is facing a new legal issue, with no precedent to follow from its own state, it will look to other states for guidance. If it finds that a Florida court has issued a well-reasoned opinion on the issue, the Georgia court may elect to adopt it as its own. Modifying, distinguishing, and overruling precedents The concept of stare decisis may lead to the assumption that courts are always bound by earlier precedents. In fact, they are not. The law is a lot like a coral reef. Precedents build upon one another in some areas, while in other areas they remain relatively consistent or may even be torn down. Introduction to the Legal System 9 Courts have the option of modifying, distinguishing, or overruling precedents. Courts modify a precedent when they adapt it to fit a new situation. For example, courts had to modify “print-based” precedents to fit the first copyright cases related to the Internet. Courts distinguish a precedent when they determine that it does not fit the particular case or situation under analysis. For example, when the Supreme Court reviewed the Communications Decency Act, a law intended to control indecency on the Internet, the government tried to persuade the Court that the Act’s restrictions on Internet speech were analogous to restrictions imposed on “dial-a-porn” that had already been upheld. The Court distinguished the dial-a-porn precedent from the Internet case because they dealt with different media. Courts overrule precedents when they decide that the precedents are no longer good law. For example, the Supreme Court decided in 1915 that films were public spectacles unworthy of First Amendment protection.8 The Court reversed its opinion in 1952, deciding that films, like other media, are a form of protected expression.9 The Difference Between Common and Civil Law Legal Systems Common law legal systems are unique to the United Kingdom and her former colonies. Civil law systems are actually more common. Civil law is used in most of Europe, all of Central and South America, parts of Asia and Africa, and in some states within common law countries, such as Louisiana in the United States and Quebec in Canada.10 Judges do not make law in civil law systems. They rely exclusively on statutory law, usually set down in codes that are cohesively structured. Civil law is based on deductive logic. There is one rule of law and decisions for cases are drawn from the rule. In contrast, common law relies on inductive logic. The rule is based on a general conclusion from a number of cases. Not only is civil law the dominant legal system, it is also the oldest. Its heritage can be traced back to the early Roman Empire. In the sixth century, the Emperor Justinian amassed all law into a unified code called the Corpus Juris Civilis. More com- 8 monly known as the Justinian code, it included a dictate that rejected precedent. It stated that “decisions should be rendered in accordance, not with examples, but with the law.”11 This policy can be traced back to Roman tradition, in which judges were appointed on a case-by-case basis and magistrates were appointed for no more than one year. As such, their individual decisions were not accorded much weight.12 As an alternative to stare decisis, civil law judges follow the doctrine of jurisprudence constante. The doctrine of jurisprudence constante does not require judges to follow earlier precedents; nevertheless, judicial deference to earlier decisions is commonplace. “Under civil law tradition, while a single decision is not binding on courts, when a series of decisions form a ‘constant stream of uniform and homogenous rulings having the same reasoning,’ jurisprudence constante applies and operates with ‘considerable persuasive authority.’ ”13 Mutual Film Corp. v. Industrial Comm’n of Ohio, 236 U.S. 230 (1915). Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). 10 James G. Apple and Robert P. Deyling, A Primer on the Civil Law System 1 (Federal Judicial Center, 1995), available at www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf. 11 Id. (citing John P. Dawson, Oracles of the Law 103, 123 (1968)). 12 Id. at 5. 13 Doerr v. Mobile Oil Co., 774 So.2d 119 (La. 2000) (citing Dennis, J. L., Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 15 (1993)). 9 10 Introduction to the Legal System The Structure of Court Systems A court’s jurisdiction and hierarchy determines whether the decision it renders will be a binding precedent. So a basic knowledge of the structure of court systems, along with their powers and limitations, is essential before reading particular cases. In the United States there are two court systems: the federal system and the state system. In order for a court to consider a case, three conditions must apply: • • • there must be a legitimate controversy that is ripe for review; the parties in the case must have standing, which is a direct interest in the case; and the case must fall within the court’s jurisdiction or sphere of influence. There are two types of jurisdiction, personal jurisdiction and subject matter jurisdiction. Personal jurisdiction, which is covered in greater detail in Chapter 5, refers to the court’s right to exercise its control over the parties involved in a case, based on their residence in or contacts with a particular area. Subject matter jurisdiction refers to the particular issues that a court is empowered to decide. The federal court system The subject matter jurisdiction of federal courts is limited to actions described in Article III, Section II of the Constitution and federal statutes passed by Congress. Federal courts may consider: • • • • • • • • • controversies arising under the Constitution, laws of the United States, and treaties; cases in which the United States is a party; cases between a state or its citizens and foreign states or their citizens; cases involving ambassadors and representatives from foreign states as parties; cases based on admiralty law (the law of the seas); copyright and patent cases; bankruptcy proceedings; lawsuits involving the military; and diversity cases, involving claims exceeding $75,000. Diversity cases involve civil actions between citizens of different states.14 For example, in 2011, actress Lindsay Lohan sued rapper Pitbull for defamation, intentional infliction 14 28 U.S.C. § 1332 (2010). Introduction to the Legal System of emotional distress and the use of her name for commercial benefit, in a New York State court, for including the lyric “I got it locked up like Lindsay Lohan” in his popular song “Give Me Everything.” The case was transferred to a federal court with diversity jurisdiction because Lohan was a resident of California, Pitbull was a resident of Florida, and the other defendants in the suit were residents of Georgia, New York, and the Netherlands.15 A federal court also may assume jurisdiction over a case that began in a state court if a constitutional or federal right is threatened during the course of litigation. For example, a federal court may prevent a state court from enforcing an unconstitutional state statute. The federal court system includes the U.S. Supreme Court, U.S. Courts of Appeals, U.S. District Courts and bankruptcy courts. Congress has also created legislative courts with reduced powers. These include the U.S. Court of Military Appeals, U.S. Tax Court and U.S. Court of Veterans Appeals. Federal court hierarchy The point of entry for a case in the federal system is the district court. This is the