Media Law in the News 1: Former ‘Apprentice’ Contestant Files Defamation Suit Against Trump

Summary of the Case

Recently, one of the former contestants of Donald Trump’s reality show “The Apprentice” Summer Zervos, filed a lawsuit against Donald Trump for defamation.

Namely, the plaintiff had previously filed a lawsuit against Trump for sexual assault, which happened during the election campaign period.
Summer Zervos brought a sexual assault case to the New York State Supreme Court against Trump in October 2016. In her case, the plaintiff stated that Trump “had kissed and groped her without her consent”. After these accusations were made public, Mr. Trump stated on several occasions that the plaintiff (as the other women with similar accusations) was lying and that the assault was fully invented by the plaintiff herself “to get attention”.
This is the exact reason which motivated Zervos to file a new lawsuit against Trump only few days before he entered the White House. Also, after seeing the ‘Access Hollywood’ story, Zervos was enraged by Trump’s following negation of such behavior, giving her more drive to publicly talk about her experiences. Since the case involves an incident that happened before Trump’s taking office, the government official immunity doesn’t apply.

In the lawsuit, it is stated that “Donald Trump lied again, and again, and again, and again. In doing so, he used his national and international bully pulpit to make false factual statements to denigrate and verbally attack Ms. Zervos”. By doing so, Mr. Trump is considered to have subjected Zervos “to threats of violence, economic harm, and reputational damage”.

In the gist of the case, Summer Zervos is suing Donald Trump for emotional harm and economic damages, which account for the defamation case. Nonetheless, the facts of the case must undergo certain evaluations according to which the results of the case will be decided.

Legal Questions

Given the facts of the case, some of the legal questions that may be raised are the manner in which the court or the plaintiff could prove that Donald Trump was lying. What would be a legal and credible way of proving Trump’s dishonesty?

Moreover, what is the plaintiff’s level of public involvement? In other words, can we identify Summer Zervos as any form of public figure?

Other than that, would the impeachment be immediate if the case advanced?

And finally, there would definitely be a lot of questions regarding the discretion of court officials, and how inclined would they be to rule the case in President’s Trump advantage? This could be an issue, especially recognizing Trump’s leadership character as being fairly impulsive if not satisfied.

Relevant Doctrine

The doctrine that applies is the Plaintiff’s case for Defamation (Slander), Defamation being the category of law.

In order for a case to identify as slander, it must be publicly expressed as a statement of fact, of and concerning the plaintiff, and has to include defamatory content. Moreover, the slander has to false and cause actual injury or damage.

The six categories of the plaintiff’s case for slander are: publication, identification, defamation, fault, falsity and damage. In order to win the case, the plaintiff must be able to prove all of these in the court.

Publication

In order to prove publication, the statement must be heard by a third party. Since Donald Trump was a public figure before he became a public official, most of his interactions were done through different media outlets. To add, the statements given in the case were made in press conferences, which automatically confirms their publication.

Identification

Although in the portion about identification, it is required that at least one person reasonably believes that the slander is regarding the plaintiff. In this case, Summer Zervos’ name was directly mention in some of the statements, which is a proof itself.

Defamation

To prove defamation in court, the plaintiff must be able to prove that a respectable and a substantial minority of the community thinks less of her or that shows hatred toward her. Additionally, if the plaintiff experienced loss of jobs or any damage to her profession, the defamation is automatically proven. Taking into account Mr. Trump’s powerful and influential position in the public, it can be seen how a substantial and respectable part of a community might think less of Zervos after hearing the claims made by Trump.

Fault

To prove fault, the court must first establish whether Zervos has to prove negligence or actual malice, depending on her level of involvement in the public eye. Considering Zervos participation in the media, she is considered to be a limited purpose public figure. Limited purpose public figures usually enter the public sphere by being a part of a controversy for a limited amount of time, which grants them certain level of access to the media.

Hence, Zervos must be able to prove actual malice to the court in order to win the case. Actual malice is defined as the knowledge of falsity or reckless disregard for the truth. On the other side, Donald Trump as the defendant only has to have one good defense in order for the case to be dropped.

Falsity

If the statement given is not substantially true, it is considered to prove falsity. In Zervos’ case, Trump repeatedly said that the plaintiff was lying. In the article, Zervos’ lawyer says that they have conducted a polygraph test to prove that the plaintiff was telling the truth. Consequently, this would lead to a logical conclusion that Trump was, indeed, lying. Nevertheless, this should still be further proven in court proceedings.

Damage

The very core of the alleged accusations made by Zervos is the emotional and economic damage that the defamation caused her. According to the facts from the case, this would fall under the category of punitive damages, which would result in punishing the defendant. Furthermore, Zervos’ lawyer also stated that “the purpose of the lawsuit was not financial, but […] to get Mr. Trump to admit that he lied”.

