COMM371/Class notes

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Contents

Week 1 Jan 12

  • Introducing prof and TAs
  • Review the syllabus
  • Litigation overview
  • The Paper Chase
  • Sign out before you leave class
  • Heiden, How to brief a case

Todo:

  • Select a week to "own"
  • Invite more speaker (Google, MTV?)
  • Investigate some new activities for the 2nd half of class meetings
  • Contact students in my cohort

Case analysis

Caption

  • Court
    • Where pending?
    • How does this affect the outcome?
  • Parties
    • Who is involved?
    • Conventionally: plaintiff comes first
  • Case number
    • Often the first two numerals indicate year, how long has it been going on?
  • Date
    • Newer cases often of more value to use
    • Excepting SCOTUS cases

Opinion

  • Who wrote it?
  • Facts
  • Legally important facts
  • Prior procedural posture
  • Issue to be decided
  • Law that applies
  • Court's holding
  • Dissent/joining opinion

Week 2, Jan 19

Pacifica preview

Opening w/ Carlin's "Dirty words" sketch

"What kind of station is it?"

  • XM v. FM

"Kids could be listening"

  • Used as justification for all sorts of behavior
  • Congress will nearly always pass laws on the basis of "protecting children"

"Depends on the time it was broadcast"

  • Late at night?
  • FCC safeharbor: 6am-10pm is the time that there might be kids listening

What kind of content is it?

  • "Obscene"
  • "Offensive to some people"
  • "Indecent"

Janet / Justin "wardrobe malfunction"

Might it appeal to the "prurient interest"?

  • Would that take it over the next step into obscenity?

Types of speech

Obscene

  • Appeals to prurient interest
  • U.S. gov't has authority to regulate obscenity

Indecent

  • Acceptable to have material that may offend
  • e.g. Loveline on radio after 10pm

On the First amendment

"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.", 15 December 1791

Freedom of religion

  • 1776, Montreal has freedom of religion
  • U.S. colonies do not
  • Montreal does not join the revolution

Personal liberty v. control

  • Who is controlled?
  • What?
  • How?

Obscenity

Control on content

  • Does it violate the 1st amendment?

Roth v. U.S. in 1957

3 pronged test

  • Appeals to prurient interest
  • Patently offensive according to state law
  • Lacking literary, artistic, social, scientific value

Miller

Indecent material sent through the mail to a restaurant

  • Newport Beach, 1972
    • beach community

Materials consisted of

  • Brochures
  • Video
  • Images of two or more people engaged in sex acts
    • Genitals on display

Opened by,

  • Adult male over age of 18
  • And his mother

Police interrupt Miller's "speech"

  • The distribution of his material
    • Is Miller or his business the speaker?
    • The law protects the speech of corporations
    • Aside, is computer code speech?

What was the jury like in 1972?

  • Aerospace (paid to serve on juries)
  • Unemployed
  • Students
  • Jury vote was not included but in CA you need 12-0 to convict

Type of evidence?

  • Community standards:

Why no expert witness for the defense?

  • Couldn't get one?
  • Bad lawyer?
    • Didn't bring in an expert regarding the Newport Beach community standard.

How did this get to SCOTUS?

  • SCOTUS wanted to address the issue
  • Despite it being a misdemeanor, they used it as an opportunity to write about it
  • Aside: occasionally you see the court misstate the fact so that certain members of the court could find the result they wanted

Hits the SCOTUS in 1973

  • "Sexual revolution" underway in certain areas
    • First opinions on birth control 1972

According to Roth's "three prongs"

  • Was it offensive? Title: Intercourse
  • Perhaps it was a marital aid?
  • Would the comm standards of Newport Beach match other LA area communities?
    • Unanswered by SCOTUS
  • Value?
    • Artistic value? Performance?
    • Value as a tool in marital aid?
    • Miller never brought these questions to the trial court

Douglas' dissent

  • Test for obscenity is vague

U.S. v. Thomas

Websites viewable from Memphis

  • Pornographers in other states produce material viewable in TN
  • Have they voluntarily inserted their material into the TN jurisdiction?

Was it a pop-up?

  • Or a website that you must visit?
  • Attorney suggested that it was simply accessible

SCOTUS says it's overbroad reading

  • Simply being accessible is not enough
  • Memphis cannot hault people in from all over the world
  • Individual communities should not be policing the whole world

Weaknesses in Roth's 3 prong

Community standards are moving target

  • Over time, over space
  • Consider an old Playboy being sold as an antique

Telecommunications Act of 1996

  • V-chip
  • All about children

Radio reg history

  • 1925, Hoover introduces the "public benefit"
  • 1930, National Committee on Education by Radio lobbies for segment of spectrum reserved for edu purps
  • 1934, Telecommunications Act establishes that airways are a public resources and broadcasters must serve the "public interest, convenience, and necessity"
  • 1990, Children's TV Act
    • Req'd channels to provide kid programming,
    • Restricted advertising,
    • Req'd FCC to investigate product-related programming

1996, Children's Television Report and Order

    • Lack of compliance with 1990 act
    • Defined "core" programming as programs designed to educate and inform children
    • Core had to be regularly scheduled between 7am-10pm, at least 30 min, and ID'd as educational for kids
    • Conflicts w/ First amend
    • FCC regulating broadcast more strongly than cable, satellite

1996 ACT Congressional findings

    • TV "influences" children's perception of the values and behavior that are common and acceptable in society
    • TV operators should follow programming that considers children
    • Average child exposed to 25 hrs / week
    • Media effects research findings
      • Violent TV linked to violent behavior
      • Students affected by sexual material on TV
      • Parents concerned and support tech controls
    • Government wishes to "empower" parents
    • Should include TV ratings system
      • Congress assures "buy-in" by building a case based on children

Reno v. ACLU, 1997

Problems with two sections of the Communication Decency Act (CDA)

Vagueness

  • Chills free speech
  • Overbroad to regulate the internet

Context

Is internet a library or a shopping mall?

  • Can we use these spaces as instructive metaphors?

Implications

Can a parent transmit indecent material to a child?

  • Parent buys porn for child

Affirmative steps

Distinguishing internet from radio, TV

  • e.g. Pop up ads, porno spam

14th Amendment

Constitutioe and amendments apply to state law.

Week 3, Jan 26

Overing is out.

