SHOW NOTES EP #21: MINI SERIES PART 5 FIRST AMENDMENT DEEP DIVE

INTRODUCTION

Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.

Sponsor – This week the podcast is sponsored by NordVPN. With more than 10 yrs of experience, NordVPN is a leading VPN provider. NordVPN gives you military-grade protection online, and you can access all your favorite sites without restriction. NordVPN never logs your activity when using their servers. You can always trust your privacy to NordVPN. Thank you NordVPN for sponsoring Learning the Law. If you use our link you can have access to all this and help out the podcast: https://www.anrdoezrs.net/click-100464507-14482597

Itinerary

  1. Our Weeks
  2. Questions from the audience (if there are any)
    1. From Troublemancer – Is it legal to for a coroner to exclude COVID-19 as cause of death
    2. From Estarsi – US “banning” gaming PCs
  3. Topic of the week – 1st Amendment
    1. Off topic – but still on topic Texas Supreme Court 
    2. What does the 1st Amendment actually say: 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 to peaceably to assemble, and to petition the Government for a redress of grievances

Alien and Sedition Acts

The Federalist party passed these acts in 1798 to stifle opposition to the party, and outlawed criticism of the President and Congress.

Civil War

During the Civil War, Abraham Lincoln, by executive order, outlawed correspondence with, or give intelligence to , the enemy, either directly or indirectly.  Many journalists that had access to both sides of the war were imprisoned.

WWI

The Espionage Act of 1917 and the Sedition Act of 1918, which amended it, imposed restrictions on the press during wartime. The acts imposed a fine of $10,000 and up to 20 years’ imprisonment for those publishing “… disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag …”[1] In Schenck v. United States (1919) the Supreme Court upheld the laws, setting the “clear and present danger” standard. Brandenburg v. Ohio (1969) revised the clear-and-present-danger test to the significantly less-restrictive “imminent lawless action” test.

Branzburg v. Hayes

Freedom of the press was described in 1972’s Branzburg v. Hayes as “a fundamental personal right”, not confined to newspapers and periodicals.[1] In Lovell v. City of Griffin (1938),[2] Chief Justice Charles Evans Hughes defined the press as “every sort of publication which affords a vehicle of information and opinion.”[3] This right has been extended to newspapers, books, plays, movies, and video games.[4]

.  Freedom of the press

New York Times v. Sullivan – Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with “actual malice“, meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.[3][4]

Parody – Falwell v. Flynt   In the ad, Falwell is quoted as saying, “We were drunk off our God-fearing asses on Campari…and Mom looked better than a Baptist whore with a $100 donation.” At the insistence of legal counsel, the group agreed to place at the bottom of the ad the words: “Ad parody. Not to be taken seriously.”

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

Greenbelt Cooperative Publishing Association, Inc. v. Bresler

In 1970, the U.S. Supreme Court ruled that a news organization couldn’t be sued over the use of “rhetorical hyperbole”. The usage in question was when quoting eyewitnesses, but the court ruled that, even if it hadn’t, to call it libel “would subvert the most fundamental meaning of a free press”.

Obsidian Finance Group, LLC v. Cox

On 2014, blogger Crystal Cox accused Obsidian and Kevin D. Padrick of corrupt and fraudulent conduct. Although the court dismissed most of Cox’s blog posts as opinion, it found one post to be more factual in its assertions (and, therefore, defamatory).

It was ruled for the first time by the Court of Appeals for the Ninth Circuit,] that a blogger is entitled to the same free speech protection as a journalist and cannot be liable for defamation unless the blogger acted negligently. In the decision, journalists and bloggers are equally protected under the First Amendment[21] because the “protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

Credible news sources

Closing

Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. You can find Ron on twitter at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.

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