trial level (that comes closest to television depictions of trials), where one judge sits on the bench, witnesses take the stand, and a jury examines the evidence to determine the facts of the case. The federal system is divided into 94 judicial districts, each staffed with multiple judges. Each state, along with the District of Columbia and U.S. territories, includes at least one district. Larger states, like California and Texas, include as many as four districts located in different parts of the state. Above the trial level is the appellate level. Courts of appeals review lower court Figure 1.2 decisions to make sure the law was applied correctly. A panel of judges – usually three – examines the case to make sure judicial rules were followed, that proper witnesses were allowed, and that juries received correct instructions. A court of appeals normally does not re-examine the facts of a case. If, in the course of its review, an appellate court finds that a fact is still in dispute that could materially affect the outcome of the trial, it will send the case back (called remanding it) for a retrial to resolve the issue. Because there are no witnesses at the appellate level – only transcripts, lawyers, and judges – courtroom drama is considerably diminished. Federal courts of appeals are divided into autonomous circuits. A decision from an appellate court is binding within its own circuit, but it does not bind courts in other circuits. There are 13 federal circuits within the United States. Eleven of them are drawn from clusters of states and U.S. territories. 15 Lohan v. Perez, a/k/a Pitbull (filed Nov. 4, 2011, E.D.N.Y.) Notice of removal. Supreme Court Court of Appeals District Court 11 12 Introduction to the Legal System First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit The Supreme Court issues a writ of certiorari when it accepts a case. The order requires a lower court to deliver its records of the case to the higher court for review. In Latin certiorari means “to be more fully informed.” If you aren’t sure how to pronounce it, you are in good company. Justices on the Supreme Court all pronounce it differently, as “ser-shah-rair-eye,” “ser-she-orary,” and “ser-shah-rahr-ee.” Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island Connecticut, New York, Vermont Delaware, New Jersey, Pennsylvania, Virgin Islands Maryland, North Carolina, South Carolina, Virginia, West Virginia Louisiana, Mississippi, Texas Kentucky, Michigan, Ohio, Tennessee Illinois, Indiana, Wisconsin Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, N. Mariana Islands, Oregon, Washington Colorado, Kansas, New Mexico, Utah, Oklahoma, Wyoming Alabama, Florida, Georgia The other two U.S. Courts of Appeals are located in Washington, D.C. The U.S. Court of Appeals for the District of Columbia Circuit hears appeals from administrative agencies in the nation’s capital. The U.S. Court of Appeals for the Federal Circuit has nationwide jurisdiction for specialized cases. These include cases on patent law or cases that come from the Court of International Trade and the Court of Federal Claims. In exceptional cases, the judges sitting on a circuit court of appeals may, at the request of one of the litigants or a circuit judge, vote to vacate a three-judge panel’s decision and review the case en banc. In an en banc hearing, the full court sits to rehear and decide the case. Such reviews are rarely granted unless the panel’s judgment was out of sync with the court’s earlier decisions or the case involves a legal question of particular importance. Decisions rendered by federal circuit courts may be appealed to the U.S. Supreme Court, which binds every lower court on constitutional and federal law. When the Supreme Court agrees to hear a case, it grants a writ of certiorari. The Court grants certiorari only to those cases that pose a significant legal issue. Of the approximately 10,000 petitions it receives each year, the Court reviews only 75–100 cases.16 The Supreme Court has original jurisdiction (the right to be the first to hear a case) in two types of cases: those involving ambassadors and those in which the United States is a party. In all other cases, it has appellate jurisdiction. As with courts of appeals, cases involve written briefs and oral arguments presented by attorneys, but no witnesses or juries. Court justices issue written opinions, explaining their decisions, months after hearing the case. The Supreme Court has nine members – eight justices and a chief justice. They are, in order of seniority, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, and 16 Supreme Court of the United States, Frequently Asked Questions, http://www.supremecourt.gov/faq.aspx. Introduction to the Legal System Elena Kagan. John Roberts is chief justice. Occasionally, one of the justices will have a conflict of interest that makes it inappropriate to hear the case. For example, he or she may have a prior relationship with one of the parties. In such a case, the justice will voluntarily remove him or herself from the case, a process known as recusal. This would leave eight justices to decide the case. In the event of a tie, the lower court’s decision would stand but would carry no precedential value beyond its own circuit. The state court system Although federal courts have produced more influential opinions regarding digital media law, most litigation takes place in state courts. In fact, 95 percent of all cases are filed there.17 As sovereign entities, states courts are independent of the federal court system and independent of other states. They are the ultimate decision makers regarding their own laws and constitutions, even binding federal courts on interpretations of state law. Like their federal counterparts, state courts are limited by personal and subject matter jurisdiction. There must be a connection between the litigants and the state to establish personal jurisdiction. A Florida court could not, for example, hear a case involving two residents of Mississippi about a matter that had nothing to do with Florida. State courts are also limited to particular subject areas. These include matters that involve state statutes, state constitutions or state common law. State courts handle most criminal cases, probate (wills and estates), contracts, torts (personal injuries), family law (marriages, divorce and adoptions) and juvenile justice. Most states have two levels of trial courts: courts of limited jurisdiction or courts of general jurisdiction. Courts of limited jurisdiction handle cases involving misdemeanor behavior in criminal matters and sums under $10,000 in civil matters. Examples include municipal, justice of the peace, probate, family, juvenile and small claims courts.18 More serious criminal and civil cases are tried in courts of general jurisdiction. These are commonly called district, circuit, or superior courts. State court hierarchy The decisions of these lower state courts may be appealed to intermediate appellate courts, usually called courts of appeals. Most states have one appellate court, but larger states like California have regional appellate courts. Because it is assumed that all cases deserve at least one appeal, intermediate appellate courts have little discretion over whether to accept cases from the trial level. Each state also has a court of last resort, usually called its supreme court. However, in New York and Maryland, the highest courts are called court of appeals. These courts, 17 18 National Center for State Courts, Examining the Work of State Courts, 2010, http://www.courtstatistics.org/. Robert A. Carp and Ronald Stidham, Judicial Process in America 67 (4th ed. 1998). 