Week 4, Feb 2

Midterm

  • Short answer
  • Not verbatim
  • Understand the concept
  • Apply the concept
  • Not handing out the slides

Planning

  • 2 min / question
  • 30-40 questions
  • Mike will send 10 example questions

Some basics

  • Criminal
    • Law
  • Civil trial
    • Facts
  • Appeal
    • Misapplication of law

Chaplinsky v. New Hampshire (1942)

Rochester, NH

  • 1941, U.S. is at war following Pearl Harbor
    • Reluctant entry
    • Germany under fascist rule is invading
  • New Hampshire was once part of New York

Chaplinsky speaking on a soapbox

  • Approached by a city official and cursed him out
    • Called him a "fascist" and a "racketeer"
    • Said that the whole government of Rochester was fascist
"Chapter 378, Section 2, of the Public Laws of New Hampshire: 'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.'"
  • No mention of context

Can the elected officials make this law?

  • City council makes name calling illegal

Arrested and found guilty

  • "Fighting words"
    • Eliciting emotional response
    • Personal ad hominem attack
  • Chaplinsky argues that convinction was unconstitutional

Terminiello v. Chicago (1942)

Chicago, 1947

  • Terminiello a Catholic priest en route to being defrocked
  • Accusations regarding communism
  • Including ethnic slurs regarding Jews
    • Distinction between "American Jews" and those he associates with Communism
  • Ad hominem attacks, "slimy scum"
  • Political rally out of control, rioting outside

Arrest based on a statute re: breach of piece

  • $100 fine
  • No doubt that he whipped up the crowd and started the riot
  • Why is someone taking the appeal?
  • Why did SCOTUS care about city ordinance in Chicago?

Procedure

  • Should not be able to take up a new issue in appeal that was not raised in the original case
  • In this case, 1st amendment was not part of the original opinion
  • Justice Douglas' opinion doesn't send much time on the facts
  • An example of an "activist" judiciary
    • "Judge has an opinion ... seeking a case to fit"

Implications of this case

  • Can the behavior of a group protesting outside a meeting limit the speech of the people on the inside?
  • Douglas says no

Fighting words

Chaplinsky (1942)

  • Two levels of speech
    • Low value speech
    • High value speech

Fighting words

  • Inflict injury
    • How is this assessed?
    • Calling someone a Nazi?
  • Incide immediate breach of the peace
    • Only able to determine this in retrospect
    • How do speakers decide how to act?

Terminiello (1949)

  • Douglas on First Amendment, designed to "invite dispute"
    • To induce a "condition of unrest"

Government can't stop speech if

  • Identity is primary factor inciting violence or
  • Imminent lawless behavior can be suppressed lawfully (e.g. police)

First amendment

Exceptions (the story so far...)

  • Obscenity (Miller)
  • Designed to promot imminent lawlessness (Schenck/Brandenberg)
  • Threats (More to come...)
  • Fighting words (Chaplinsky/Terminiello)

Week 5, Feb 9

Julien talking about Hate speech

  • In US
  • In Europe
  • Implications of transmission across national boundaries

Skokie

Despite its fame, SCOTUS never took up Skokie

  • Never taken because it is an "easy case"

Context

American Neo-Nazi party wishes to hold rally

  • Chicago tries various civic procedures to block them
  • Nazis decide to march on Skokie because it is a community with a very large number of Holocaust survivors

(Julien shows scenes from Skokie.)

Skokie / Civil rights comparison

  • Nazis were choosing a community in which their speech would cause great unrest
  • Civil rights marches on Alabama were opposedi because of similar reason

Skokie ordinances in response

  • Requires permit for 50+ ppl
  • Bans "political organizations" from demonstrating in "military style" uniforms
  • Bans display of "symbols offensive to the community", distribution of literature that ascribes a "lack of virtue" to racially or ethnically identifiable groups

Using Skokie as review

Chaplinsky, "fighting words"

  • "words which [...] tend to incite immediate breach of the peace"
  • fact: Chaplinsky says, "god damned racketeer and a damned fascist"
  • Do the Nazis' plans constitute speech?
    • Symbolic speech, clothing?

Brandenburg, incitement

  • Two pronged:
    • "Advocacy is directed to inciting or producing imminent lawless action"
    • "Advocacy is likely to incite or produce such action"
  • Nazis advocate erradication of Jews
    • Likely outcome is not erradication of Jews
    • Likely outcome is them being beaten by angry mob
  • What is the meaning of "imminent"?
    • Must it be this moment?
    • Next week?
    • Whenever a particular event occurs?
  • What if the citizens of Skokie offered a permit to Nazis with the explicit purpose of ambushing them?
    • Would this be "imminent"?
  • With the passage of time, listeners to speech can change their minds?
    • The actions in the future date are a different crime
    • The speech could not be punished

Terminiello, "heckler's veto"

  • More work on Chaplinsky "fighting words"
  • Free speech is often characterised by "a condition of unrest", "create dissatisfaction"
    • This should not be limited

Miller, obscenity

  • Some people start to say that Nazis are "obscene"
  • But in Miller, it must appeal only to the "prurient interest"
  • Hate speech is political
    • Political speech is not obscene
    • Hate speech is not obscene

Harm?

  • The people of Skokie can avoid the speech by staying in their homes
    • Is this a kind of "harm"?
    • Psychological pain?
  • Re: Cohen: "Freedom does not come without cost."
    • No balance between free speech and psychological harm

Privacy?

Is a march through the street or in a park an invasion of privacy?

  • No because the law does not aim to insulate citizens from speech they dislike
  • This is unique to the U.S.

Comparative method

Comparing policy from different systems

  • At USC, Poli Sci 120 is a comparison of differing political systems

French law provides a model for much of the rest of the world

  • Save for Communist, Anglo-Saxon derived nations

In France

"Any citizen may [...] speak, write, publish freely except, what is tantamount to the abuse of this liberty in the cases determined by law."
  • Gives legislators the power to forbid certain types of speech
    • "the Law has the right to forbid [...] those actions that are injurious to society"
1881 Law of the Freedom of the Pres

Codified in French criminal code, Code Pénal

  • Criminal law
  • Speech and press are free
    • except + 30 pages of exceptions that are considered "injurious to society"
    • Hate speech
    • Criminal libel
      • Libel is difficult tort in the US so "libel tourism" is when people sue publishers in England or elsewhere
    • Insulting the president
    • English language
      • Restrictions on broadcast
      • Quantifying the number of French language songs
      • DJs and hosts on TV and radio must be in French
      • Must not use English words when a French word is available
    • Presenting drugs in a favorable light
    • etc.

Government making laws that are appropriate for the people being governed

  • Characteristic of popular, common governments
  • Paternalistic? Yes.
  • In representative democracy, citizens trust their elected officials to legislate appropriately
  • But it does NOT inspire, enable lively debate.
    • Characteristic of U.S.