Conclusion

Through analyzing the case, I think that Zervos has a strong case against Donald Trump, and that she could be able to prove slander. Some of the legal questions raised can be answered through the analysis of the elements of the Plaintiff’s case for Slander, and some would be answered if the case moved forward in the court.

Some of the challenges might be the power and influence possessed by President Trump, as well as the financial power which he could utilize for his defense team. I am interested to see further development of the case, and if it gets to the court, its final result.

It was interesting to individually analyze a real-life case, especially with this amount of complexity due to the position of the defendant and his relationship to the plaintiff. This case helped me gain more skillful and focused thinking about doctrines, and understanding the hierarchy of different categories of media law. Also, I think that this improved by ability to take different facts into consideration that might be relevant to the case, and the manner in which different circumstances would influence the outcome of the case as well.

Word Count: 1166 words

Reference:

Twohey, M. (Jan 17, 2017). Former ‘Apprentice’ Contestant Files Defamation Suit Against Trump. The New York Times. Retrieved from https://nyti.ms/2k1Bs8a. 

Chapter Five: Libel

Overview of the Topic:

In order for the plaintiff to prove libel in court, he or she has to be able to prove several elements as supporting the case in order to win a libel suit. In contrast, the defendant’s role in a libel suit is only to have only one suitable defense in order for the court to dismiss the case.

When it comes to protecting the reporters from being sued from defamation, the fair report privilege takes off the stress of accidental defamation. Namely, if the report published in the news was given by an official, or originated from some official document, the reporter is automatically protected from any defamation suit. The privilege is covered officials and proceedings in the executive, judicial and legislative branches of state, as well as local and federal governments. In addition, law enforcement agencies are also covered. It is crucial for citizens in a participatory democracy to have a right to such information.

In regards to published book and other reviews, the court applies fair comment and criticism criteria, which protect critics from being sued by the individuals in the public eye. Although similar to comment and criticism, the law differs opinion as constitutionally protected by the First Amendment. In order to determine opinion in court, the officials apply the Ollman Test.

Some of the libel defenses also allow for the republication, such as neutral reportage and the wire service defense. One of the main rules protecting the republication services is the single-publication rule, where the republication of some content is not seen as a new material.

In cases where the libel defendant files an appeal in order to dismiss a libel suit, the plaintiff usually cannot prove his or her case. Most of the aspect of a libel suit generally work in the defendant’s advantage. For instance, the section 230 of the Communications Decency Act offers relatively limited immunity to websites and ISPs in libel claims.

One of the more important elements to be aware of are retractions, apologies and corrections. Knowing how to demonstrate basic journalistic responsibility may present a great influence to avoid a libel case at all.

Defining Key Terms:

Fair Report Privilege: A privilege claimed by journalists who report events on the basis of official records. The report must fairly and accurately reflect the content of the records.

Absolute Privilege: A complete exemption from liability for the speaking or publishing of defamatory words of and concerning another because they were made within performance of duty.

Conditional (qualified) Privilege: Because the original statement was made within the performance of duty, this privilege is an exemption from liability for repeating defamatory words of and concerning another.

Fair Comment and Criticism: A common law privilege that protects critics from lawsuits brought by individuals in the public eye.

Innocent Construction: Allegedly libelous words that are capable of being understood to have an innocent meaning are not libelous.

Neutral reportage: A defense accepted in some jurisdictions that says that when an accusation is made by a responsible and prominent organization, reporting that accusation is protected by the First Amendment even if the accusation is false.

Single-publication rule: A rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and on websites.

Libel-proof Plaintiff: a plaintiff whose reputation is deemed to be so damaged already that additional false statements of and concerning the plaintiff cannot cause further harm.

Important Cases:

Ollman v. Evans – Evans’ published material was concluded to be fully protected by the First Amendment, as it was defined as opinion, hence constitutionally protected.

Milkovich v. LorainJournal Co. – After several appeals made by Milkovich, the Supreme Court ruled that the piece was not the opinion, therefore could be libel.

Relevant Doctrine:

Fair Report Privilege

1. The information must be obtained from a record or proceeding recognized as “official”.
2. The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding.
3. The source of the statement should be clearly noted in the news report.
4. Not all states recognize the fair report privilege.

The Ollman Test

In order to prove opinion, it must pass:

• Verifiability
• Common meaning
• Journalistic context
• Social context

Neutral Reportage

The First Amendment is a defense in a libel case if:

• The story is newsworthy and related to a public controversy.
• The accusation is made by a responsible person or group.
• The charge is about a public official, public figure or public organization.
• The story is accurate, containing denials or other views.
• The reporting is neutral.