13 14 Introduction to the Legal System which range in size from three to nine judges (but most commonly have seven), are the final arbiters on state law. Most courts of last resort sit in states with intermediate appellate courts and therefore have the power to exercise discretion over the cases they choose to hear.19 Like the U.S. Supreme Court, they generally elect to review only those cases that involve important policy issues. Types of Law Within the common law system, there are two different types of law: criminal law and civil law. The term civil law can be confusing because it has two meanings. As discussed earlier, civil law refers to a type of legal system that is distinct from the common law system. Within the United States, the term civil law more commonly refers to the body of law used to resolve disputes between private parties or organizations. In other areas of the world it is called private law, while its counterpart, criminal law, is called public law. Criminal law, prosecuted by the government, is probably more familiar to you because it is more commonly depicted in books, movies, and television. Unfortunately, these dramatic representations tend to gloss over the specifics. Criminal law Criminal law addresses violations against the state (government) that, even if directed toward an individual, are considered an offense to society as a whole. It may include the commission of an illegal act (like computer fraud or cyberstalking) or the omission of a duty (through negligent conduct, for example) that causes public harm. A state may sanction the violation of a criminal law using fines or imprisonment, as long as the punishment, like the crime, was clearly outlined in a statute passed by a legislative body before the act occurred. Grand juries and preliminary hearings Grand juries are distinct from trial juries. Grand juries determine whether there is enough evidence to charge a person with a crime. Trial juries determine whether a person has committed a crime. The Fifth Amendment guarantees a grand jury hearing to anyone accused of a federal crime. Most grand juries consist of 16 to 23 citizens pulled from voter registration lists, who are empanelled for a period ranging from one month to one year. The federal prosecutor submits his or her evidence to the grand jurors, who determine whether there is probable cause to believe the accused committed a federal crime. The accused is not present at the time. If, after hearing the evidence, the grand jury is convinced there is probable cause to warrant a trial, it will issue a formal accusation of a felony, 19 Id. at 71. Introduction to the Legal System called an indictment, against the accused. Grand jury hearings and records are closed to the public. The Supreme Court has provided three justifications for this secrecy: (1) disclosure of pre-indictment proceedings would make many prospective witnesses “hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony”; (2) witnesses who did appear “would be less likely to testify fully and frankly as they would be open to retribution as well as inducements”; and (3) there “would be the risk that those about to be indicted would flee or would try to influence individual grand jurors to vote against indictment.”20 States have the option of using preliminary hearings led by a judge as an alternative to a grand jury hearing. The accused may be present at a preliminary hearing and may even present evidence in his or her favor, although most elect not to at that time. Preliminary hearings are also open to the public. Arraignments Once a grand jury or judge has determined there is probable cause for a trial, the accused goes before a judge, where he or she is read the formal charge and issues a plea in a proceeding called an arraignment. It is important to understand the distinction between an arrest and an arraignment to avoid publishing inaccurate information that could lead to a defamation suit. Only after an arraignment is it correct to publish that someone was “charged” with a crime. If the defendant’s plea is “guilty,” the judge may issue a sentence. If the plea is “not guilty,” a trial date is set. Typically fewer than 10 percent of criminal cases make it to trial. Most are plea-bargained before trial, meaning the prosecutor and defendant agree to a deal that usually involves some form of leniency in exchange for a guilty plea. The Sixth Amendment to the Constitution guarantees “a speedy and public trial” by an impartial jury in all criminal prosecutions. In the Speedy Trial Act of 1974, Congress interpreted the term “speedy” to mean that a trial must ensue within 100 days after criminal charges are filed or the case must be dismissed. States have enacted similar measures. The jury Potential trial jurors are subjected to a process called voir dire (pronounced “vwahr deer”) to assess their suitability for jury service. During this period, the prosecution and defense ask potential jurors questions regarding their knowledge and attitudes about the case, as well as any relevant personal experiences or connections that might influence their decision. A common misperception is that potential jurors must not have heard anything about the case to be selected. That is not a requirement. It is only 20 In re North (Omnibus Order), 16 F.3d 1234, 1242 (D.C. Cir. Spec. Div., 1994) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218–19 (1979)). 15 16 Introduction to the Legal System necessary that potential jurors believe themselves to be capable of impartiality. During the selection process, each side is given a number of peremptory challenges, which are opportunities to strike a person from the jury pool for no specific reason. These are useful when a potential juror displays no overt biases, but the attorney still has a bad feeling about the person. Peremptory challenges may not, however, be used to strike a juror on the basis of race or gender.21 Strikes for cause are unlimited. Attorneys do not have to use one of their peremptory strikes to exclude a juror who displays an obvious bias regarding the case. In a federal criminal trial, a jury must have twelve members who reach a unanimous decision. Most states also use twelve-member juries in criminal trials, but are permitted to use as few as six. A slight variation in votes is also permitted at the state level. The Supreme Court has held that a guilty verdict from nine members of a twelve-member jury is constitutionally permissible in state trials. However, a jury with only six members must be unanimous. Oregon and Louisiana are the only states that still permit nonunanimous juries in felony cases. It is the jury’s job to decide the facts of the case and render a verdict. It is the judge’s job to make sure proper procedure is followed during the trial and to instruct the jurors about the meaning of the law and how it is to be applied. In most states, and at the federal level, the judge imposes the sentence.22 However, some states place this responsibility on the jury. Grounds for appeal Approximately one-third of criminal verdicts are appealed. The appeal must be based on the contention that the law was misapplied, not that the facts were misinterpreted. Acceptable reasons might be that inadmissible evidence was allowed, jury selection was flawed, or the judge’s instructions were incorrect. A successful appeal usually results in a new trial. Civil law Civil law seeks to resolve non-criminal disputes. These typically involve conflicts over contracts, the ownership or use of property, inheritance, domestic relations (involving marriage, divorce, child custody), and torts. These conflicts, between private people or organizations, emerge when one party alleges that the other has violated a civil statute or common law. Civil cases are more common than criminal cases.23 In civil trials, the court’s role is to help settle the dispute. The proscribed remedy may be an injunction that requires someone to do something or prohibits someone from doing something, or the imposi21 See Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991) and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). 