DEFAMATION & FREE EXPRESSION ISSUES

1. DEFAMATION & FREE EXPRESSION ISSUES 4/23/09

2. DEFAMATION(Continued)

3. NY Times v. Sullivan (1964) HOLDINGS: The protections of the 1st (as applied to the states through the 14th amendments) apply to political messages that are published in the form of paid advertisements. REASONING SUMMARY: The 1st amendment applies to the advertisement in question because it is editorial rather than commercial in nature.

4. NY Times v. Sullivan (1964) HOLDINGS: It is a violation of the 1st (as applied to the states through the 14th amendments) to assess damages for liable against a public official for criticism of official conduct without a showing of actual malice. REASONING SUMMARY: Court imposes new "actual malice" test for cases involving "public officials" in order to promote public's interest in more "uninhibited, robust, and wide-open" debate on public issues.

5. NY Times v. Sullivan (1964) ACTUAL MALICE TEST: "Actual malice" is defined as knowledge that it was false or with reckless disregard of whether it was false or not.“ This new standard is supposed to reduce "self- censorship" caused by "overcautious" press that fears the consequences of making an honest mistake. Public officials have sufficient access to the press to be able to respond to false charges and clear the record.

6. Expansion of Application of the Actual Malice Test New York Times v. Sullivan (1964) applied "actual malice" test to government officials. Curtis Publishing Co. v. Butts (1967) applied "actual malice" test to retired football coach that was paid out of privately financed U. of Georgia athletic association. Associated Press v. Walker (1967) applied "actual malice" test to retired Army General who led anti-integration demonstrations at the University of Mississippi. Rosenbloom v. Metromedia (1971) applied "actual malice" test to individual who was arrested for possession of obscene books and magazines, because news article dealt with matter of public or general interest.

7. Retrenchment in Application of the Actual Malice Test Gertz v. Welch (1974) held a lawyer could recover libel damages for a publication related to his/her work as an attorney without having to establish "actual malice.“ Time, Inc. v. Firestone (1976) ruled that the "actual malice" standard didn't apply when a rich, socially prominent, woman sued Time for libel in a story they had done on her divorce.

8. Retrenchment in Application of the Actual Malice Test Hutchinson v. Proxmire (1979) A psychologist sued Wis. Senator William Proxmire sued Proxmire for libel after Proxmire publicly awarded him a "Golden Fleece" Award for having wasted gov. money on an experimental study of aggressive behavior in monkeys. Court ruled that recipients of federal grant funds were not "public figures.“

9. Establishing Actual Malice Associated Press v. Walker found Associated Press had not shown "actual malice" in reporting of Walker's participation in march as it was happening when the information was received from experienced, trustworthy correspondent. Curtis Publishing Co. v. Butts (1967) found SATURDAY EVENING POST had shown "actual malice" by relying on single source who they knew to have a criminal record, in situation where they had adequate time for further investigation. [Butts was accussed of having fixed football game scores]

10. POLITICAL PARODY Hustler Magazine v. Falwell (1988) FACTS: HUSTLER magazine ran "parady" advertisement, "Jerry Falwell talks about his first time," in which Falwell says his first sexual experience was a drunken incestuous rendezvous with his mother in an outhouse. Falwell sued for libel, invasion of privacy, and intentional infliction of emotional distress. HOLDING: It is a violation of the first amendment, as applied to the states through the 14th, for a state to award damages for emotional distress caused by the publication of an offensive parody.

11. FREE EXPRESSION ISSUESThe Right Not to Speak

12. Right Not to Speak or to Appear to Support Ideas you Oppose • West Virginia State Bd. of Education v. Barnette (1943) • Wooley v. Maynard (1977) • Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) • Rumsfeld v. Forum for Academic & Institutional Rights Inc. (2006)

13. West Virginia State Bd. of Education v. Barnette (1943) PRECEDENT: It is a violation of the first amendment freedom of Speech clause, as applied to the states through the 14th amendment due process clause for the government to compel people to salute or pledge allegiance to the flag.

14. West Virginia State Bd. of Education v. Barnette (1943) • Court doesn't agree with Gobitis opinion's use of Lincoln quote ("Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?"). Gov. can be strong enough without having to require school children to salute the flag. • While national unity is a legitimate gov. goal and it may be fostered by persuasion and example, but not by compulsion.

15. West Virginia State Bd. of Education v. Barnette (1943) JUSTICE JACKSON’S FAMOUS QUOTE: "To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds....If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

16. Wooley v. Maynard (1977) PRECEDENT: It is a violation of the first amendment as applied to the states through the 14th amendment due process clause for a state to punish someone for covering the state motto on their automobile license plate.

17. Hurley v. Irish-American (1995) PRECEDENT: It is a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment), for a state to require the organizers of a parade to include a unit that expresses a point of view that the organizers do not wish to promulgate. NOTE: While parade organizers couldn't prohibit an individual gay person from marching as a member of some other unit, they could prohibit a unit that was going to present a message they disagreed with.

