4) The First Amendment continues to evolve as courts try to establish rules to deal with emerging communication technology.

 
I talked about how students find the court cases that are assigned.  I also explained how the exams work and what is expected of the students in the class.

September 3, 2008:

Professor Mike Farrell substituted for me.  He talked about various sources of the law (constitutional law, common law, statutory law) and described the characteristics of each.

The common law is judge-made law based on decisions in numerous cases.  The principles of those cases (the ratio decidendi) become precedents for future cases with similar principles but not necessarily similar facts.  Over time, those precedents develop into rules that are applied to later cases (stare decisis).  This is how the law develops some uniformity and consistency so people will know in advance what the rules are in society.  This is a complicated but important concept.

September 8, 2008:

I talked about the structure of the state and federal court systems, including how federal judges are chosen.  I mentioned how difficult it is to get a case heard by the U.S. Supreme Court.

I explained that there are several distinct elements of a case: 

1)  What court decided the case

2)  The facts of the case

3)  The decision of the case (who won, who lost, and the vote)

4)  The opinion (the reasoning for the decision; the most important part of the case because it is used as a precedent in later cases)

5)  Dissenting opinions, if any

6)  What issues are left unresolved by the case

In Schenck (Schenck v. U.S. , 1919), we talked about the "clear and present danger" test formulated by the Court.  In Debs, we talked about how the Court favored national security interests over those of the First Amendment.  We talked for some time about whether Debs's speech really was a clear and present danger and whether his conviction violated his First Amendment rights.

September 10, 2008

We talked about the Abrams case (Abrams v. U.S., 1919) and Justice Holmes's dissent, and we discussed the "marketplace of ideas" theory of the First Amendment, which is extremely important.  I explained why the marketplace of ideas theory sounds good in the abstract, but does not always work very well in practice.

We talked about the major free speech cases including Gitlow v. New York (1925), Whitney v. California (1927), Dennis v. U.S. (1951), Yates v. U.S. (1957), and Brandenburg v. Ohio (1959).

When discussing Gitlow, I explained how the Court used the due process clause of the 14th Amendment to apply the First Amendment to the states for the first time.  

I also explained the "gravity of evil" test from Dennis (Dennis v. U.S., 1951) and how it modified the clear and present danger test to make it even easier for the government to prosecute individuals accused of promoting dangerous ideas.  In Yates (Yates v. U.S. 1957), the Court greatly extended the protections of the First Amendment to those disseminating controversial ideas.  In overturning the convictions of 14 California communists, the Court held that there is a difference between advocacy of "abstract doctrine" and inciting someone to commit a lawless act.

In Brandenburg v. Ohio (1969), Court held that in order to punish speech in such a context, the speaker must have directly incited or attempted to incite lawless action, and that any act that results has to be directly connected to the speech.  This standard provided substantially more protection than the "clear and present danger" test and the "gravity of evil" test.

September 15, 2008

We began discussing "prior restraint" including how prior restraint and subsequent punishment relate to each other.  I explained why prior restraint is rarely tolerated in this country and discussed the licensing of printers in the colonial era as the source for the limited exceptions to the prior restraint rule. 

We then discussed Near v. Minnesota including the major sections of Chief Justice Hughes's majority opinion.  I also talked about the two reasons that Justice Butler gave for dissenting in the case and Blackstone's statement, quoted by Hughes, about prior restraint and freedom.

It is important to be able to identify the major issues of a case and such secondary issues as "dicta" and knowing what function they serve in legal decisions.  I explained that the "ratio decidendi" of a case, which is based on the facts of that case, is the only part of a judicial opinion that is supposed to be applied to later cases.  I explained why it works this way and why it is such an important principle in the law.

We discussed various issues related to prior restraint, including the principle that any order that seeks to restrict the dissemination of information arrives at a court with a "presumption of unconstitutionality."  That phrase comes from Austin v. Keefe (1971) which we talked about.  That is a very difficult burden to overcome and is one reason why prior restraint orders are so rare.

September 17, 2008

We talked about New York Times v. U.S. (1971), the Pentagon Papers case.  Although the Court voted 6-3 in favor of the newspapers' right to publish the documents, it was not a resounding victory for the First Amendment.  Several of the justices in the majority held that the government did not meet its heavy burden of justifying a prior restraint, but they left open the possibility that such orders would be constitutional under different circumstances.