22 Daniel E. Hall, Criminal Law and Procedure 490 (5th ed. 2009). 23 Id. at 184. Introduction to the Legal System tion of a fine. Civil penalties do not involve imprisonment. On rare occasions, a state may be a party to a civil suit, but this is the exception rather than the rule. Civil procedure Civil procedure differs from criminal procedure in a number of respects. First, there is no prosecutor in civil cases. One party (the plaintiff) brings a suit against another party (the defendant or respondent). The plaintiff must have standing – a personal stake in the outcome of the case – in order to initiate the suit. Without standing, there is no real controversy between the parties for a court to settle. Second, the standard of proof required to win a civil case is less stringent than in criminal cases. It is usually sufficient for a plaintiff to show that the “preponderance of evidence” demonstrates the defendant’s guilt. Plaintiffs are not required to demonstrate guilt beyond a reasonable doubt, the standard used in criminal trials. Third, due process protections are weaker in civil trials. The court is not required to provide an attorney for a defendant who cannot afford one, for example. Also, although the Seventh Amendment guarantees the right to a jury in a civil trial, the litigants have the right to waive that option in favor of a bench trial, in which the judge determines the facts of the case in addition to deciding questions of law.24 When juries are used, they are frequently smaller than those used in criminal trials. Fewer than half the states require twelve-person juries, and about half permit nonunanimous verdicts. To initiate a suit, the plaintiff or the plaintiff ’s attorney files a petition, called a complaint, outlining the circumstances that led to the dispute, the damages alleged and the compensation expected. After receiving a summons announcing the suit, the defendant or defendant’s attorney may file a motion with the court to strike parts of the suit that are improper or irrelevant or to dismiss it entirely because it was improperly filed or because there is no sound basis for the suit.25 If the court rejects the defendant’s motions, the defendant will have to respond to the suit. The response, called the defendant’s answer, may contain an admission, denial, defense, or counterclaim.26 At that point, the trial will enter a discovery phase in which the litigants gather and share information related to the dispute. Although surprises make good drama in television courtrooms, they are not appreciated in real trials. Opposing parties are obligated to disclose their evidence to each other before the trial. Pre-trial discovery, which is used in civil and criminal trials, gives each side the opportunity to search for new information to explain or rebut the opposing party’s evidence, and minimizes opportunities to falsify evidence.27 In civil trials, putting all of the evidence out on the table also encourages settlements before the case can go to trial. Litigants use a variety of tools for discovery. 24 The Seventh Amendment is not deemed sufficiently fundamental to apply at the state level through the Fourteenth Amendment’s due process clause. Thus defendants do not have a constitutional right to a jury in a state civil trial. See Curtis v. Loether, 415 U.S. 189, 198 (1974) and Dairy Queen v. Wood, 369 U.S. 469, 471–2 (1962). 25 Curtis v. Loether, 415 U.S. 189, 196 (1974). 26 Id. 27 Comment, Pre-Trial Disclosure in Criminal Cases, 60 Yale L.J. 626–46 (1951). 17 18 Introduction to the Legal System One of the most common is the deposition. In a deposition, potential witnesses describe what they know, under oath, before the trial begins. Depositions normally occur in one of the attorney’s offices. All parties are notified in advance so they can be present to hear the witness’s testimony. The counsel for both the plaintiff and the defendant may question the witness during a deposition. Information is also gathered through interrogatives, which are questionnaires that the opposing party answers under oath. Each party is also entitled to request the opposition’s list of witnesses to be called at trial, a summary of anticipated expert testimony, and any documents that may be used in the case as evidence. Summary judgment Either party in the trial may motion for a summary judgment in his or her favor. A summary judgment is a ruling that all factual issues have been discovered and the case can be decided on the facts without a trial. If, after considering the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, the judge determines that there is no genuine issue of material fact and that as a matter of law the motioning party is entitled to a judgment, the judge may render a summary judgment in the case.28 If the court refuses to issue a summary judgment, the case will go to trial. If the district court issues a summary judgment and the opposing party believes material facts remain that justify a full trial, he or she may appeal the summary judgment. An appellate court may choose to review de novo (anew) the evidence leading to the district court’s summary judgment. If it does so, it will review the evidence in the light most favorable to the party who did not request summary judgment. Remedies Civil remedies usually come in the form of injunctions and/or fines, depending on the circumstances. If a case involves an issue of equity (a problem that cannot be remedied after-the-fact by issuing damages), a judge may issue a preliminary injunction to prevent one party from doing something that harms the other party until the case can be considered fully at trial. Before granting a plaintiff a preliminary injunction, the court must be satisfied that (1) there is a substantial likelihood that the plaintiff would win a case against the defendant if it were to go to trial; (2) that the plaintiff would suffer “irreparable harm” without the injunction; (3) that the harm the plaintiff suffers would be worse than any harm the defendant would suffer from the injunction; and (4) that the injunction would not harm the public’s interest.29 If a trial later shows that the preliminary injunction was warranted, the court will replace it with a permanent injunction. If not, the preliminary injunction will be lifted. 