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Comm Law Test 2

1) Know if the First Amendment applies equally to private and public schools
a. No, the private school systems have a contractual agreement where students must “follow the
established rules” in which the freedom to say what you want is outlined
b. In public schools, students have the ability to exercise free speech, but most attempt to remain
content neutral in their policies

2) Understand (i.e., know what the issues were and who won)
a. Tinker vs. Des Moines
-Students wear "BLACK ARMBANDS"
-To protest Vietnam War, were suspended. Appealed all the way to the Supreme Court, Won
-as long as the student outcry is not disruptive, of school discipline and decorum

b. Bethel School District vs. Fraser
-A student delivered an inappropriate speech during a school assembly. The speech was full of
terms with elaborate, graphic, and sexual content. Student was suspended and was removed from the
commencement speakers list.
-the student’s speech caused disturbance.

c. Morse vs. Frederick

d. Hazelwood School District vs. Kuhlmeier
-Censoring of a school funded newspaper that was deemed "inappropriate"
-The U.S. Supreme Court held for the first time that public school officials may impose some
limits on what appears in school-sponsored student publications.

e. Kincaid vs. Gibson
-Charles Kincaid and Carpi Coffer filed suit on behalf of the students against the university.
Initially the lower courts ruled in favor of the school using the Hazelwood v. Kuhlmeier case as an
example of how students can be censored by school administrations. Eventually the case made it all the
way to the Sixth Court of Appeals. After failing to win a decision the students appealed to have the
district court rule en banc.

3) Know what “en banc” means
a. Refers to the hearing of a legal case where all judges of a court will hear the case (an entire
"bench"), rather than a panel of them

5) Know difference between libel and slander
a. "Libel" involves the publishing of a falsehood that harms someone.
b. "Slander" is the same doctrine applied to the spoken word
c. New York Times v. Sullivan, the Supreme Court held that the First Amendment requires that,
before a public official can recover damages for a defamatory statement, he must prove it was made
with "actual malice", even if state laws otherwise allow recovery for negligent defamation. The Court
has since expanded this to cover not only public officials but "public figures", including individuals
who involve themselves in controversies.

6) Know difference between criminal libel and civil libel
a. Civil libel involves suing for damages; criminal libel involves punishment (if the accused is
convicted) and not damages.

7) Know what case set “actual malice” standard for:
a. Civil Cases
-Philadelphia v Hepp
b. Criminal Cases
-Gertz v. Welch

8) Know what case created the “fair comment and criticism” precedent
-Cherry v. Des Moines

9) Know what case determined that private figures who were thrust into limelight were not considered
public figures
-New York Times v. Sullivan; have tpo prove actual Malice

10) Know what three elements are needed to win a libel case as a private figure
a. Untrue. In order to be defamatory, the statement must be untrue. If the statement is true or
substantially true, then it is not defamatory, and the case is over.

b. Damaging. In order for the plaintiff to prevail, the statement must have caused real and
substantial harm to the person or business. The plaintiff must present evidence of the substantial harm
done.
c. Knowingly false. The plaintiff must also show that the defendant knew the statement was
untrue, but published or broadcast the statement despite that knowledge.

11) Know what extra element required to win libel case as a public figure
a. A public official or a public figure must also prove "malice" -- that you acted in reckless
disregard to the facts known to you and with intent to harm

12) Know what “per curium” means
a. A per curiam decision (or opinion) is a ruling issued by an appellate court of
multiple judges in which the decision rendered is made by the court (or at least, a majority of the court)
acting collectively and anonymously. In contrast to regular opinions, a per curiam does not list the
individual judge responsible for authoring the decision.

13) Understand (i.e., know what the issues were and who won)
a. Falwell vs. Flynt
-Falwell did not like the advertisement parody
-The court ruled that advertisement parody is protected as an opinion under the first amendment

b. Milkovich vs. Lorain Journal
-Milkovich won, against the journal that said he had lied during his deposition on the fight
-Just because you label something opinion does not absolve you from libel
-States now hold different bars for what opinions journo's can say

c. Herbert vs. Lando

d. Murphy vs. Boston Herald
-In a unanimous decision that was "sharply critical of the newspaper and its reporter, David
Wedge,"the Supreme Judicial Court said, "There is an abundance of evidence that, taken cumulatively,
provides clear and convincing proof that the defendants either knew that the published statements
found by the jury to be libelous were untrue or that they published them in reckless disregard of the
probable falsity."

-Compensatory Damages (less money) = Negligence
-Punative Damages (more money) = Actual Malice
-set by the criminal case gertz v welch, set the precedent
-Strict Scrutiny:
-is there a compelling government interest justifying the regulation
-is the regulation necessary
-is the regulation narrowly tailored, least restrictive, least intrusive