The Wire Service Defense

It can be applied if:

• The defendant received material containing the defamatory statements from a reputable news-gathering agency.
• The defendant did not know the story was false.
• Nothing on the face of the story reasonably could have alerted the defendant that it may have been incorrect.
• The original wire service story was republished without substantial change.

A Test for Jurisdiction

1. Whether the defendant purposefully conducted activities in the state
2. Whether the plaintiff’s claim arises out of the defendant’s activities there, and
3. Whether the exercise of jurisdiction would be constitutionally reasonable.

Section 230 Immunity

The application of the Immunity is possible if:

• The ISP/Website is a content distributor and not a content creator
• The ISP/website did not interact directly with the content

It also applies if:

• ISPs/websites correct, edit, add or remove content, as far as the meaning of the content is not manipulated.
• ISPs/websites solicit or encourage users to submit content
• ISPs/websites pay a third party to create or submit content
• ISPs/websites provide neutral drop-downs and forms to facilitate content submission.

Current Issues/ Controversies:

With the inauguration and other political events revolving around the Trump family, all of the media has been heavily focused on the family and its members.

Earlier in the summer of 2016, a blogger from Maryland called Melania Trump a “high end escort”, for which Mrs. Trump filed a libel suit and won a couple of days ago.

Although the defendant’s lawyers appealed to the judge by claiming that there was no proof of actual malice in the libel suit, the judge still ruled in favor of Melania Trump.

Even though there might not be actual malice present in the blogger’s post, the issue was around the actual phrase used (high-end escort), which is most commonly associated with the word prostitute. Hence, the immediate social content of the phrase used in describing Melania Trump was one of the key elements that directed the court’s final decision.

My Questions/ Concerns:

1. How dependable is the definition of opinion on individual officials’ discretion?
2. If the libel case was so hard to prove for the plaintiff’s win in the court, is it even worth bringing a libel case to the plaintiff?

References:

Gerstein, J. (Jan 27, 2017). Melania Trump wins round inlibel suit over blogger's 'escort' claims. Politico.Retrieved from http://www.politico.com/story/2017/01/melania-trump-libel-suit-blogger-234263.

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Chapter Four: Libel and Emotional Distress

Topic Overview:

Defamation is defined as untruthful communication that damages an individual’s reputation. It is the umbrella term under which the law categorizes libel and slander. Libel is false, written information that damages a person’s reputation. Generally, the laws against defamation, particularly libel, serve as a preventative measure for future cases of libel.

When it comes to an actual lawsuit, the plaintiff’s duty is to bring about an assertion of fact, because the expression of opinion cannot be libelous. Furthermore, the statement must have been made public prior to the case, otherwise it will not be considered libelous. In the case of libel, the re-publisher of the libel can be held as responsible as the author of the libel.

When it comes to differing defamatory against the non-defamatory statements, some expressions are seen as defamatory by default, depending on their content. Usually, those are accusations of criminal activity, unethical and immoral activities and unprofessional behavior.

In libel law, there is a distinction in fault standards, depending whether the case involves a matter of public concern. The ruling in this manner minimized the possible chilling effect of libel suits and offers more space for freedom of expression in journalism and the media.

Any form of extreme or outrageous conduct that causes an individual’s emotional distress or harm is illegal, and can be brought to court, especially if the plaintiff is a public official or figure. The plaintiff can sue the defendant for infliction of emotional distress even if that harm was cause by accident. Still, plaintiff has to be able to prove that the harm was done and that it was an immediate result of the said infliction. In the media, there are rarely the cases that can prove infliction, since the media has no duty to use due care.

Defining Key Terms:

Sedition Act of 1798: federal legislation that made it illegal to oppose or resist any law imposed by the U.S., and to publish, write or print any kind of criticism directed at the Congress or the President.

SLAPP (strategic lawsuit against public participation): A lawsuit whose purpose is to suppress critics’ First Amendment rights by harassing them into silence.

Communication Decency Act (CDA): One of the government’s greatest attempts to regulate online content.

Libel per se: A statement whose injurious nature is apparent and requires no further proof.

Libel per quod: A statement whose injurious nature requires proof.

Deposition: testimony by a witness conducted outside a courtroom and intended to be used in preparation for trial.

Bootstrapping: the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit.

Strict liability: A defendant is automatically responsible for damages.

Intentional inflict of emotional distress: extreme and outrageous intentional or reckless conduct causing plaintiff’s severe emotional harm.

Reckless: word used to describe actions taken with no consideration of the legal harms that might result.

Important Cases:

New York Times Co. v.Sullivan – The court ruled that the evidence brought to the court was not sufficient to prove the plaintiff’s case, as well as the State court of Alabama did not provide sufficient safeguards for the freedom of expression for the defendants.