28 29 Fed. R. Civ. P. 56. See Johnson & Johnson Vision Care v. 1–800 Contacts, Inc., 299 F.3d 1242, 1246–47 (11th Cir. 2002). Introduction to the Legal System If, on the other hand, the damage is already done and the judge or jury finds that the defendant is responsible, the defendant may be punished with a monetary fine. Civil juries issue two types of damage awards: compensatory and punitive. Compensatory damages compensate the victim for actual loss. Punitive damages, which may be awarded in addition to compensatory damages, serve as punishment and to set an example for future offenders. Doctrine of respondeat superior The civil liability doctrine of respondeat superior allows plaintiffs to sue not only the person directly responsible for a tort, but also those who may be tangentially responsible. Literally it comes from the ancient idea that the master is responsible for the servant. In modern times, it means the employer is responsible for the employee. People take advantage of the doctrine of respondeat superior when they are looking for deeper pockets. This means that if you harm someone in the context of your work, your company may also be liable for your actions. If you own a company, it means that you may be liable for your employees’ actions and should have a good errors and omissions insurance policy. Appeals If the losing party feels that the court’s judgment was reached in error because the law was somehow misapplied, he or she can ask the court to set aside its verdict. If the court refuses to do so, the losing party may appeal the decision. A losing party who is legally entitled to a review will become the appellant, while the opposing party becomes the appellee. If the higher court’s review is discretionary – which is the case in appellate courts of last resort, usually called supreme courts – the losing party must petition the court for a writ of certiorari, a court order granting a review. The party requesting the review will be the petitioner. The opposing party will be the respondent. Case names are likely to change on appeal. A lawsuit brought by Jones against Smith will begin life as Jones v. Smith. If Smith loses and initiates an appeal, the case name will switch to Smith v. Jones. District Court Court of Appeals Supreme Court Petitioner v. Respondant Appellant v. Appellee Plaintiff v. Defendant Figure 1.3 The terms used for parties in a case change as they move from one court level up to the next. 19 20 Introduction to the Legal System The Significance of Judicial Review The power of judicial review refers to a court’s authority to review the decisions of other branches of government. In the United States, judicial review gives federal courts the power to declare a law unconstitutional – in effect, to strike it down. Theoretically, any federal court in the United States has this power, but lower courts are reluctant to use it because it is guaranteed to lead to an appeal and embarrassment if the decision is overturned. Although the framers of the Constitution never specifically granted the Supreme Court the power of judicial review, the Court nevertheless decided it must have that authority in Marbury v. Madison (1803).30 The case involved a judicial appointment that President Adams made before leaving office following his loss to Thomas Jefferson. The Senate confirmed several of Adams’ judicial appointees, but Adams’ secretary of state did not have time to issue their commissions before leaving office. When Jefferson assumed the presidency, he asked his new secretary of state, James Madison, not to issue the commissions because he wanted to appoint his own judges to the bench. William Marbury, who was in line for a federal judgeship, asked the Supreme Court to issue a writ of mandamus, a court order compelling a public official to do his duty, to force Madison to turn over the commission. Congress gave the Supreme Court the power to issue writs of mandamus in the Judiciary Act of 1789. But the Constitution does not give the Supreme Court original jurisdiction in such matters. Facing an untenable position, the Court concluded that the law must be unconstitutional and therefore invalid. In terms of constitutional law, the decision is the most important the Supreme Court has ever made. Shortly after, in Martin v. Hunter’s Lessee (1816), the Court also held that it had the power to determine whether the decision of a state’s legislature is constitutional.31 The Supreme Court’s assertion of judicial review was controversial because it vested the one branch of government that is not democratically elected with the greatest power. However, the Court has used that power to protect minority rights that might otherwise have been trampled by the majority. Judicial review is particularly important to media law. Without it, courts would not have the power to strike down laws that impinge upon the First Amendment. Having that power over states also means that the Court can prevent 50 inconsistent laws. Questions for Discussion 1. What are the different sources of law in the United States? Which is paramount and why? 2. How do hierarchy and jurisdiction determine whether a precedent is binding or persuasive? 3. How do common law and civil law legal systems differ? 4. How do criminal and civil law differ? 5. What is the significance of judicial review and how does it make the U.S. legal system different from other common law legal systems? 30 31 5 U.S. 137 (1803). 14 U.S. 304 (1816). 2 Freedom of Expression No other country in the world is more protective of expression than the United States. In fact, some countries believe the United States takes speech protection too far, protecting expression at the expense of other equally important rights, such as personal rights to reputation and privacy. It should not be surprising that nations balance speech protections differently. Each nation forms concepts of what is acceptable in terms of expression based on its own cultural and political heritage. Countries such as France and Germany, for example, developed a particular sensitivity to the dangers of hate speech following their experiences with Nazism during the 1930s and 1940s. European countries in general are more sensitive to defamation. Their social structures grew out of feudalism during the Middle Ages and subsequent class divisions that extended through the nineteenth century. Historically, an accusation that marred the reputation of a member of the aristocracy was likely to result in a duel. Strict laws against defamation reduced violence. In contrast, American colonists represented a range of social strata, looking for religious, economic, and expressive freedom. The founding fathers incorporated these values into the U.S. Constitution. This chapter will explore the First Amendment, the primary means through which expression is protected in the United States. It will consider the varying levels of protection accorded to different media; categories of speech without protection; and the legitimate scope of time, place, and manner restrictions. It will also address questions specifically related to Internet speech, such as whether the Internet is a public forum, computer code is considered speech, and student websites are protected. The First Amendment Protection for free expression in the United States draws its power from the First Amendment to the Constitution, which says: Digital Media Law, Second Edition. Ashley Packard. © 2013 John Wiley & Sons, Inc. Published 2013 by John Wiley & Sons, Inc. 22 Freedom of Expression 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. In those 45 words, the founding fathers integrated a number of rights: the right to freely exercise one’s religious beliefs, protection against state establishment of