U.S. Constitutional basis of free speech

"Congress shall make no law..."
Popular sovereignty
  • Self-government
  • People rule via representative actors
  • State should not intervene on the thoughts of the people
  • The people do not endanger the state
    • Though they may endanger certain structures and institutions of the state
  • In free speech, government protects speech
  • People decide what they will accept, reject
  • (Julien shows Nazi demo scene from Blues Brothers)
Slippery slope
  • Do we allow legislators determine "reasonable" restriction? (As in France)
  • No because what motivates their determination?
  • What if government actors find different "reasonable"-ness from citizens?
  • If government is enabled to restrict speech in one case
    • What stops them from willy-nilly restricting?
Marketplace of ideas

Letter of support to Neier of ACLU,

  • "I love free speech more than I detest Nazis"

Aryeh Neier, Defending my enemy: American nazis, the skokie case, and the risks of freedom.

  • Protecting hate speech
  • Neier escaped from Germany in 1930s, lost family to Holocaust
  • ACLU lost half of its membership during Skokie
  • Free speech is best strategy for preventing repetition of Fascism
    • Open expression, robust public discourse is the best place to challenge evil
    • Similar assumption to capitalism: marketplace of ideas is self-regulating
    • Truth emerges because "men are intelligent beings"
  • Let Nazis speak in order to defeat them
  • Enlightenment principle

St. Agustin in Dark Ages

  • If Devil has ability to corrupt people rhetorically, persuade them to corruption
  • Shouldn't God also be able to persuade people of righteousness with a righteous rhetoric?

Yahoo

Context: social, historical

  • Silicon Valley in 2000, dotcom
  • Will this French complaint get a fair hearing in SF?

Context: computer networks

Pervasive internet, today

  • Leads to assumption of decentralization

Centralized networks

  • Minitel, French, 1981
  • David Cole, S.F. Examiner
    • Electronic Examiner

Network architecture reflects political architecture

  • Thus, Minitel is centralized to enable govt approval/censorship
    • "Chilling effects" on network speech
    • "Unwanted consequences"

Transnational networks

  • "The Net interprets censorship as damage and routes around it." - John Gilmore
  • Censorship shortcircuited by architecture
  • Of course, government filtering censorship is also flexible and developed its own new technologies

CompuServe, 1995

Neo-Nazi speech prohibited in Germany

  • CompuServe representative in DE arrested and imprisoned
  • Despite the fact that the servers containing Neo-Nazi speech were located in US
  • U.S. speech was limited by the prohibition in Germany

"Le Grand Secret", 1996

  • President in 1981 learns that he has cancer and has short life expentancy
  • Tells no one and runs for 2nd term in 1988
  • Post-humously, the doctor writes book about the presidents' lie
  • French government bans the book
  • Citizen scans the book and puts it online
  • French government forces him to take it down by confiscating his computers
  • However, French grad student at MIT is mirroring the scanned book

Yahoo facts

  • French law prohibits sale of nazi objects and offense against "collective memory" of a country affected by Nazis
    • Actions injurious to the society
  • Yahoo.com is located in US
    • Nazi objects available
  • Yahoo.fr is a French portal
    • No Nazi objects available
  • All servers are located in California

However, hyperlinks between .fr and .com enable French users to access the Nazi memoribilia.

  • French judge demands Yahoo take down links to Nazi material
  • And that .fr should have banners warning users that .com might lead to illegal material
  • French court is making demands of servers located in California

Reception criteria

Conflicts of Jurisdiction, conflicts of law

  • Do French laws apply in California?
    • When network connects across borders?
  • French court creates "reception criteria"
    • French law applies when the speech is receieved in France
    • This makes more sense in context of non-networked communications
    • Does tech change require a policy change?
  • French courts have heard cases involving people living and working elsewhere based on the reception criterion

U.S. could determine that free reception is a component of free speech

  • This does not mean that France must respect the same

U.S. Courts handling foreign rulings

  • U.S. court will uphold, enforce French judgements
  • As long as they do not "offend" the rights of the U.S.

Chilling effects?

Speech in US will be chilled

  • Can't anticipate which speech will be received in France, potentially anything

Is French speech chilled?

  • What is limit of this standard?
  • French speakers might worry that their speech will be received in even more restrictive locales

Role of intent?

Does it matter if the US speakers did not intend for French audiences to hear it?

Why wouldn't French govt implement filtering tools?

Not a reasonable solution because of its effect on commerce

Information imperialism

Effect of information policy on foreign policy

  • We broadcast radio into Cuba
  • Now we support our companies' activities that spread information into other countries

Other governments want to rule in a way that protects their societies

  • Some of them want to isolate themselves
  • They want paternal governments
  • American model suggests mistrust in the government
  • Undermines these other regimes

Midterm notes

  • Starts 6:30 pm
  • 90 minutes
  • Short answers

Feb 23

Planned Parenthood

  • Lindsey, Elana, Kimberly

Deadly Dozen poster

  • List of abortion doctors
    • 5000$ reward for anyone who could stop their practice
  • Is this a threat?
  • Compare to everyday threat, coersion
  • Can poster be a threat alone?
  • Does the text of the poster suggest violence?

Nuremburg Files website

  • Modeled on post-WWII war crimes trials
  • Also lists doctors' names, personal information
    • Names of doctors who have been murdered are struck out
  • Does this constitute a threat?
  • Temporal context: challenge to acquiring personal information?
    • Expectation of privacy? Telephone number appearing on a website

True threat?

"A reasonable person would first see that the statement would be interpreted as a threat to those whom the maker communicated ... "
  • Not interested in intent
  • Do you have to have the ability to follow through?
  • Sensitivity of the victim?
    • Are some victims oversensitive?
  • Need to look at totality of the circumstances
  • Words are not threatening but
    • Look to what a reasonable person might do
    • They would be threatened

Why did they seek "re-hearing en banc"?

  • "Crappy lawyering?"
  • They lost at the appeal, would have to go to SCOTUS and it is very unlikely
  • Seeking "re-hearing en banc" is almost never granted
  • Justices on 9th Circuit won't want to gather and hear the appeal
  • But the 9th Circuit has very liberal reputation and history of supporting abortion rights
    • Likely would not be granted today (2010) nor on any other issue

Previous cases

Brandenburg
  • Imminent lawless action
  • Likelihood
Watt
  • Attending a protest in DC
  • [If I get drafted, I'll turn my gun on the President]
  • Conditional
  • The audience laughs
  • Ends up going to jail (instead of being drafted)
PFC Roy
  • Drinking with compadres in barracks
  • Picks up phone and tells the operator that if the president comes on the base, he should look out, hangs up
  • Few minutes later, picks up phone and tells the operator, "just kidding", hangs up
  • Marines come and arrest him
  • Turns out that the Prez was going to visit the base the next day
  • Victim had to change behavior (alter path of the motorcade)
  • Why didn't the drunkeness or the "just kidding" relieve him?
  • Intent does not matter
US v. Orozco-Santillan (1990)
  • Orozco arrested in MacArthur park
  • While handcuffed says, "i'll kick your fucking ass"
  • Later, makes threatening phone call to police
Lovell v. Poway (1996)
  • 9th Circuit
  • Senior in HS doesn't get schedule she wants
  • Student, upset, "I could just shoot someone"
  • Immediately apologizes
  • 4pm in the afternoon, tells principal
  • Student is suspended from school
  • Court says: yes, true threat.