18. Rumsfeld v. Forum for Academic & Institutional Rights Inc. (2006) PRECEDENT: It is not a violation of the first amendment for the federal government to require colleges and universities grant access to military recruiters in order to receive federal funding even when the school objects to military policies and actions. STANDARD/TEST USED: O’Brien test

19. FREE EXPRESSION ISSUESSymbolic Speech

20. Definition of Symbolic Speech These cases relate to the nature of free speech when • physical actions are combined with speech • physical actions are used to communicate ideas.

21. United States v. O'Brien (1968) FACTS: • What kind of speech was involved in this case? • What message did O’Brien want to convey? • What means did O’Brien use to convey his message?

22. United States v. O'Brien (1968) FACTS: • What message did O’Brien want to convey? • Opposition to the Vietnam War and the draft. • What means did O’Brien use to convey his message? • Burned his draft card.

23. United States v. O'Brien (1968) FACTS: • Why was the government opposed to O’Brien’s actions? • What did the government due to stop him from communicating his message by burning his draft card?

24. United States v. O'Brien (1968) • Why was the government opposed to O’Brien’s actions? • It wanted to maintain political support for the war in Vietnam. • It believed that it would be more difficult to efficiently draft men into military service if draft eligible males did not carry draft cards. • What did the government due to stop him from communicating his message by burning his draft card? • It prosecuted O'Brien and three other defendants for violations of a section of the Selective Service Act that made it illegal to "destroy or mutilate" draft cards.

25. United States v. O'Brien (1968) PRECEDENT: It is not a violation of the 1st amendment for the federal government to prohibit a person destroying or mutilating a draft card as part of an anti-war protest demonstration. REASONING: • If there is a sufficiently important governmental interest in regulating the non-speech element of symbolic speech, the government can impose incidental limitations on first amendment freedoms provided certain conditions are met.

26. O’Brien Test • What is this O’Brien test? • When does it apply? • Based on this test, what does the government have to establish in order to avoid infringing on someone’s first amendment rights?

27. O’Brien Test • The government regulation must be within constitutional powers of congress. • it must further an important or substantial government interest • It must be unrelated to the suppression of free expression, and • the incidental restriction on first amendment activities is no greater than is essential to fulfill the government's interest • Was the government’s interest in prohibiting the destruction of draft cards within the constitutional powers of congress?

28. United States v. O'Brien (1968) • Was the government’s interest in prohibiting the destruction of draft cards within the constitutional powers of congress? Congress has constitutional power to raise and support armies. It can establish a draft registration system assist in raising armies. • Did it further an important or substantial government interest?

29. United States v. O'Brien (1968) • Did it further an important or substantial government interest? Defending the country from military attack is an important government interest. • Was it unrelated to the suppression of free expression?

30. United States v. O'Brien (1968) • Was it unrelated to the suppression of free expression? Draft card mutilation law is related to the government’s interest in raising army rather than in the suppression of free speech. • Is the incidental restriction on first amendment activities no greater than is essential to fulfill the government's interest?

31. United States v. O'Brien (1968) • Is the incidental restriction on first amendment activities no greater than is essential to fulfill the government's interest? There is no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their willful mutilation or destruction.

32. United States v. O'Brien (1968) Government claimed that: • Reg. certificate served as proof the individual described is registered for the draft. • Information on the draft card facilitated communication between registrants and local draft boards. • Certificates carry continual reminders of need to notify draft board of changes of address or status. • Without the law, certificates could be altered and used for deceptive purposes. • Do you think they were valid claims?

33. Texas v. Johnson (1989) FACTS: • This is a criminal case in which Texas authorities prosecuted the defendant, Gregory Johnson, for having burned an American flag in front of the Dallas City Hall as part of a political protest against policies of the Reagan administration. • Johnson was charged with violation of a state statute which prohibited desecration of a venerated object. Johnson claimed that this statute was unconstitutional.

34. Texas v. Johnson (1989) PRECEDENT: It is a violation of the 1st amendment (as applied to the states through the 14th amendment) for a state to prohibit person from burning (or physically desecrating) an American flag when it offends onlookers or is used as a means of expressing a political viewpoint. How does the Court use the O’Brien test in arriving at this decision?

35. Texas v. Johnson (1989) REASONING SUMMARY: • Johnson's act of burning the flag constituted expressive conduct which is protected by the first amendment. • Under the O’Brien test, Texas must establish a sufficient state interest that is unrelated to the suppression of expression. • Texas failed to meet this burden.

36. Texas v. Johnson (1989) REASONING SUMMARY: • There is insufficient evidence to show a significant danger of Johnson's action resulting in a breach of the peace. • no disturbance actually took place • no reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the federal government as a direct personal insult. • The state's interest in preserving the flag as a symbol of nationhood and national unity is an interest that is related to expression, and therefore falls outside the scope of the O'Brien test.

37. Texas v. Johnson (1989) REASONING SUMMARY: • Gov. cannot prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. • W. Va. Bd. of Ed. v. Barnette holds that the government has no right "to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."