1.

What was intended by the generation that wrote the free-press clause of the First
Amendment? What are at least two possible interpretations of the Framers'
intentions? Pick one interpretation and argue why you think it is the best
interpretation--the one for which there is the greatest historical evidence. Cite at least
one piece of historical evidence that supports your interpretation--evidence from
around the time the First Amendment was ratified.

During the Revolutionary War, the Founders identified the free press as a major source of
protecting their liberties. This goes back to the English and colonial legacy where prior
restraints restricted the expression of printers which is linked with the Alien and Sedition
Act of 1789 that prevented printers from criticizing the government, Congress, and the
president. Therefore, this the intent of the free-press clause of the First Amendment is to
protect speech and expression before publication and after it as well. Three possible
interpretations of the framers intentions are:

1) Eliminated prior restraints: restraining/restricting expression before it happens.

a. This required printers to obtain prior approval from the government or the
church before printing.

b. It limited the number of printing presses (govt controlled the distribution and
location of technology)

c. Gave licenses to printers and favored those who would oust printers who
wrote seditious material

2) Eliminated seditious libel: slander of the government (challenging authority)

a. In place before printing and well into the colonial period.

b. Govt passed federal sedition law shortly after the 1st Amendment (1798
Sedition Act).

3) Congress: cannot abridge press expression because the original writers didnt want
interference from the federal govt, but state controls are okay.

2. Briefly but precisely explain the significance to First Amendment law of the following:
(a) clear and present danger test; (b) Gitlow v. New York (1925); (c) Miami Herald
Publishing Co. v. Tornillo (1974); (d) fighting words doctrine

a) In cases of clear and present danger, your 1st A rights are limited if your expression
incites physical violence (1st part of the Brandenburg test).

b) No level of government or government agency can restrict expression.

 c) No government involvement in private media. Private papers can say anything about a
person so long as they use the Right of Return which allows space on your publication to
respond. **if you dont like something in the marketplace of ideas, dont turn to
government, enter the marketplace yourself.**

d) Imposes some limits on provocative speech. Face to face encounters can be prosecuted
because it can mount to violence (2nd part of the Brandenburg test).

3. What are the key differences between ad hoc balancing and the preferred-position
balancing theories of the First Amendment?

Ad hoc (for this) balancing means that you balance facts case-by-case (no bias) but the
preferred-position balancing theory is the opposite. In preferred position, you begin with
favoritism of expression, so the party that wants to limit expression has the burden of proof.

4. Why are hate speech laws usually declared unconstitutional in the United States?

a) Not content neutral

b) Not fighting words (no true threat)

c) Restrict more speech than necessary

d) The preferred remedy is to enter the marketplace of ideas

5. Why has libel law traditionally distinguished between publishers and distributors of
defamatory messages? Whats the implication of this distinction for libels circulated
on the Internet?

The publisher is a person who has control over the message and the distributors do not have
access or control to that message unless the plaintiff can prove scienter. Distributors are
protected under section 230 that protects them from being liable for the message unless they
took part in creating the illegal material or have set up websites that require submission of
illegal content in order to post. This means that libel cases circulated on the internet are
extremely hard to follow through and more often than not, the speech on the internet is
protected in order to maintain is free and contentious environment.

6. Your nationally circulated magazine digs up some "dirt" on the two chairwomen of the
Nebraska Anti-Abortion League, Mrs. Hilty and Mrs. Rooney. Both have headed the
League for six years. The director of the Nebraska Welfare Department tells your
reporter at a cocktail party that Mrs. Hilty, one chairwoman, received state funds five
years ago to pay for an abortion. It later turns out that the money went to a different
woman with the same last name. Your magazine also hears and prints rumors that
Mrs. Rooney, the other chairwoman, has "evaded taxes on income from the farm that
she and her husband own." After the article is printed, the IRS says that the couple
accidentally underpaid their taxes by $5. The women file separate libel suits. A key
 question, of course, is whether they will be considered public or private figures. What
do you think? Explain your reasoning.

Mrs. Hilty: In her case she will be considered a limited purpose public figure because the
libel suit is in regards to her actions as a chairwoman for antiabortion. As a public figure, she
has to prove actual malice.

Mrs. Rooney: She will be considered a private figure because the libel in her case does not
have implicit connections with her position as a chairwoman but rather herself as a citizen.

7. The Supreme Court has said that opinions are absolutely protected from libel suits but
that facts are not. How do courts go about distinguishing fact from opinion for
purposes of a libel suit? In other words, what are the elements of the test that courts
are likely to use to determine if an expression of opinion is protected?

a) Ninkovich case: can the statement be proven true or false

b) Common meaning of the words

c) Journalistic context

d) Social context

8. What is a summary judgment in a libel suit? Why do defendants like summary

judgments? What is the general test that a judge uses in deciding whether to grant a
summary judgment for a defendant?

The judge dismisses a suit before the trail begins

9. Short essay. The Supreme Court restructured libel law by adding the element of actual
malice in many cases. First, define actual malice. Second, how has actual malice made
it much more difficult for plaintiffs to win libel suits? Give two reasons. Third, how is
actual malice distinguished from traditional malice?

Actual malice is publishing a false statement despite knowing its falsity, or with reckless
disregard for the truth. Actual malice has made it more difficult for plaintiffs to win libel
suits because the plaintiff has to obtain evidence of severe shortcomings of the journalistic
process and that it needs to be established with clear and convincing evidence.

Key Terms
1798 Sedition Act
1917-18 Espionage and Sedition Acts
Gitlow v. New York (1925)
Public forum
Time, place and manner
First Amendment theories -- absolutist, ad hoc balancing, preferred position balancing,
Meiklejohn, symbolic speech or speech/action
Technical requirements for laws to comply with the First Amendment (narrowly tailored,
substantial governmental interest, content neutrality, limited discretion for administrators, no
absolute bans)
Miami Herald v. Tornillo (1974)

Brown v. Entertainment Merchants Association (Supreme Court 2011)

Near v. Minnesota (1931)

Pentagon Papers case (1971)
Progressive magazine case
Son of Sam laws

Libel prerequisites: Publication, identification, defamation, falsity, fault

New York Times v. Sullivan (1964)
Gertz v. Welch
Qualified privilege
Opinion v. facts
Jurisdiction
Discovery process
Retraction
Mitigating factors
Damage awards
Summary judgment

Appropriation
Right of publicity
Incidental use of name or image
Intrusion
Reasonable expectation of privacy
Disclosure of private facts
Highly offensive to a reasonable person
False light