Communications hypothetical cases

timer Asked: Apr 14th, 2017

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The following are two hypotheticals or case problems — a type of question that you will see on the exams.Answer it in a response that runs less than one-half, single-spaced typed page for each — that is, no more than a full page for both problems. Apply the rules discussed in the text and in class.This is worth 8 % (out of 25%) of the quiz section grade.

4/14 3. The Hydrogen Bomb and the Progressive Magazine (1979) -Justification for prior restraint seemed stronger than in Pentagon Papers: He visited library and interviewed some scientist and wrote an article about how hydrogen bomb. The government knows it in advance and went to federal court to get a temporary injunction on the publication of this article. The government claimed it is harmful to the national security. It is not really the biggest secret though to make a bomb. It is a speed up for other countries who are still trying to development these kinds of techniques. The trial judge applied the Pentagon Paper case and the difference is certain types of secrets of made to be kept and uphold the prior restraint. They appealed to a higher court. -Case becomes moot: there is no need to go on, and there is no legal problems against any more. Other papers begin to publish about hydrogen bomb, so there is no need to go against the Progressive Magazine, so no official judgment from appealle court. 4. Special Forms for Prior Restraints -Gag orders in court proceedings -Banning obscene materials, false advertising -Non-disclosure contracts for government employees in sensitive positions: for instance, Valerie Plame Wilson’s book, Fair Game. Higher level officials are required to sign papers that said you are not allowed to quit in the middle of the job and go to other companies to release the secrets. You can’t distribute any information you learned when you are in the position. 5. Almost Prior Restraint -Restrictions on news gathering, especially during military actions -Confiscating a writer’s profits, including criminals (“Son of Sam” Laws) (WA): The Supreme Court claimed these types of laws to be unconstitutional. But WA state laws says in a different way, if anyone makes money based on their criminal actions, government will put money in a bank account and the victims can sue the criminal, if they win, they have the access to this bank account. Unit 5: Libel Introduction: 1. What is Libel and Why Do We Have Such Laws? -Libel is a message that hurts people’s reputations and lower his esteems in a community. It gives people a chance to restore reputation and a mechanism to get money. 2. Libel is a Continual Problem for the Media -Nature of the American press: laws very protective of press, creators and communicators, but still a problem. The press tends to look for conflicts and to get the news first, which means competition leads to bad judgment and sensational. -Libel law is complicated -Cases are expensive 3. What we will cover: basic elements to set up a libel case, fault, and process A. Establishing a Case 1. Prerequisite: Publication -What constitutes publication? If any third person besides the object and the creator hears the message, it qualifies the publication -Who’s the publisher and therefore responsible? Anyone involved in creating the message can be sued for libel, the editors, creators, publishers or anyone in the chain of production -protection for mere distributors: if they have no role in creating the message, they are not responsible, ex: bookstore, the mail boys. -online services are not publishers for simply hosting messages provided by others (Section 230 of Communications Decency Act): at first, two thoughts, the wire service, like Comcast are responsible and the other says no they are only distributors. The case was brought into the Congress. Section 230 says as long as the internet is not the creator of the content, and only serve for the distributor, they are not responsible for any legal issue. You will not be punished for libel if others use your account to publish message, and also you will not be punished if you edit the content and not changing the meaning of original author. 2. Prerequisite: Identification -Need not be named: enough detailed description of that person whether a normal person could tell who the message is referring to. -Identification exists in small but not large groups: can an individual sue for libel if the message targets at a group of people? Nobody’s name is mentioned, but the group is defamed, if the group is small enough, anyone in the group can sue for libel. But there is no limits on the number. Even though a large group is mentioned, but the medium limits the number to a small enough of people. -Identification can occur in works of fiction: the burden is on the plaintiff, or the person suing, to express identification. Add details might be fake,
4/7 & 4/9 Basic Principles of Media Law Analysis -common carrier: historically, monopoly in telephone, and not responsible for the content, serve everybody in the same term in one community. -where does the Internet fit? In Reno v. ACLU (1997), Supreme Court treated Internet as akin to print. 