We then discussed U.S. v. Progressive, including the reasons Judge Warren "distinguished" Progressive from the Pentagon Papers case (he found three differences which we talked about in class).  These differences are important because they explain why Judge Warren did not follow the precedent set in the NYT case.

I also discussed the first chapter of the Madison book.

September 22, 2008

I showed a videotape on hate speech.

September 24, 2008

I discussed the three types of public forums:  1) public forum; 2) limited public forum; and 3) non-public forum, and talked about the characteristics of each.  I explained that the "forum" analysis is very important.  In Hazelwood, the Supreme Court determined that the high school newspaper was a "non-public forum" and thus the principal acted reasonably in withholding the pages from the paper.

We then discussed the Gibson case involving the KSU yearbook.  In that case, the U.S. Court of Appeals for the Sixth Circuit concluded that the KSU yearbook was a "limited public forum," and thus any restriction on its distribution that was "content-based," as thus requires "strict scrutiny" analysis.

September 29, 2008

We discussed the "strict scrutiny" standard which is applied in a number of First Amendment contexts.  When applying strict scrutiny, a court asks these questions (all three must be answered yes, or else the statute or administrative action is declared unconstitutional):

1)  Is the government interest compelling (rather than just important)?

2)  Does the law or administrative policy direct advance that interest?

3)  Does it use the "least restrictive means" so it interferes with as little First Amendment protection as possible?

Rarely does a statute or administrative action survive strict scrutiny analysis. 

Courts will often apply a "rational basis" standard (usually in non-First Amendment cases) which is highly deferential to the legislature (and thus the law is likely to be upheld).

Courts will also apply a "strict scrutiny" standard when prior restraint is at issue or there is a content-based action in a public forum or other contexts.

Oct. 1, 2008

We talked about the Hosty v. Carter case (2005), in which the U.S. Court of Appeals for the Seventh Circuit applied the Hazelwood decision to a student newspaper at a public university.  The court majority concluded that because the university in Hosty seemed to have subsidized the student newspaper (presumably by providing free space, utilities, and the salary of the adviser), it likely had created a "limited public forum."  Thus, the university could not censor the content of the student newspaper.  The court also ruled that it was not relevant that the newspaper in Hosty was "independent" and not part of the curriculum.  What mattered was that the newspaper was subsidized.

October 6, 2008

We had a review for the first in-class and take-home exams.

October 8, 2008

Students took the first in-class exam and were given the take-home exams.

October 13, 2008

I showed a videotape about a California doctor who sued CBS News and "60 Minutes."  I explained why the doctor, even though a private person, had to prove actual malice.

October 15, 2008

We talked about New York Times v. Sullivan.  The case ended the practice of "strict liability" whereby a media defendant who published false and defamatory material lost a libel suit no matter what the reason for the mistake.  The Court established a "fault" standard for public officials in Sullivan.  They must demonstrate "actual malice" with convincing clarity to win a libel suit.

I explained in detail that actual malice is a "subjective" standard, meaning that the issue is whether the reporter entertained serious doubts as to the truthfulness of the report, or recklessly disregarded whether the report was false.  A subjective standard mostly considers the state of mind of the reporter and others involved in preparing the story.  Ill-will toward the subject of the story is not supposed to be a factor.

An "objective" standard, on the other hand, asks what responsible reporters would have done under the same circumstances.  Negligence is an objective standard, and is much easier to prove than actual malice.  That makes the decision as to who is a public figure and who is a private person extremely important.

After Sullivan, the Supreme Court created the category of "public figures" in Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967) and decided that public figures must also prove actual malice with convincing clarity.  Because of the way the magazine reported the story, Butts was able to keep the money awarded by the jury because the Supreme Court found there was sufficient evidence of actual malice.

In 1971, the Supreme Court established the category of "private persons" in Rosenbloom v. Metromedia, and by a plurality vote, concluded that private persons involved in matters of public interest must prove actual malice.

October 20, 2008

We discussed how the Supreme Court protected reputation beginning in 1974 with Gertz v. Welch.  In that case the Court held that Gertz was a private person, and further held that states may decide for themselves the appropriate standard for private persons as long as there is a minimum level of fault (no strict liability).  Most states, including Kentucky, have chosen negligence as the appropriate standard.

Gertz also showed that in order for someone to be considered a public figure, that person must "inject themselves into a public controversy."  That often means that a court will find someone to be a private person for purposes of the libel suit.