FACE Act

  • Protecting patrons of clinics from being barred entry

Why is this lawsuit in Oregon?

  • Is it because there is a more liberal court/jury pool/population?
  • Expectation that they will have a favorable result in Oregon?

Facts of the case

  • When did events occur? 1998.
  • Awards? $108m punitive damages. Is this a realistic number?
    • Unappealable because you can't get a bond for that sum
      • "Insufficient bonding capacity"
    • "Sending a message to the defendant"

What is at true threat?

  • Expression of intention to inflect evil, injury, or damage (Orozco)
  • Neither intent nor ability to follow through matter
  • Context is critical. Reasonable person would foresee the threat interpreted as serious expression of intent to harm by the targetted person

Ward v. Rock Against Racism

= Is this censorship?

  • Content neutral
  • Narrowly taylored
  • Meets substantial government interest

Bethel

What is the test for free speech in a public school?

  • Balancing students' right to speech against
  • Society's interest in teaching the bounds of socially appropriate behavior

2 Mar,

Compton Cookout discussion

O'Brien

Context

  • Post-Kennedy assassination
  • Vietnam war
  • Draft

When is starting a fire a speech act?

Burning the draft card

  • Combination of speech act and "conduct"

Why does the gov't care about the selective service card?

  • System exists to facilitate quickly raising an army
  • Pre-computer databases
  • Highly annoying bureaucratic process

Are you going to go to jail if your card is destroyed in the wash?

  • Why does it matter if someone destroys their card?
  • Is it simply about frustrating the bureaucracy?
  • What is the compelling governmental interest?

Neutral limitation on speech

Content neutral approach to analyzing symbolic speech

  • Is this a "useful distinction"?
  • If the law exists for sole purpose of restricting a specific type of content, is it possibly content neutral?
    • It is not and "should not be upheld"

Cohen

  • "Fuck the draft" jacket in the courthouse
  • California, 1971

re: Terminiello

  • What if the jacket makes people freak out and starts a riot?
  • Heckler's veto says that this is not grounds for restriction

"Four-letter words"

  • re: Chaplinsky
  • Is vulgarity less worthy of protection?
  • Can gov't outlaw "offensive" words?
    • They are always changing!

Can't people just turn away? Close their eyes?

  • Pacifica said changing the channel wasn't good enough, damage was done
    • "You can't unring the bell"
  • What if there were children in the courthouse?
    • Should I be forced to avert my eyes?
  • I can "look the other way" when I see obscenity and threat, too
    • Is the court being disingenuous? Inconsistent?

Is wearing a shirt similar to "broadcast"?

  • Can it be regulated similarly?

Who would be unhappy about this result?

  • The minority viewpoint can intrude into our consciousnesses whether we want it to or not
  • Does this mean that disruptive behavior is permissable anywhere?
    • Courthouse, school, park
  • Do some people (celebs?) have greater responsibility with their speech than others?

What is the government's interest?

  • SCOTUS does not want to stop political speech without a really good reason
  • Is there a compelling governmental interest in stopping this speech?
  • Is the Justice being dishonest about the disruptive potential of Cohen's jacket?

Texas (1984)

Context

  • Reagan, Mondale debates
  • Culmination of campaign season with RNC in Dallas, TX
  • Johnson burns a flag at the conclusion of the demonstration

Convicted of flag burning

  • "Desecration" is prohibited in the state of Texas
  • Is burning a flag bad?
    • Is it a confusing symbolic act?
    • Why do demonstrators outside of the US burn flags?
  • Flag burning ceremonies as appropriate disposal (Boy Scouts)
  • Is it the "ultimate form of protest"?
    • Illegality raises the symbolic stakes?

When is flag burning expressive?

  • SCOTUS says that the flag burning was clearly political, expressive

= Do you own the flag?

  • Can you destroy a flag that you buy?
  • Can you destroy a flag that you make?
  • Can you destroy a flag that you steal?
  • Is being able to purchase a flag license to do what you wish?

What is at stake in suppressing an act?

  • Is there a substantial, compelling government interest in restricting flag burning?
  • Was there a harm in the flag burning?
  • Does Texas have a state interest in preventing desecration of the venerable objects?
    • SCOTUS says that Texas can't restrict flag burning because it doesn't have enough of an interest

Breach of the peace inspired by flag burning?

  • Heckler's veto again

9 Mar 2010, Libel

  • Review of exceptions

SCampus

  • Vague guidelines in section H.
  • University "giving with one hand, taking with the other"
  • In practice, "free speech zone", permitting

Defamation overview

  • Defamation: a false statement of fact which injures a person's reputation
  • Libel, written word
  • Slander, spoken

Elements of defamation

  • Statement of fact
  • Injurious to reputation (or business)
  • Of and concerning the plaintiff (r plaintiff's biz)
  • Falsity
  • Publication
    • It's been repeated, told to someone else
    • Doesn't need to be literally published as in the case of newspaper or broadcast
  • Injury (to person, to business)
  • Fault

Risks of of bringing a libel suit

  • The accuser will have his reputation evaluated in grave detail
  • Embarassing
  • Worse damage to reputation to endure the suit as opposed to the original defamation

Statement of fact

  • Precision
  • Verifiability
  • Context favors inference of factual content
  • Where issues arise of what the statement means, the courts use a reasonable person standard for meaning

Injurious to reputation

  • Personal: the statement must be one that would, in the eyes of a respectable group of people, be injurious to the reputation of the plaintiff
  • Business: the statement must be one that would lead a group of respectable people not to do business with the plaintiff

Of and concerning plaintiff

  • A reasonable person would believe the statement was about the plaintiff or plaintiff's business
  • In most jurisdictions, the plaintiff must be alive; you cannot defame a dead person.