3. First Amendment Theories-guide decision making in cases -absolutist: the first amendment is an absolute statement and it says the Congress should make no law, government should not restricting speech at all. -ad hoc balancing: a court weighs two sides that have conflicts, and balance the two sides that get involved. Problem: not give us a lot of predictability. When stress, courts’ decisions fall under the majority thoughts, not protecting minority points. -preferred position balancing: courts should balance interests. It starts with a preference, and tend to protect the expression than the other one. The freedom is in the preferred position and harm to the other interests. Value 1st amendment and start with presumption. The burden is on the side that tries to limit the expression. The law is in the favor of free expression. Presumption: the person is innocent until he is proved guilty. -Meiklejohn (or two-level): especially important to protect speech about the governments. That’s what we need to vote an official and who to vote for. If the speech is about public affairs, it should be absolutely protected. Speech into two categories, speech about public affairs (protected absolutely), and the other (somewhat protected). -Symbolic speech or speech/action: comes from Vietnam War. Government should protect expression itself absolutely, and can limit any further actions that cannot be justified. The symbolic idea of speech should be protected, and if that leads to actions that cannot be justified, government can regulate. Burning U.S flag is protected, but the law prohibits setting a fire in public space. 4. Technical Requirements of Laws Restricting Expression -Time, place and manner of expression can be regulated in ways consistent with nature of a public forum. Forum is the place that speech occurs. Traditional public forum, the Red Square, the area in front of the HUB, are places where the speech occurs historically, and it is hard for government to regulate those places; Streets, can be used for parade and protest, are mainly for transportation. Government has more control on those places where have other purpose; Most private, but has a major public purpose, like shopping malls, and private properties, like a person’s backyard, government has regulations, because those lands are owned by people who buy them. -Any government limit on expression, including on public forum, have to -be precise and narrowly tailored: Over-broad and vague, law should be written precisely enough that people should be aware of before they cross the line. Legislative bodies can re-write the laws. -treat content neutrally: when law restrict expression, it cannot be allow this but not allow that. Treated equally. -serve a substantial or compelling government interest: government wants to regulate a public forum, it has a burden to justify how important and substantial is it to limit the expression there. Cannot pass out fryers in airport, because of government interest of public safety. Government has to show there is enough of a reason to regulate the expression -limit an administrator’s discretion: whoever enforce this law doesn’t have the absolute power to decide how to apply this law. Kind of related to content neutrally. -avoid a complete ban on expression: when laws and restriction pile up, it should not be a ban on expression at all. Unit 3 Communication and Violence 1. Sedition-speech that threatens government -Until 1950s, courts used a (bad or reasonable) tendency test that did not protect unpopular ideas. Taking the ad hoc balancing, if a speech has a tendency to create violent actions toward the government, the words could be punished -don’t want to speech to go so far that causes violence and social disorganize. -In 1969, court adopted clear and present danger test (Brandenburg) to distinguish between advocacy of ideas (protected) and incitement to violence (not protected): -Speech has to intend to cause serious harm (old elements) -And the speeches are likely to lead to an action and that action happens immediately (new, added 1969): no evidence someone will do something violent right now. If it does not lead to immediate violence, it should be protected. Almost no successful sedition persecution since Brandenburg in recent US history. 2. Hate speech threatens groups of people, but first amendment makes prosecution difficult -Hate speech=targeting people and groups of people and stigmatize them according their basic characters, religion, sexual orientation, gender, race, etc. -Fighting words doctrine imposes some limits on provocative speech: it is ok to punish the speaker if it is face to face distance where a fight is likely to take place. But it doesn’t cover the most situation of the hate speech. -But the cases involving Nazis in Skokie, IL (1977-78) show that most such speech is protected: the city of Skokie tried to stop them, the court rejected by the content neutrally. Why not fighting words? The authority in Skokie knew in advance, and they should protect Nazis from the citizens of Skokie. Authority is supposed to protect speakers from angry audience. -Hate speech codes and laws undermined by R.A.V. v. St. Paul (1992): most common in universities to adopt hate speech codes, but only one made it appeal to the Supreme Court. Diverse ideas vs the freedom of expression have conflicts. Most of them are considered unconstitutional from the case Doe v. University of Michigan (1989). -R.A.V. v. St. Paul (1992): set something on fire on a private property. The law of St. Paul doesn’t meet the first amendment standards. It’s not content neutral and too vague, so it is unconstitutional. The city does not have to persecute this case into the first amendment case and turned into another persecution, ex trespassing, setting fire in a public place. 3. Speech that threatens an individual is protected unless it’s a true threat: hard to persecute, because prove the intention -How determine? -intent of speaker: hard to judge the intention of the speaker. Look at the target of the speech. -how a reasonable person perceives remarks: jury, or an normal adult look at it, if it’s a true threat or just a joke. -context: -online speech -wanted posters on anti-abortion website (see The Nuremberg Files) -Facebook case (Elonis) now before Supreme Court: Elonis and his wife divorced and she has a protection order. Elonis goes online and publish threats on his Facebook page, targeted female FBI agent, Kindergarten, Police and his wife. -The Nuremberg Files: anti-abortion groups created this web page and express the wrong ideas of abortion. If Americans realize that abortion is murder, they will put every doctor on trial. They put doctor’s address and all the information on the website. Those are true threats that are not protected the First Amendment. It is so close to the violence, and the speech is to target specific individuals. 