Gertz established different standards for compensatory and punitive damages.  For private persons, in order to win compensatory damages, they must show whatever standard the state has chosen (most have chosen negligence).  However, to win punitive damages, they must prove actual malice.  Jurors often get confused about these standards.

(This applies to private persons only.  For public officials and public officials, they cannot win any money without showing actual malice).

Compensatory damages are used to compensate for general harm to reputation and monetary loss, and are limited in nature.  Punitive damages are used to punish and deter and although not quite unlimited, jurors have substantial discretion and can award huge amounts.  If the jury intends to punish the defendant, it must award enough money so the defendant feels the punishment.

October 22, 2008

I discussed several Supreme Court decisions that further defined which libel plaintiffs would be public figures and which would be private persons.  Time Inc. v. Firestone (1976) held that someone must "inject themselves into the vortex of a public controversy" to be a public figure.  Mrs. Firestone was considered to be a private person even though her trial was a matter of substantial public interest or curiosity, she held press conferences, and she subscribed to a newspaper clipping service.

The Court held Ronald Hutchinson to be a private person in Hutchinson v. Proxmire (1979) even though his research was funded with public money and he published the results of his research.  The Court concluded that he had not injected himself into a general public controversy of misuse of public funds.

The Court also determined that Wolston was a private person in Wolston v. Readers Digest (1979).  He had not sought publicity, and had actually tried to maintain a private life.  The Court had no problem finding him to be a private person in the 1970s; he may have even been a private person in the 1950s when he was the subject of news stories related to Communist spying. 

I also talked about Herbert v. Lando (1979), in which the Supreme Court ruled that in an actual malice case, journalists can be required to reveal what they were thinking and what they said or wrote to colleagues as they put the report together.  The Court ruled that if the plaintiff has to prove the defendant had serious doubts about the truthfulness of the report, the plaintiff is entitled to ask these questions.

October 27, 2008

We talked about Harte-Hanks.  The case appears to have modified the actual malice standard by adding "purposeful avoidance of truth" as one of the factors that could considered in determining whether someone acted maliciously (actual malice) in reporting a news story.  

The Court determined in Harte-Hanks that if information is available that would show journalists that what they were reporting about someone is false, and they decline to review that information, that can be a factor in determining actual malice.  This makes the actual malice standard slightly more "objective" (negligence standard) because it seems to consider what a responsible journalist would have done under the same circumstances.

We talked about Masson where the Court concluded that deliberate alteration of quotes is not, alone, enough to constitute actual malice.  However, if those who prepared the story altered the meaning of those words, then that is something a jury can consider in determining actual malice.

October 29, 2008

We discussed Ball v. E.W. Scripps (1990).  This case is very important because the Kentucky Supreme Court established standards that make it relatively easy to prove actual malice.  The court criticized actions taken by the newspaper, or not taken by the paper, in preparing the story about the commonwealth attorney.  The court said that it applied Harte-Hanks to the facts of Ball and thus argued that it was using the standards that the Supreme Court established in that case.  It came to the conclusion that when you add up all the factors, the newspaper did act with reckless disregard for the truth.  It is important for the students to know how Harte-Hanks was applied and why the Kentucky Supreme Court concluded that the paper acted maliciously.

November 3, 2008

We talked about the Warford v. Herald-Leader (1990).   I explained that because the Kentucky Supreme Court defined the "controversy" as an on-going controversy related to recruiting that was taking place when Warford began working at the University of Pittsburgh, and there was no such issue at the time, he was only a private person and not a public figure.  The trial judge had viewed the controversy more broadly by considering it to be recruiting at large basketball programs in general.  But the state supreme court disagreed.  The supreme court's view means that plaintiffs, even ones who are well known, are more likely to be considered private persons.

November 5, 2008

We talked about Internet-related libel suits including Stratton-Oakmont v. Prodigy (1995), Zeran v. AOL (1997), and Drudge v. Blumenthal (1998).  In Stratton-Oakmont, Justice Ain ruled that Prodigy was a publisher and not a distributor, and was thus responsible for the statements made on the financial bulletin board.  We discussed why Justice Ain came to that conclusion.

I explained that Congress passed Section 230 of the Telecommunications Act of 1996 to provide immunity to Internet Service Providers (ISPs) when they carry content created by others.  This was passed in response to Justice Ain's decision.

We talked about Ken Zeran's lawsuit involving the bogus ad for the T-shirts and his lawsuit against the Oklahoma City radio station and AOL.  The court in the AOL case found in favor of AOL because of Section 230. 

