COMM LAW | Prof. Shepard
Midterm Exam Study Guide | Summer 2014

Textbook Chapters Covered:

• 1: The American Legal System
• 2: The Legacy of Freedom
• 3: Modern Prior Restraints
• 10: Obscenity
• 4: Libel and Slander

Major Legal Doctrines and Key Cases (course pack pages 1-145):

For the following cases, be sure to know the basic facts, the legal question presented, the holding and its rationale, and the central arguments in the majority decision as well as key concurrences and dissents. Know also why the case is significant to Communications Law.

Sedition and Incitement
● Schenck v. U.S. (1919)
● Abrams v. U.S. (1919)
● Whitney v. California (1927)
● Brandenburg v. Ohio (1969)

Prior Restraints
● Near v. Minnesota (1931)
● New York Times v. U.S. (Pentagon Papers Case) (1971)
● U.S. v. Progressive (W.D. Wis. 1979)
● Colorado v. Bryant (Col. Sup. Ct. 2004)

Scrutiny: Intermediate vs. Strict
● U.S. v. O’Brien (1968)
● Texas v. Johnson (1989)
● Ward v. Rock Against Racism (1989)

Obscenity and Pornography
● Miller v. California (1973)

Violent, Offensive and Harmful Speech
● U.S. v. Stevens (2010)
● Snyder v. Phelps (2010)
● Brown v. EMA (2011)

Libel
● New York Times v. Sullivan (1964)
● Gertz v. Robert Welch (1974)

Topics/Issues/Questions:

The American Legal System
• Sources of law: Who makes constitutional, common, statutory, administrative, and equity law? What are the differences of each?
• Structure and role of court system (know the basics about each of the three levels of courts)
• Civil vs. criminal systems (who are the legal players and what are the punishments in each type of law)
• Precedent: how/when do courts accept/apply, modify, distinguish, overturn precedent? What is judicial restraint?
• Structure and role of Supreme Court : How the court accepts and handles cases, writ of certiorari

Freedom of Speech and Press: History and Theory
• English and colonial roots of free speech and press principles
o Why was the John Peter Zenger libel case so important?
• 1st Amend. values: truth, marketplace of ideas, self-governance, liberty, checking value, safety valve
o Know how particular kinds of First Amendment claims, such as offensive political speech, pornography, or journalist-rights claims, raise different First Amendment values
• Incorporation: The First Amendment applies to the state governments (Gitlow v. NY) – know what that means and why it is significant

Sedition, Incitement and Prior Restraints
• Sedition (what is it, how were laws punishing sedition treated by the courts historical, what case retroactively said such laws were unconstitutional?
• Bad tendency and clear and present tests (Schenck, Abrams and Whitney)
• Brandenburg’s three-prong incitement test
• Teaching function speech – how do the courts assess what is abstract advocacy and incitement ?
• What’s a true threat? (has to single out a person for harm)
• Prior restraints: What are they? When might they be appropriate based on the key precedents of Near v. Minnesota and the Pentagon Papers case?
o Near v. Minnesota and New York Times v. U.S. cases – What were the lower court rulings in the case? Who sued to stop publication? Why did the courts reject the prior restraints sought?
• How did the district judge in the Progressive case apply Near and Pentagon Papers to the facts?
• Based on what rationale/logic did the Colorado Supreme Court uphold the prior restraint against the press in the Kobe Bryant case?

First Amendment as Legal Rules
• Unprotected vs. protected speech
• Categories of unprotected speech: what are the major categories of unprotected speech?
o Chaplinsky and fight words case set forth principles of unprotected categories
• Expressive conduct
o Why was flag burning considered to be expressive conduct and not just conduct? (Texas v. Johnson?) How was strict scrutiny applied to strike down the flag burning statute in the case?
o O’Brien case – sets forth intermediate scrutiny test (O’Brien test ) – What were the facts and how did the court treat O’Brien’s claim of expressive conduct?
• Content-based vs. content-neutral laws: What is the difference between the two? How do the courts decide if a law is content-based?
• Scrutiny: what is strict scrutiny, intermediate scrutiny and rationale basis, and when is each used?
o What are compelling interests and least restrictive means ? (elements of strict scrutiny)
• Overbreadth and vagueness: What is each and what are examples of cases in which the court used these doctrines to strike down laws as unconstitutional?
• Public forums: How are they defined, and what First Amendment protections apply there?
• Time/place/manner restrictions (content-neutral laws)
o How did the court apply the time/place/manner standards in Ward v. Rock Against Racism?
• Other key terms: Chilling effect, Secondary effects, Incidental burdens, Heckler’s veto, Captive audience

Obscenity
• Miller v. California: know the three prongs of the obscenity test and how they are applied
o How does the majority explain why obscenity is not protected by the First Amendment?
o Who decides whether something is obscene or not?
• Pornography – Secondary effects and zoning laws: how have courts upheld regulations on accessing adult content?
o Why is nude dancing expressive conduct that gets First Amendment protections?
o What did the 7th circuit say about the status of pornographic expression in Hudnut? Is there social value to pornography?
• Pornography and the Internet: holding and significance of Reno v. ACLU

Violent, Offensive and Harmful Speech
• Brown v. EMA
o How is violence like and dislike obscenity, from a legal standpoint?
o How does the Court apply strict scrutiny analysis in its decision?
o Why does the Court characterize the law as a content-based law?
• U.S. v. Stevens (2010)
o What was the Supreme Court’s decision and rationale?
o How was the law overbroad?
• Snyder v. Phelps (2010)
o Why did the Courts strike down the jury’s verdict in this case? What were the rationales? Intentional Infliction of Emotional Distress: has First Amendment limitations based on the Hustler v. Falwell precedent
o Why was it important that the speech at issue was on a matter of public concern?

Libel
• Elements of libel: defamation, identification, publication, falsity, fault, damages
• Who has the burden of proof in libel cases?
• Types of Plaintiffs and different levels of fault: Public officials, public figures (all purpose, limited), private people: what are the general standards courts use to determine status and why it matters
• Know the two basic levels of fault: Actual Malice and Negligence
o What is it? Who has to prove it? What elements are needed to prove it?
o What are some of the ways to prove actual malice?
• What standard of fault are required for what types of damages (and for what kinds of plaintiffs)?
• Defenses: truth, fair report, fair comment and criticism (What is needed to show in order to successfully invoke this defense?)
• How do courts decide whether a statement in the libel lawsuit is considered a fact vs. opinion? Why is this important? (Milkovich and Ollman cases)
• Under CA law, what legal incentive is there for news organizations to run corrections for errors?
• What is the statute of limitations for libel lawsuits in CA?
• Major Casesd (Sullivan and Gertz): Know basic facts, legal issues, and how the case changed libel law
• SLAPP statutes: what are they aimed for? How do they work?
• Online libel issues: ISP immunity from Section 230 of CDA: know the basics, know the definition of ISP vs. publisher and why that’s important

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