religion, protection for freedom of speech and the press, the right to assemble freely and with it an implied freedom of association, and the right to petition for a redress of grievances. The First Amendment’s protection for speech and press is foundational to U.S. media law. It distinguishes our national approach to such issues as defamation, hate speech, and obscenity from those of other commonwealth and civil law countries. Other nations have included protections for expression in their constitutions, but no guarantee of speech and press freedom is as broadly stated as the First Amendment. Ironically, the First Amendment’s breadth is sometimes a source of confusion. The Supreme Court and Congress have struggled with its admonition “to make no law abridging freedom of speech.”1 On first reading the language seems clear enough, but it is actually quite open to interpretation. Judges and scholars have debated its meaning for two centuries. What exactly does freedom of speech mean? What does abridgement mean? How far can Congress go before it abridges freedom of speech? Advances in technology have also put the words “or of the press” in question. When the founding fathers wrote the First Amendment, the meaning of press was clear: books and newspapers. In the twentieth century, the meaning of press expanded to include radio, film, and television. In the twenty-first century, it encompasses websites, web logs, podcasts, videos, and even social networking sites. What will be next? There is also the question of how closely the text should be followed. First Amendment absolutists, like Justices Hugo Black and William Douglas, interpreted the admonition to make “no law” respecting speech or the press to mean no law whatsoever.2 Others have felt that the right of expression must be balanced against other rights and societal interests. The First Amendment’s Purpose No matter how literally the First Amendment is interpreted, one thing is clear: it does not protect all expression. A common misconception is that the First Amendment protects anything we have to say, anywhere we want to say it. Actually, the First Amendment only protects against government suppression of expression. It does not prohibit private suppression of expression. If, in a fit of anger, you were to post a video on YouTube 1 Judicial Review and the Supreme Court 141 (Leonard W. Levy ed., 1967). Konigsberg v. State Bar of California, 366 U.S. 36, 61 (1961) (Black, J., dissenting) (“[T]he First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.”) 2 Freedom of Expression mocking your boss and later find yourself out of a job, you could not turn to the First Amendment for recourse.3 Nor could you count on it to protect your expression on someone else’s private property. This includes private onramps to the Internet like web hosts and social networking sites. If your posts venture into offensive territory, your web host is entitled to ask you to remove the speech. If you refuse to do so, the company may do it for you or close your account. The situation gets trickier when government agencies retaliate against their employees for speech posted online. As government entities, public agencies must guard against suppression of speech. As employers, they also have “a legitimate interest in promoting the efficiency of their operations.”4 A public employee’s speech, made in his or her capacity as an employee, is generally not protected if the speech is made “to further the employee’s private interest.”5 However, speech made “as a citizen upon matters of public concern” is protected. When that speech causes a disruption at work, a court is required to balance the employee’s right of free speech against the interest of the public employer. The First Amendment protects speech from government suppression at the federal, state, and city level. This was not always thought to be the case. Because the First Amendment states “Congress shall make no law,” the Supreme Court initially interpreted the First Amendment to apply only to the federal government.6 Circumstances changed, however, when the Fourteenth Amendment was ratified in 1866. The Fourteenth Amendment says: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In 1925, the Supreme Court modified its position.7 The Court determined that the Fourteenth Amendment’s concept of liberty incorporates freedom of expression and that through the Fourteenth Amendment the First Amendment applies to the states. The Fourteenth Amendment binds the states to other guarantees in the Bill of Rights as well, under the theory that it incorporates the “fundamental principles of liberty and justice, which lie at the base of all our civil and political institutions.”8 This notion has 3 However, the National Labor Relations Act does protect the rights of certain employees to engage in “protected concerted activity.” The National Labor Relations Board describes this as when “two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” In September 2011, an NLRB administrative judge found that a New York company had violated the Act by firing five employees who had been discussing job conditions on Facebook. See Administrative Law Judge Finds New York Nonprofit Unlawfully Discharged Employees Following Facebook Posts, National Labor Relations Board, Sept. 6, 2011, https://www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfullydischarged-employees-following-fac. 4 Mattingly v. Milligan, No. 4:11CV00215 (E.D. Ark Nov. 1, 2011). 5 Sparr v. Ward, 306 F.3d 589, 594 (8th Cir. 2002). 6 Barron v. The Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1933). 7 Gitlow v. New York, 268 U.S. 652 (1925). 8 Gideon v. Wainwright, 372 U.S. 335 (1963). 23 24 Freedom of Expression come to be known as the incorporation doctrine. In the landmark case Gideon v. Wainwright (1963), Justice Black outlined the amendment’s scope: This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this “fundamental nature” and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment’s command that private property shall not be taken for public use without just compensation, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth’s ban on cruel and unusual punishment.9 Through the Fourteenth Amendment, the First Amendment also applies in U.S. territories, such as Puerto Rico and Guam,10 and to aliens legally residing in the United States.11 The Supreme Court has not incorporated the full Bill of Rights into the Fourteenth Amendment. Rights that the justices do not consider to be “fundamental” remain outside the amendment’s reach. These include the Third Amendment’s prohibition against quartering soldiers in private residences during peacetime, the Fifth Amendment’s requirement of grand jury indictments, and the Seventh Amendment’s right to a jury in civil trials. Prohibition on prior restraint Prior restraint is censorship before publication. Constitutional historians have noted that the founding fathers’ understanding of press freedom when the Bill of Rights was written probably mirrored the English definition presented in the authoritative legal text used at the time, William Blackstone’s Commentaries on the Laws of England.12 Blackstone interpreted freedom of the press to mean freedom from prior restraint. In other words, he understood it to mean the freedom to publish without prior censorship, but not freedom from punishment after the fact. There is support for the contention that the founding fathers also understood freedom of the press as a limit on prior restraint. The First Amendment was ratified in 1791. Only seven years afterward, many of the same men who voted for it passed The Sedition Act of 1798. The Sedition Act made it a crime to “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United 9 Id. at 341–42. See Balzac v. Porto Rico, 258 U.S. 298, 313–14 (1922) and DeRoburt v. Gannett Co., 83 F.R.D. 574, 577–8 (D. Haw. 1979). 