We then talked about Sydney Blumenthal's lawsuit against Drudge.  AOL was again dismissed from the lawsuit because of Section 230.  I explained the jurisdictional issues that allowed the Blumenthals to sue Drudge in Washington, D.C.

November 10, 2008

We discussed privileges and defenses to a libel suit:  truth, opinion/fair comment, and qualified privilege to report legislative and judicial proceedings.

We talked about Milkovich v. Lorain Journal (1990), decided by the Supreme Court.  The court concluded that the statement about the wrestling coach was not protected opinion.  The key issue is whether the opinion includes factual assertions that are provable as true or false.  Sometimes it is difficult to tell whether something is pure opinion and thus protected from a lawsuit.

When it comes to the privilege that journalists have to report statements made in open court or in legislative proceedings, the privilege applies as long as the reporting is fair and accurate.

November 12, 2008

Students took the in-class exam and were given the take-home exam.

November 17, 2008

We went over the answers to the in-class exam.  We then began to discuss privacy.  There are several important characteristics to consider at the outset:

-- Unlike libel, truth is not a defense to a privacy lawsuit.

-- In libel, the damage awards compensate harm to reputation.  In privacy, it is for pain, suffering, and humiliation.  Juries usually award much smaller amounts in privacy cases because they believe it takes less money to compensate for embarrassment or humiliation than for damage to reputation.

-- Privacy is newer and much less developed than libel.

-- The Supreme Court has handed down relatively few privacy decisions; that means most development of privacy standards has been done at the state level.

-- Because the states decide most privacy cases, there is substantial variance in privacy standards from one jurisdiction to the other.

-- Because the Supreme Court has decided so few privacy cases, there are many unanswered questions about privacy and many issues that state and federal courts have yet to resolve.

-- "Traditional" privacy standards as development in cases don't provide much help when it comes to privacy issues in the Internet era.

I talked about the first of the four privacy torts, appropriation, which is defined and described at length in the textbook.  Among the defenses to an appropriation lawsuit is consent and newsworthiness.  You will see in the textbook a discussion of what it means to give valid consent.

I talked about the Supreme Court's only appropriation case, Zacchini v. Scripps-Howard (1977) which involved a sub-section of privacy, namely "right to publicity."

I also discussed quite a few of the appropriation cases that are covered in the textbook.

I then discussed  the second privacy tort, intrusion, and talked about the Dietemann case (Dietemann v. Time, 9th Cir. 1971).

I made the point that the 9th Circuit Court of Appeals seemed intolerant of the requirements of investigative journalism in finding in favor of Dietemann.  There are some stories that require the use of undercover cameras and microphones, and sometimes journalists cannot tell someone who they are if they want to be able to cover the story.  The court did not seem sympathetic.  I said that the case might have been decided differently if his "office" had not been in his home. 

November 19, 2008

We talked about public disclosure of private information.  Usually, a court must find that the information was "highly offensive to a reasonable person" (a person viewing the information, not the person who is the subject of the communication) and that it is "not newsworthy."

I talked about Virgil v. Time (1975) and explained that the 9th Circuit Court of Appeals concluded that Virgil's exploits were newsworthy and that the author of the Sports Illustrated article did not commit "morbid or sensational prying for its own sake."

We discussed Cox v. Cohn (1975) in which the Supreme Court held that the TV station could not be sued for accurately reporting information found in a lawfully-obtained public document.  Cox can be compared to Florida Star v. BJF (1989) (in the textbook) in which the sexual assault victim's name was accidentally included in the police report.  Nevertheless, although on narrower grounds than Cox, the Supreme Court found in favor of the newspaper.

I finished talking about privacy by discussing the last of the privacy torts, false light.  Unlike libel, the subject of a false light lawsuit does not necessarily need to be defamatory, and often isn't.  

We discussed Time Inc. v. Hill (1967) in which the Supreme Court held that the Hill family had to show "reckless disregard for the truth" (actual malice) in order to win the lawsuit.

But the Hill actual malice standard may have been modified by Gertz v. Welch (1974) when the Supreme Court decided that private persons in libel cases did not have to prove actual malice, but instead only had to show whatever the state standard is as long as there is a minimum level of fault (negligence).  

As we discussed in class, it makes no sense for private persons to be able to win by showing negligence in a libel case, but they have to prove actual malice in a privacy case.