Falsity

  • The statement must be untrue, or readily proven untrue
  • Cannot be a statement of "opinion"
    • Not enough to simply say, "imho"
    • "Reasonable person" standard

Publication

  • The statement must be published to at least one third party
  • The audience must understand the statement
  • But need to understood it as defamatory
  • Relevance to the web: statements made in a chat/board that do not effect the popular audience may still defame
    • Another person may come by that IS offended

Fault

  • Public figure: requires malice (intent to injure)
  • Limited purpose public figure: something less than malice
  • Private person:

Vicarious (3rd party) liability

  • Courts used to rely on distinction between publisher/distributor
    • Distributors have no editorial influence
  • Strict liability for publishers
    • "Knew or should have known" liability for distributors

Libel per se

  • General rule for defamation

New York Times v Sullivan

Malice?

  • With knowledge of its falsity
  • Mental state of the speaker
  • Intent, consciously
    • We don't punish for negligence

Advertising

  • Why do we care about an advertisement?

Strict liability

  • You do not require any mental state to impose liability

Public official

  • Sullivan is in the public limelight because of his job
    • Incidental, not his choice to be public

Gertz

Public figure

  • How to distinguish from a public official?
  • How well can the figure defend himself?
    • Why is/isn't Gertz a public figure?
  • Gertz is in the public limelight because of his job, too
    • But the terms of his defamation is unrelated to his professional work
  • Involuntary public figure
  • Limited-purpose public figure
    • Public for a single issue

Self-help

  • First line of defense, rebutt the charges
  • How does digital media impact this?
  • Simple rebuttal access was not good enough
  • Private individuals should not have to have a thick skin
    • Where do we draw the line?

Is a lie not worthy of protection?

Lies have a social utility

  • "Artists use lies to tell the truth. Politicians tell lies to cover it up.", V for Vendetta
  • Hyperbole, a lie worthy of protection

Is there such a thing as a "truly private person" in 2010?

  • Gertz is a "private person"
  • Overing: no private person because everyone gets involved in a context on some level
    • If he writes a blog about me, i become an involuntary public person
    • Should we be able to do that? To make me a public person?
    • We all have access to media, weblogs
    • Also gives me a new avenue to speech
  • "Notion of being private is a fiction"

Public figures have "general fame"

  • (aot) limited public figures who have fame for "just one issue"

Defamation not protected by First Amendment

  • Public figures require proof of "actual malice" per Sullivan
  • States must define scienter for Limited Purpose Public Figures and Involuntary Public Figures and private individuals. Requires "malice." (i.e. Gertz)
  • Generally these concepts are put on a sliding scale, where the standard of proof for a private individual as to falsity is quite low; involuntary figures next; limited purpose public figures next; and the highest standard for public figures.

Mar 23, Privacy

Florida Star v. B.J.F.

  • Press puts full name of rape victim in the blotter
    • Opinion does not include full name, ironic?
  • How large is Florida Star?
  • Is Jacksonville a large city?
  • Is publicizing violent crime in the community interest?
    • Does the victim's privacy trump the community interest?
    • Is it necessary to know the victim's full name? Why not abstract it?
    • Instead of saying the name, why not say "a woman..."?

Was there wrong-doing? Where?

  • Was it wrong for Florida Star to obtain the name?
  • Or was it wrong for Florida Star to disclose the name?
    • Who is at fault? The trainee? The city desk editor?
  • Clearly the police department was in error and run sloppily
    • But they are not at play because they settled with the victim for only 2500$
  • Was the name public info once it appeared in the press room?
  • Did the press obtain the information lawfully?
  • If the police were sloppy, is it lawful to take advantage?
    • In Marshall's opinion, the press room is unregulated. Anything in there is legally available?
    • But in dissenting opinion, the legality of obtaining the information is called into question. There were signs!

Hypothetical disclosure

  • A tenant is murdered
  • The landlord hasn't heard from the person in weeks, rent is due
  • Landlord calls the cops
  • Should the cops disclose her condition (dead)
  • What if she is in the hospital receiving counseling?
  • Is there anyone who may be disclosed to? Family member/ husband?
    • Must it be in person? Must they present ID?

Chilling effect on press?

  • Is it chilling the freedom of the press to hold the reporter responsible?
  • Or is it emphasizing the disciplinary demands? Press ethics?
    • Is there a sphere of privacy that news-gatherers should not enter?
    • Is it lawful for a reporter to lie to a homeowner to gain access?

Precedent

  • Cox Broadcasting

Socratic outline

  • Was the information lawfully obtained?
  • Is it of public significance? Newsworthy?
  • Is it publicly available?
  • Chilling effects/ self-censorship
  • What does "legally obtained" mean?
  • Is there a sphere of privacy that newsgatherers should not enter?
  • Has the plaintiff consented to the release of the information?
  • Does it matter that this is a rape case? What about release of DUI?

Concerns about hiding name of the victim

  • Justification for hiding the info?
    • Privacy
    • Danger of retaliation
  • Can we trust the gov't/police with private info?
    • What if police fabricate an affadavit or a confession?
  • What about sex offender registry?
    • Interactive maps
    • Effect of widespread data processing and communication?
    • Is protecting the victim a more righteous act than the perpetrator?
  • Victim is unwilling participant
    • Deserving of more protection?
    • Even if they initiate a call to the police?
    • Are they consenting to the beginning of a documentation process?
  • Consider investigative reporting on the topic of a crime wave
    • Should the news media have access to the details of the case?
  • Expectation of privacy with regard to the police?
  • Is there privacy in 2010?
    • Widespread surveillance
  • Locus of tension may not be privacy but disclosure

Privacy exceptions

  • Lawfully obtained truthful information of public significance cannot be suppressed absent a state interest of the highest order. (Florida Star)

What is a state interest of the highest order?

  • National security?
    • President might argue for and a judge will scrutinize

Four main types of privacy torts

  • Intrusion upon a person's solitude of seclusion
    • Homes, highest protection
    • Photos, audio, recording, may be punishable offenses
  • Right of publicity
    • Misappropriation of a person's name, image, voice, likeness
  • Publication of private facts
    • Personal matters, etails about sex life, hygiene, medical conditions, etc.
    • Newsworthiness of information is irrelevant if "highly offensive details" that are not of a legitimate concern to the public
  • False light publicity ("I have a right to my story")
    • Fabrication, inventing quotes, fictionalizing actual events
    • Photographs taken out of context

Considerations

  • Was document legally obtained?
  • Is the reporter in a "sphere of privacy" (where the person expects privacy, i.e. home)?
  • Was conduct in public, outside expectation of privacy?
  • Has reporter been too intrusive? Stalking?
  • Has the rporter violated a law? Wiretap?
  • Has there been consent?

Application

  • Inadvertent disclosure of child abuse suspect's name?
  • Inadvertent disclosure of name change?
  • Publication of witness' statement following crime?
  • Publication of name of person who left drug treatment facility?
  • Publication of name and medical condition, where reporter overheard both as he did ride-along with EMTs to accident site?
  • Publication of details regarding an auto accident obtained by listening to police radio?