11 See Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (holding that aliens who lawfully enter and are residing in the United States are entitled to rights guaranteed by the Constitution, including rights protected by the First Amendment) and Bridges v. Wixon, 326 U.S. 135 (1945) (holding that aliens residing in the United States are accorded freedom of speech and press). 12 William Blackstone, Commentaries on the Laws of England (1769). 10 Freedom of Expression States, or either house of the Congress of the United States, or the President of the United States.”13 In the context of political discourse today, can you imagine it being illegal to criticize Congress or the president? Although the meaning of the First Amendment was narrowly understood when it was first written, historian Leonard Levy observes that “it was boldly stated, and that the bold statement, the principle of unqualified free speech, was written into fundamental law and was meant to endure.”14 A broad libertarian theory of expression did emerge within a decade after the constitution’s ratification – a contention supported by the fact that the Sedition Act was allowed to expire in 1801.15 However, it was not until the twentieth century that the power of the First Amendment began to take hold. In the years leading up to and immediately after World War I, the Supreme Court struggled with the question of just how far people should be allowed to go in their criticism of government, particularly in times of unrest. Political activists were thrown in jail for what we might consider today to be mild attempts to protest the war.16 Part of this response was due to a natural propensity to tighten restrictions on freedoms when danger is present, a cycle that has played out through our legal history. But it is also helpful to understand that in the early part of the twentieth century, the prevailing view among social scientists (and no doubt many judges) was that the public was extremely vulnerable to political propaganda.17 A prohibition era case, divorced from the context of war, gave the Supreme Court an opportunity to consider the issue of government criticism in a different light. The Court confirmed that “The chief purpose of the guarantee of freedom of the press is to prevent previous restraint on publication” in the landmark case Near v. Minnesota (1931).18 Jay Near, the petitioner in the case, was the editor of a scandal sheet called The Saturday Press, which vilified Jews and Catholics, among others. Shortly after the first edition was published, his co-editor, Howard Guilford, was shot. Near did not think authorities were doing enough to find his partner’s assailant and used his paper to make his opinions known. He accused the chief of police of conspiring with Minneapolis gangsters and the local prosecutor of ignoring the matter. Minnesota had an abatement statute against “malicious, scandalous or defamatory newspapers, magazines or periodicals” and used it to enjoin publication of Near’s paper. The Supreme Court’s opinion, written by Justice Hughs, stated, “it has been generally, if not universally, considered that it is the chief purpose of the guaranty [of freedom of the press] to prevent previous restraints upon publication.”19 The Court overturned the state statute as a violation of 13 An Act for the Punishment of Certain Crimes against the United States (Sedition Act), July 14, 1798 ch. 74, 1 Stat. 5. 14 Levy, supra note 1, at 143. 15 Id. 16 Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204 (1919). 17 Harold Laswell, Theories of Political Propaganda, 21 Am. Pol. Sci. Rev., 627–631 (Aug., 1927); Walter Lipmann, Public Opinion, 1922. 18 283 U.S. 697 (1931). 19 Id. at 713. 25 26 Freedom of Expression the First Amendment, noting the seriousness of censoring charges of misconduct among public officers – which was a real concern during the Prohibition Era. The Court concluded that prior restraint would only be allowed in four exceptional cases: 1. obstruction of military recruitment or the publication of sailing dates, the number or location of troops; 2. obscenity; 3. incitements to violent overthrow of government; and 4. protection of private rights according to equitable principles. (For example, prior restraints have been upheld in order to protect defendants’ rights to a fair trail or plaintiffs’ rights to protect their intellectual property.) Courts have interpreted Near to mean that few circumstances other than national security can justify prior restraint on the press. In New York Times Co. v. United States (1971), the Supreme Court lifted an injunction barring The New York Times from printing the Pentagon’s classified record of the Vietnam conflict (otherwise known as the “Pentagon Papers”) because the government had not met the heavy burden required to warrant an injunction.20 In a concurring opinion, Justice Stewart explained that publication would not clearly result in “direct, immediate, and irreparable damage to our Nation or its people.”21 But in United States v. The Progressive (1979), a federal district court concluded that the Near standard was met when it enjoined a magazine from publishing directions to make a hydrogen bomb.22 Even though the information was available in the public domain in bits and pieces, the court believed that, when synthesized, it was too dangerous. The injunction was lifted later, however, when other publications printed the secret. The Supreme Court declared that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” in Nebraska Press Association v. Stuart (1976).23 The case involved a lower court’s attempt to impose a gag order on the media to limit the potential damage of excessive press coverage on the defendant’s right to a fair trail. The Supreme Court limited the circumstances in which a judge could issue a prior restraint to prevent excessive media coverage to situations in which no other alternative could curb the damaging effect of the publicity and a restraining order would actually be effective.24 Types of prior restraint orders On those occasions when courts do issue prior restraint orders, they come in three forms: temporary restraining orders, preliminary injunctions, and permanent 20 403 U.S. 713 (1971). Id. at 730 (Stewart, J., concurring). 22 United States v. The Progressive, 467 F. Supp. 990, 994 (1979). 23 437 U.S. 539 (1976). 24 Id. at 562. 