The Court had the chance (its only chance) to clear up this issue in Cantrell v. Forest City Publishing Co. (1974), which the class read.  But the Court said it could not decide the issue because Mrs. Cantrell was able to prove actual malice, and courts cannot base their holdings on non-existent facts.

In other words, if Mrs. Cantrell had proved only negligence, the Court would almost certainly have applied the Gertz standard.  Thus private persons would have to prove only negligence in false light cases.  But because the Court was not presented with that set of facts, it had no choice but to stick with the Hill actual malice standard.

As a result, states have come to differing conclusions on this issue.  Some go with Hill, others Gertz.  Kentucky has stuck with Hill, meaning a false light invasion of privacy plaintiff who is a private person must prove actual malice to win, while a libel plaintiff only has to prove negligence.

November 24, 2008

I gave back the second take-home essays and discussed them.  I then talked about access to information, including whether reporters can go on to private property to cover stories, whether they have to identify themselves as reporters when covering stories, and how reporters used federal state open records and open meetings laws.

December 1, 2008

I talked about Branzburg v. Hayes (1972), in which the Supreme Court decided that a reporter who saw a crime being committed had to testify before a grand jury, even though he had promised confidentiality to his sources.  Unfortunately, the case has been used for the broader principle that reporters do not have a First Amendment right to protect the names of sources.  Some courts, however, realizing that reporters rarely see a crime committed, have developed standards that provide some protection for journalists who do not want to reveal the identity of their sources.

I then began discussing contempt.  I explained that there are two types of contempt.  Civil contempt is used to force compliance with a judge's order, and is indefinite in nature.  Criminal contempt is used to punish and deter, and to vindicate the court's authority.  The punishment is either a fixed fine or jail sentence or both.  I then explained the difference between direct and indirect criminal contempt and why the difference is important.

I talked about In re Farber (New Jersey Supreme Court, 1978) to explain how he was ordered to reveal the names of sources and to turn over documents in the doctor's murder trial, and refused.  He and the New York Times were then held in civil contempt.  He was also sentenced to six months for criminal contempt (later rescinded by the judge) as punishment for disobeying the court's order.

December 3, 2008

I discussed Walker v. Birmingham (1967) in which the Supreme Court upheld the contempt convictions of civil rights activists for disobeying a judge's order that was issued two days before a scheduled Easter Day march.  Although the Court recognized that the order was almost certainly unconstitutional, it nevertheless concluded that the marchers should have tried to have it set aside before they disobeyed the judge's order.

We discussed Dickinson v. U.S. (5th Cir. 1972) in which the Court of Appeals upheld the contempt conviction of newspaper reporters who defied a judge's order not to print information about a hearing.  The judge was concerned about the defendant's ability to get a fair trial.  Although the Court of Appeals clearly determined that the order was an unconstitutional prior restraint, it nevertheless upheld the contempt conviction on the grounds that journalists (and others) cannot choose which orders to obey and which to ignore.

This principle is referred to as the "Dickinson" rule or the "collateral bar" rule.  It holds that once you disobey a judicial order, you forfeit the right to challenge the validity of the original order while appealing the contempt conviction.  At that point, the original order is considered a "collateral" issue -- one that is off to the side -- and therefore, cannot be reexamined during the appeal of the contempt conviction.  

I then discussed In re Providence Journal (1st Cir. 1986) and the en banc decision in 1987 in which the Court of Appeals for the First Circuit rejected the Dickinson rule.  The court basically held that if the original order was unconstitutional, then it cannot form the basis of a contempt citation.  The court said that journalists can disobey a "transparently invalid" order and challenge its validity while appealing the contempt conviction.  We talked about how someone could tell when an order is transparently invalid.  I discussed the three or four sections of the Providence case where the court provided some guidance as to what constitutes such an order.

December 8, 2008

I finished discussing the Providence Journal case.  The Supreme Court, after hearing arguments in 1988 in the case, dismissed the writ of certiorari because the attorney representing the judge's lawyer (the judge who had held the newspaper in contempt) had failed to secure permission from the attorney general or the solicitor general to represent the United States before the Supreme Court, as required by law.

With the dismissal of the case, it means that two courts of appeals have come to opposite conclusions on this important issue.  Students will have a chance on the take-home exam to explain which side they think has the better argument. 

I also discussed Nebraska Press Association v. Stuart (1976) in which the Supreme Court established a three-part test that makes it very difficult for a gag order issued against the press to be upheld. 

At the end of class, I handed back the Madison essays.

 

 

 

 

 

 

 

 

 

 

 

 

 

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