Rape shield law

  • Deployed state-by-state, no federal law
  • Narrowly applied?
  • Name is obscured to prevent humiliation, unwanted attention

Copwatch?

  • Is it legal for a cop to tell you to stop recording them while they are pulling you over?
  • If so, is it legal for a cop to record you with the dash camera without your prior consent?

Review for exam

  • True threats
    • Expression of intent to inflict damage (Orozco)
    • Neither intent nor ability are considered
    • Reasonable person test (Planned parenthood III)
  • H.S. students' rights, limited by society's rights to inculcate students w proper civic values and behaviors
  • Time, place, and manner restrictions are permitted, where (Rock against racism)
    • Content neutral
    • Substantial govt interest
    • Not unreasonable restriction on alternative means of expression (least restrictive not required)
  • Symbolic speech
    • Not protected where "nonspeech" aspects are sufficiently important to govt, restriction is narrow means to achieve the purpose
    • Display of offensive words alone are protected, unless gobt can show compelling reason for prohibition
    • Offensive behavior (flag burning) protected unless govt can show important governmental interest in prohibiting the act
  • Campus speech
    • USC supports campus speech as long as it doesn't disrupt "regular and essential operations and activities" of the university
  • Defamation, a false statement of fact
    • Actual malice (Sullivan)
    • State must define scienter for limited purpose public figure and involuntary public figures and private individuals (Gertz)
    • Standards of proof are hierarchical, low for private individuals to very high for public figures
  • Privacy
    • Lawfully obtained truthful information of public significance cannot be suppressed absent a state interest of the highest order. (Florida Star)

Apr 6, Indecency

  • Opening up with George Carlin's "7 dirty words"

Indecency on broadcast

  • FCC permits indecency between 10pm-6am
    • "Safe harbor"
    • Presumably children will be asleep during those hours
    • Time, place, & manner restriction on content
  • What if KROQ plays an indecent song at 9:50pm?
    • FCC issues $1000 fine
    • "Slippery slope"

Pacifica

  • Pacifica broadcasts George Carlin's "7 dirty words" in the afternoon
    • Father and 17 year old son listening to radio in the car
  • Can't you change the channel?
  • What if there aren't parents/adults nearby?

CBS v FCC (Janet wardrobe malfunction)

  • Superbowl halftime show
  • FCC argues that CBS is responsible for the material it broadcasts
    • 5 second delay
    • CBS said that they weren't technically capable of avoiding the indeceny
  • CBS argues that FCC regulates "speech" but not images
  • Historically, FCC allowed for "fleeting" images

5 sec delay

  • Is this sufficient?
  • Should there be a longer delay? 15-20 sec?
    • Is it no longer "live"? Out of sync with radio, twitter.
    • Continuity is lost
  • At what point is the threat of a fine strong enough to balance out the competitive loss of a lengthy delay?

Fleeting

  • Would not enforce deceny rules against "fleeting" indecency
  • What constitutes "fleeting"? By which measure?
  • "9/16th of a sec" = duration of time that Janet's breast was partially exposed
    • CBS wins, they didn't know it was going to happen

Body parts

  • Did CBS, Janet, or Justin expect the scandal?
  • If fleeting indeceny is OK, would it matter if this were her genitals and not breast?
    • What if it were Janet revealing Justin's penis?
    • Is there a double-standard?
    • Tendency to expose men's bodies rather than women's bodies
  • Would the kids have freaked out if the parents hadn't freaked out?

Consensus on "indecency"?

  • Is a breast indecent?
  • Pubic hair?
  • Genitals? Male, female?

Due process rights of CBS

  • Court focuses on this point
  • FCC planned to start enforcing a policy over which it was previously lax
  • FCC must give them time to develop and deploy the 5-sec delay technology

Respondiat superior

  • Holding someone in charge responsible for the actions of another person
  • Janet, Justin were hired by CBS to perform

Independent contractor

  • CBS argues that J + J were "independent contractors"
    • MTV produced the performance
  • Not employees
  • California labor law almost always finds that i.c.'s are (legally) employees
  • What distinguishes employees from ICs?
  • In many states, employers are still liable for ICs
    • Court is taking up a minority view among states

Is CBS responsible for everything it broadcasts?

  • Why should it self-censor?
  • It is licensed by the federal gov't

First Amendment right to indecency

  • Less valuable speech than political, critical
  • Which is why FCC will push it into a safe harbor
  • NOT without protection (like obscenity)

Olivia N

  • Born Innocent (1974), film
    • 1974, broadcast TV
    • Rape scene omitted from later broadcasts
    • Video on YouTube is labeled as "brutal rape scene"

Facts

  • Olivia is a 7-year old
  • She is raped with a bottle
  • Violators imitating the scene from Born
  • Plaintiff sues NBC for broadcasting the film
    • Seeking monetary damages

NBC

  • Judge watches the scene in his chambers
  • Judges come out of chambers, decides the film is not obscene
  • NBC could have moved to dismiss but did not bring a motion
    • "Lawyerly mistake"
    • Confident that he was going to win, he didn't bring the motion

Olivia appeals

  • Court of Appeals determines that the trial was not proper
  • Demands a re-trial
  • Olivia's mother demanded a jury trial

Olivia II

  • In opening statement, Olivia lawyer addresses the jury
    • Says that he can prove that NBC is negligent in broadcasting the material
    • But says that he can't prove incitement

Non-suit

  • Result: non-suit, a case that is incapable of proof
  • Defense says that "negligence" is "not the standard"
    • Brandenburg is the standard for incitement
    • Judge agrees
  • Was this the lawyers mistake?

Incitement

  • Was incitement the appropriate standard to apply?
  • Would negligence produce too many instances of liability?
    • Slippery slope

Negligence in other cases

Numerous examples of cases in which lawsuits alledge negligence on behalf of broadcasters, filmmakers

  • Young people who commit violent acts blame the negligence of the producers for des-sensitizing them

Other cases start moving toward "instructions"

  • Hustler article about auto-erotic asphyxiation
  • Kid fills balloon with BBs, blinds himself
  • Secret admirer Jenny Jones, surprised guest later shoots the admirer to death
    • Court initially found on the part of the family
    • Appeal court looked what the show might have known about the violent possibilities of their activities

Can we (intellectually) distinguish these cases?

  • Can we create a standard?
  • Do we really want the government to determine which types of entertainment media can be produced?
    • Who are the gatekeepers?

What category of speech is at stake?