4. Media Rarely Have Liability When Violence is Inspired by Content-Movies, Games and Music -Courts use clear and present danger test: should we punish those who created the content? It is extremely difficult. The intention standard is used, the sue does not work because the creation is not intentional to create violence. -But “Hitman” case is a warning: the hitman and the father are arrested for murdering his wife, kid and a nurse. The surviving family went after the publisher of two books that the father used to get the idea of killing. We don’t have a formal judgment, the publisher agreed to settle this off court. But the circumstances of punishing the creater of message that leads to violent actions do exist! 5. Law cannot limit minors’ access to violent content, Court Ruled in Brown (2011), involving video games. Kids cannot buy violent video games themselves without permission of their parents, and this law was shut down by federal government. Merchants cannot sell video games to minors if the video games contain some violent content without parents’ permission. The Supreme Court heard the case and the justice argued that there is no evidence that shows exposure to the violent video games leads to the violent actions. And why only this medium, why only video games? Not TV, internet, radio? The rating system is not law, but industrial standards. Unit 4: Prior Restraints 1. Near v. Minnesota (1931) -Near attacked everybody in the city. Minnesota law said a judge can show down a publication if it keeps scandalize community. His business got shut down and got to appeal to the Supreme Court after he lost the court case in the Minnesota Supreme Court. Generally, there is no prior restraints in the U.S., but there are 3 standards of exception: 1) National security problem. 2) Leading to the violence. 3)... Prior restraints should be limited as possible, but there are some circumstances that allow. -Prior restraints generally unconstitutional -But permissible in limited situation 2. Pentagon Papers Case (New York Times v. U.S.; U.S. v. Washington Post) (1971) -Ellsberg leaks the papers: both papers get temporary injunctions by trial courts to ban the publication of specific articles. Mainly two schools of thoughts -Supreme Court offers a general test for prior restraints: -presumed unconstitutional: preferred position balancing theory is used that it is unconstitutional for U.S to ban publish certain kinds of articles -government has heavy burden of showing necessity: government has to show that why it is necessary to grand a prior restraints on the publication. -justices divide roughly into three camps: -prior restraints always forbidden: 2 votes. Prior restraints should just not happen -governments case for this prior restraint is weak: 4 votes. The Esponign Act of 1917 does not really apply here. -Prior restrains in such situations might be acceptable: 3 votes. Publication will harm national security. -aftermath: the paper can publish after the 3 week temporary injunction from the Supreme Court. What government did to get involved is to stop the source that gave to the press in the first place. Nixon group set up a group of people called plumbers. The first goal is to stop future leaking of more sources. The Plumbers decided to prosecute Ellsberg for not doing what says in the contract-not sharing with public. The plumbers broke into psychiatrist’s office and stole file and used it in the court. Once the court learned how the sources were get, they dismissed the court, because no one could just steal information. They messed up the case that they would have won. The blueprint from this case is they can stop press from publishing, but they can go after the source who give information to the press.
COM 440/POLS 461 Assignment 1: Hypotheticals The following are two hypotheticals or case problems — a type of question that you will see on the exams. Answer it in a response that runs less than one-half, single-spaced typed page for each — that is, no more than a full page for both problems. Apply the rules discussed in the text and in class. This is worth 8 % (out of 25%) of the quiz section grade. Due: April 14 1. Assume that Forks, Washington, a community dependent on logging, adopted the following ordinance: "The mayor shall have the authority to impose reasonable restrictions on groups that use the town's streets for activities that oppose the continued logging of old-growth timber." A group, S.O.S. (Spotted Owl Supporters), challenges the constitutionality of the law. Is the court likely to find that this ordinance violates the First Amendment? Identify and briefly discuss three reasons for your answer (4 points). Answer: 2. A freelance writer submits an article to your magazine that describes how to make deadly biological weapons. The writer tells you that all the information was gathered from materials at a university library. You ask to see the documentation for the article and notice that some of the papers are stamped "top secret." You decide to go ahead and publish the article, but the Defense Department warns you that the information could be used by terrorists or foreign nations to produce devastating weapons. The Defense Department gets a court order to temporarily stop publication. What legal issue is presented by the court order? What test will be used before the court permanently bans publication? Explain the test and its application (4 points). Answer:
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