21 Freedom of Expression 27 injunctions. A temporary restraining order is intended to supply immediate relief. An aggrieved party files a complaint with a court, applying for an order to stop someone from engaging in an action that if continued will result in “irreparable injury” before the matter can be heard in a formal court proceeding. Because the defendant is not present to defend his or her actions, the court may require the plaintiff to pay a bond to mitigate against any harm that may ensue to the defendant from the TRO if the plaintiff has misrepresented the circumstances. Along with the TRO, the court establishes a hearing date, so the defendant can come before the court to contest the order. At the hearing, the court may replace the TRO with a preliminary injunction if the plaintiff establishes both the potential for irreparable harm and the likelihood of winning a suit at trial. The court will also establish a trial date to determine whether issuing a permanent injunction is appropriate. A permanent injunction, established after a trial, is a court’s final order to enjoin an action permanently. Normally, the purpose of a temporary restraining order is to preserve the status quo until the court has time to give the matter due consideration. But, according to the U.S. Court of Appeals for the Sixth Circuit, a temporary restraining order “is a different beast in the First Amendment context.”25 In the context of press freedom, the status quo is to “publish news promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion.”26 Therefore, a court is obligated to deal with them on an emergency basis. Furthermore, while the criteria a court normally considers before issuing a restraining order include the potential for irreparable harm and the requesting party’s likelihood for success on the merits of the suit, in a First Amendment context, “the hurdle is substantially higher: publication must threaten an interest more fundamental than the First Amendment itself.”27 Are Restrictions on Political Funding a Prior Restraint? In a representative democracy, people must be able to express their political views to effect change. Consequently, political speech is given the broadest protection under the First Amendment. The Supreme Court has even gone so far as to protect political spending on First Amendment grounds, reasoning that it is necessary to fund political speech, thus a restriction on political spending constitutes a prior restraint. In 2010, the U.S. Supreme Court determined that restrictions on political speech by corporations and unions also counted as prior restraints in Citizens United v. FEC. In that case, the Supreme Court said that imposing limits on corporate spending to advocate for or against a particular candidate immediately before an election violated corporations’ free speech rights. This holding unsettled more than 100 years of campaign finance restrictions intended to prohibit corruption or the appearance of corruption in the political process. It may seem odd to think of corporations as having free speech rights. After all, they are not people. But in most legal (Continued) 25 Procter & Gamble Co. v. Banker’s Trust Co., 78 F.3d 219, 226 (1996). Id. (citing In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir. 1986)). 27 Id. at 227. 26 28 Freedom of Expression systems, corporations are considered “legal persons.” In legal parlance, a “person” is an entity subject to legal rights and duties. A legal person can own property, sue and be sued. Natural persons (people) are also legal persons to the extent that they are of sound mind and old enough to assume legal responsibilities. The notion that corporations deserved equal protection under the Constitution entered American jurisprudence through an 1854 Supreme Court case about corporate property rights. During oral arguments, the Chief Justice remarked that the Court was of opinion that the Fourteenth Amendment, which forbids a state to deny equal protection of the laws to any person within its jurisdiction, applied to corporations. Although this statement was not part of the legal holding in the case, a clerk added it to the Court’s printed opinion.28 As later decisions incorporated the fiction of corporate personhood, corporate rights expanded. But Congress has long been wary of the influence of corporations on the political process. As early as 1907, it passed the Tillman Act barring corporations from making monetary contributions to national campaigns. Following the Watergate scandal, Congress limited the amount of money individuals or organizations could donate to candidates for elections and required that donations above a certain threshold be disclosed to the Federal Election Commission, a regulatory agency it created to enforce the restrictions. Congress also limited the amount of money that candidates could spend on their campaigns.29 The new rules were challenged as a violation of the First Amendment in Buckley v. Valeo (1976). The Supreme Court upheld campaign contribution limits and disclosure requirements, concluding that large contributions could lead people to believe there was some kind of quid pro quo arrangement between the contributor and candidate. But it struck down limits on campaign spending. The Court observed that “A restriction on the amount of money a person or group can spend on political 28 communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”30 Further, it found no evidence that campaign spending led to corruption. The Supreme Court did, however, accept limits on corporate spending in Austin v. Michigan Chamber of Commerce (1990). The Court upheld a Michigan law, challenged on First Amendment grounds, which prevented corporations from using their treasury funds for independent expenditures to support or oppose a candidate’s election. The Court explained that, “Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.”31 It also noted that corporations still had an outlet for their political views because the law permitted them to support political action committees or to set up segregated funds to pay for political speech. What is the difference, you might ask? PACs and segregated funds are supported by individuals who are aware of and agree with the organization’s political purpose. Speech funded by a corporation’s treasury comes from stockholders who may not share the same political views. In a continuing effort to combat the influence of “big money” in national politics, Congress passed the Bipartisan Campaign Reform Act in 1992. This law, better known as the McCain-Feingold Act, was intended to close loopholes left by earlier legislation. Among its many provisions, the law prevented corporations and unions from funding “electioneering communications.”32 This was defined as any “broadcast, cable, or satellite communication” that refers to “a clearly identified candidate for federal office” and that is made either 60 days before a general election or 30 days before a primary election. Print and Internet communications are exempt. The Court later interpreted electioneering communications as speech that expressly advocates for the election or defeat of a particular Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886). Federal Election Campaign Act (FECA) of 1974. (P.L. No. 93–443). 30 Buckley v. Valeo, 424 U.S. 1, 20 (1976). 31 494 U. S. 652 (1990). 32 2 U.S.C § 441b(c). 29 Freedom of Expression candidate, but not speech that refers to a candidate in the context of an issue ad. The group Citizens United challenged the law when the Federal Election Commission prevented it from running a film on cable pay-per-view that disparaged Hilary Clinton’s c...
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1. The Fourteenth Amendment gave citizenship to former slaves, and the First Amendment
protects freedom of speech and religion. These two amendments are related because,
before the Fourteenth Amendment was passed, most African Americans were not
considered to be citizens, which meant that freedom of speech (as well as the rest of the
Bill of Rights) did not apply to them. Wh...


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