  • Is Olivia an incitement case?
  • Or is it a case about indecency?
    • Might Olivia have had a better chance of winning?
  • This (and other cases) have a tendency to slide from indecency toward incitement
    • Because of the violent acts

Apr 13, Scarcity

Indecent speech exceptions

Indecent speech can be regulated (t, p, m) and punished if ===

  • Material depicts / excr organs
  • Patently offensive, community stds
  • Used to titillate, shock
  • More than fleeting
  • Occuring outside of "safe harbor" (10p- 6a)
  • Graphic violence loses 1st amendment protection only when there is incitement (i.e. the intent to produce imminent lawless action.)
    • Note: combines speech, non-speech

FCC overview

Independent agency

  • Created, empowered by Congress
    • Trying to avoid chaos of unregulated radio, avoid interference
    • Scope of authority determined by statute
    • Communications Act of 1934
      • Part of the New Deal
    • Telecommunications Act of 1996
  • Part of the Executive Branch
    • Appointed and removable by President
    • Constitutional Separation of Powers issue
    • Commissioners are "independent" because can't be removed by the Pres
      • Overlapping 5-year terms

The Commission

  • 5 Commissioners (Pres appoints/ Senate confirms)
    • Max 3 from same political party
    • Mostly (non-tech) lawyers
    • No financial interest in FCC biz
  • Bureaus (6 subdivs)
  • Staff Offices (10)
  • Regulates: tv, radio, wire, satellite, and cable
    • Note: no express authority over cable until late 60s

The purpose

Broadcast
  • Designate, allocate freqs
    • Competitive procedure
  • Assign licenses
  • Transfer, renewal
  • Public Interest obligations of licensees
    • FM band is a scarce resource
    • Broadcasters should be in voluntary compliance
  • Tech adoption/forcing
    • Forced adoption of digital TV

The functions

  • Quasi-legislative
    • Promulgate rules & regulations
      • Notice of inquiry, otice of proposed rulemaking
      • Solicitation of public comments
      • Report and order
  • Administrative
    • Enforce and administer those rules
  • Quasi-judicial
    • Adjudicate disputes
    • Adminsitrative law judges
    • Appeal to commission

Rulemaking

  • Notice of inquiry
    • Raises issues to be address and seeks comment (usually w/o specific rule in mind)
      • Solicit comments from industry & public
      • Workshops (by and for FCC)
  • Notice of proposed rulemaking
    • By commission or (private) petition
      • Seeks comments on specific proposed reg
    • FNPRM

Adjudication

  • Typically involves single entity
    • Rather than set broad rule
      • But single adjudiation can have broad impact
  • Licensing
    • Assignment by competitive hearing
    • Revocation and renewal
    • Transfer of license
      • Action
    • Decision
      • Litigation and hearings division

Complaints

  • Email
  • Internet
  • Mail
  • Telephone
    • Describe w particularity your grievance
    • Steps you took to resolve the complaint
    • Resolution you are seeking

Judicial review

  • All functions/actions of the FCC are reviewable
    • Mostly by Court of Appeals for DC
    • Standard of Review depends on nature of action
      • Legislative
        • Findings of fact
          • Arbitrary, capricious, abuse of discretion?
          • Deference to superior technical expertise of agency on factual issues
        • Conclusions of law
          • Chevron test
      • Adjudicative
        • Substantial evidence test

Red Lion

Fairness doctrine

  • Radio is limited resource controlled by gov't
  • Fairness in this case means that both sides of an issue be given an opportunity to be heard
  • Chilling effect?
    • Danger of complaint based on not showing "all sides" of an issue

Tornillo v Miami Herald

  • Miami Herald prints negative op ed about a candidate
  • Newspaper refuses to print his replies
    • Said it was violation of First Amendment
  • Is the newspaper and the radio "truly different"?
    • How many people heard the broadcast in Red Lion?
    • Is the newspaper "scarce"?
  • The Herald's 150,000 circulation means that starting a competing paper is steep
    • Newspaper coverage in Miami is thus scarce

More on fairness

  • If you run a political blog
  • Why shouldn't you be allowed to let people with opposing viewpoints post to your blog
  • Forced speech
  • Is more debate better than less debate? Always?
  • Gov't via FCC has decided that scarcity of airwaves is sufficient cause to intervene in speech/debate

Net neutrality

  • Definitions
  • All packets are treated equally
  • Like content must be treated alike at the same speed over the network. Owners of wires cannot discriminate. (Lessig & McChesney, 2006)
  • Commitment to ensuring that ISPs treat all content and applications equally with no privileges, degrading service or prioritization based on the content's source, ownership or destination (Geist)

Background

  • Neutrality predates the net, based on telecoms:
    • No one is refused service, all calls are connected regardless of content or location
  • Different is Common Carriage law (47 USC 202):
    • "It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices or services"
  • 1990s, most ppl using dialup
  • 2000s, more ppl on broadband
  • 2002, FCC says cable ISPs not subject to strong common carrier regulation
  • 2005, FCC deregulates broadband, treating telecoms and cable ISPs the same, removes common carrier language for Internet, and issues "Broadband Access to the Internet" priciples
    • "Sea change" in the way that FCC is dealing w internet
    • Reclassification of broadband, "nondiscrimination" did not apply (Epps, 2005)
    • But (Epps, 2005)

Players

Supporters:

  • Consumers
  • First Amendment groups
  • Content distributors
  • Edu community

Opposition?

  • Service providers who stand to benefit from exploiting new network architectures

Architecture

  • Relationship between ISPs was not related to monetary exchange
  • Now, we might have tiered pricing among ISPs

Reasons for

  • End users lose control
  • Control moves from edge to core network functions
  • Evolving vertical market issues:
    • Content/access/distribution = no competition

Comcast v FCC

  • Comcast interrupts bittorrent traffic
  • Comcast determines that bt is not welcome on its network
    • If you "speak" via BT, they are regulating yr speech
  • Comcast reserves right to do this in their Terms of Use / Service
    • But is this ethical?
  • User expects that if they initiate a transfer, it will go through

= Ancillary authority

  • Is regulating the internet ancillary to a core function of the FCC?
  • FCC argues that they do
    • MacDowell's dissent says no
  • The Court of Appeals says they do not
    • Now the FCC can do nothing about this

What's next with Net Neutrality?

  • During election, Obama was supportive of net neutrality
  • Now in office, Obama administration is being lobbied HARD and the DNC is being donated to in a big way
  • Congress refuses to legislate on net neutrality
    • Not politically WILLING because they do not want to fight the lobbyists
  • Comcast biggest fear is a legislative backlash
  • Perhaps net neutrality vaults tax reform on the Obama agenda?

Apr 20, Porn

Nazi event in DTLA

  • One group receives a permit for a protest
  • Many other groups decide to form a counter-protest
  • Violence breaks out
  • Police in difficult position of "taking sides"

Exceptions (contd)

  • FCC can reg broadcast because of scarcity
    • And, during time of Fairness doctrine: equal access/time
    • Cable by ancillary jurisdiction

McCollum (Ozzy)

  • Teen boy kills himself after listening to Ozzy all night
    • Especially "Suicide solution", bc of lyrics
  • Plaintiff argues that it is a "call to action"
  • Are song lyrics that tell you to kill yourself protected by 1st?
    • Does Ozzy have to take into consideration the possibility that listeners are unstable?
    • What if the song is very good?
  • Song or not, if you approach someone and say, "yes. you. kill yourself. tonight.", are you liable?
    • What if it is not satire?
    • What if you put out an album and your goal is to have listeners actually kill themselves?

Relationship

  • Does the intimacy matter?
  • Ozzy is remote (para-social interaction)
  • What about a sibling singing the same song?

St. Louis fake MySpace boyfriend

  • Weird adult creates fake MySpace boy to have online relationship with girl in her neighborhood
    • She "breaks up" with her and tells her "the world would be better off with out you", girl commits suicide
  • How does case this relate?
  • Is the mother liable?

Unique medium

  • Do you have the right to do something via tech that you can't do IRL?

Imminent lawless action

  • You must show a strong connection between
    • ...what it is that they do, and
    • ...what is is that you encourage them to do.
  • Intent does not matter

Sable

  • Dial-a-porn made illegal by a 1988 amendement to the Comm Act of 1934
  • Does anyone have a right to phone sex?
    • Yes, consensual
  • Why did this come to the court?
    • Children might access
    • Govt has interest in preventing children's exposure to "low value speech"

Indecent and obscene distinction

  • Obscene is never protected
  • But this amendment protected BOTH indecent and obscene
  • Phone sex can be both obscene and indecent
  • Any adult can initiate the transfer of obscene material
    • But the purveyor cannot initiate it

Protecting children

  • If we are constantly protecting children, what happens to the marketplace of ideas?
  • Is it reasonable to institute a limit on adult freedom to protect children?

What is really going on in this case?

  • Ok, it's not about the line between indecency/obscenity
    • How do you know?
  • What's the take-away? What do we learn here?
  • Different technologies demand different regulations
  • Content-based restriction on speech?
    • Yes. What kind of test must we apply?
      • Government interest
      • Least restrictive

Note about 900 numbers

  • Window on making-money from these services has passed
  • Internet undercut the market

Burstyn, sacrilege, 1952

  • Burstyn film distributor, producer
  • The Miracle (film)
  • Many letters of complaint, many letters of support
    • Many people believed it was sacrilegious
  • General opinion was that the film was sac
    • But significant numbers of people disagreed

Sacrilegious

  • Can this be defined?
  • It means different things to people of different faiths
  • Why can't we develop a test for sacrilege?
  • Should the government protect sacrilege?
    • Not all people are religious
    • Does government have compelling interest? (even if its tuff to define?)

Separation of church and state

  • Not a law
  • "Anti-establishment law"
  • Constitution says we won't establish a national religion
  • If we pass a sacrilege law, is that bridging church + state?
    • Promoting religion over non-religion
  • How could you enforce a sacrilege law?
    • Wouldn't it be paradoxical?
    • Too subjective?

What IS sacrilege? Blasphemy?

  • History, English law
  • Church of England could be damaged by sacrilege
  • Frankfurter returns to history to ask IS this blasphemy?

Can someone make an argument that sacrilege is bad and should be prevented?

  • What might that argument sound like?
  • Peace and harmony
  • Even if it's a "good" law in a local sense
    • It will be struck down b/c of 14th

Playboy, 2000

  • Playboy Entertainment Group is highly litigious
    • Protecting trademark, copyright
    • Ensuring the greatest opportunity to exploit it's IP

Children

  • Flipping through the channels, the might encounter scrambled porn

s505 Telecomm 96 limits scrambled broadcasts to safe harbor

  • Signal bleed, scrambled porn might tune in even if you don't subscribe
  • Is this reasonable?
  • Why is cable different from dial-a-porn?
  • Playboy challenged 505 because it is a "content-based" restriction
  • Should govt ask cable provider to censor Playboy during the day?
    • Is this a violation of the cable operator's rights?

V Chip

  • Govt forces the company to put a "box" between the provider and subscriber
  • Why should the cable company comply?
  • Is it violating the 1st amendment right of the cable provider?
  • The subscriber has the option to block
  • Is it censorship when the government enables the customer to filter?
  • Does the cable company have the right to "speak" in your home?
    • Is it censorship when you filter them?

s504 cable provider must scramble on home-by-home basis by request

  • Technological means to ban the content exists
  • Thus s505 is not the least-restrictive
  • But s504 was not widely marketed

Rationale

  • Parents who care will call cable co and request it
  • What if kids go to a friend's house?
  • Can't have a total ban unless it is content-neutral

Takeaway

  • Government teamed up with Playboy to tell the cable companies what they can say and do
  • What if it costs the cable company too much to implement this solution?

Hustler

  • Boy dies trying autoerotic asphyxiation after reading article in Hustler
  • Should Hustler be responsible?

Cookbook hypothetical

  • Hypothetical: cookbook has recipe with poison, someone makes the recipe, eats the food, and dies.
  • Is the author liable?
  • Is cookbook different from Hustler?
  • The reader expects that eating the food will be healthy
  • Will the adolescent Hustler reader not appreciate the fatal possibilities?

Huffing hypothetical

  • What if Hustler publishes an article explaining how huffing works?


Does Hustler have a social responsibility?

  • No because they are only for 18+?
  • Is Brandenburg the right test for a case like this?
  • Is it time for a different standard?
  • Is there a slippery slope?
  • "Freedom of speech is valuable enough to allow people to hurt themselves"

Exceptions (cont)

  • Analog cases, outliers
    • To be the cause of suicide, music must be directed toward that immediate act and likely to produce the result
    • Brandenburg reqment of incement to imminent lawless action applies to all media (incl print). More than "mere advocacy", must be "tendency"
    • Film is protected, prior restraint/review is impermissible (esp in "sacrilege")
    • Obscene can be banned (even phone porn messages), indecent cannot
    • Overly restrictive actions may jeopardize a regulatory schema, that is otherwise valid under our 1st amend analysis

Concluding thought re Exceptions

"The First Amendment itself reflects a judgement by the American people that the benefits of its restrictions on the government outweigh its costs" -- Chief Justice John Roberts in U.S. v. Stevens (April 20, 2010)
Retrieved from "http://www.kevindriscoll.org/wiki/COMM371/Class_notes"
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