Hustler Magazine Inc.v. Falwell – Initially, the jury ruled on the infliction of Falwell’s emotional distress claim. In the appeal, the court affirmed the case against the petitioners.

Relevant Doctrine:

Plaintiff’s Libel Case

In order to be libelous, the plaintiff’s case must be:

• A statement of fact
• That is published,
• That is of and concerning the plaintiff,
• That is defamatory,
• That is false and
• That causes damage or harm and
• For which the defendant is at fault.

The Dendrite Test

In order for the plaintiff’s anonymous case to be seen as libelous, the plaintiff must:

• Undertake efforts to notify the anonymous party that he or she is the subject of a subpoena or order of disclosure.
• Identify the precise, alleged actionable speech made by each anonymous poster.
• Show prima facie evidence that the case is strong enough to withstand a motion to dismiss.
• If the case is strong enough, the court must then balance the defendant’s First Amendment right to anonymous speech against the strength of the case presented by the plaintiff and the need to identify the defendant for the case to proceed.

Actual malice

• Knowledge of falsity or
• Reckless regard for the truth

”Reckless disregard” Criteria

• Urgency of the story (if there is time to check the information)
• Source reliability (if the source is trustworthy)
• Story believability (if some further examination is necessary)

Limited-Purpose Public Figure

In order for the case to be libelous:

1. A public controversy must exist before the publication of the allegedly libelous statement.

2. The plaintiff must have in some way participated voluntarily in trying to resolve this controversy.

3. The plaintiff’s participation actively sought to influence public opinion regarding the controversy.

Intentional infliction of emotional distress

In plaintiff’s case, in order to win, the defendant:

1. Was extreme and outrageous

2. Involved actual malice, if plaintiff is a public official or public figure, and

3. Caused plaintiff’s severe emotional distress.

Negligent infliction of emotional distress

Plaintiff’s case must prove that:

• The defendant had a duty to use due care
• Negligently breached that duty
• Causing the plaintiff’s severe emotional distress, and
• The breach was the proximate cause of the plaintiff’s emotional distress.

Current Issues/ Controversies

Recently, the U.S. president Donald Trump was sued for libel and won.

The issue revolving around this case is the timing of the lawsuit, followed by the court’s decision to rule it in favor of Mr. Trump. Namely, the results from the case have been made known only ten days before Mr. Trump’s inauguration January 20^th.  Additionally, the 2017 lawsuit Jacobus v. Trump had very similar arguments to a case Chicago Tribune v. Trump, which Trump lost.

So, one of the main questions, aside from the timing, is the determination of the standards in the cases. Naturally, the courts and officials are often times ruling according to their right to discreteness, however, it has its limits. In the Jacobus case, Mr. Trump’s tweets were dismissed as libel, and defined as a part of political and campaign speech, hence being further defined as opinions rather than falsely spread facts. On the other hand, as Mr. Trump’s tweets would often become viral depending on their context, it is hard to say whether or not those were intended to cause harm to the plaintiff in the Jacobus case.

Regardless, there is a high possibility that the results of the case were directly influenced by Mr. Trump’s position as a powerful public figure and his political impact among different officials.

My Questions/ Concerns

1. Do the anonymous cases get the same priority as public figure libel cases?

2. How many successful cases of tracing down the anonymous sources and lawsuits against them are there?

3. Are there a consistent and stable standards among courts for proving emotional distress?

References:

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Sableman, M. (2017). Trump libel win based on Trump libel loss. Thompson Coburn LLP.

Chapter Three: Speech Distinctions

Topic Overview:

To make the job of determining whether or not a certain case violates the First Amendment rights, the courts often times turn to a categorical weighing of the speech and its impact in order to determine the result. Generally, when it comes to protecting the national security that can potentially outweigh the speech protection in some situations. However, some of the lines between protected and unprotected speech are not determined, therefore dependent on the courts’ interpretation of the legal tests available.

Throughout history, the U.S. public has seen many cases in which ordinary speech became criminal during the times of war or national crisis. That kind of speech was defined as “clear and present danger” by Justice Holmes in 1919. Over the years, the legal tests for the illegal speech were adjusted and eventually became the Brandenburg/ Hess test, which enables the court to clearly determine whether or not there was any intention of an incitement.

When it comes to media, the plaintiffs that sue mass media for incitement rarely win the lawsuits. Namely, it is extremely challenging to prove that the media had an actual intention of promoting violence. In terms of offensive speech, the majority of offensive expression is protected by the government, except for the word and expressions that directly promote violence and illegal action. But, hate speech hasn’t been defined as a specific category of speech, which creates an issue of knowing when hate speech promotes direct violence, or when it is just speculative and vague. To solve this problem to a certain extent, the Court has determined the concept of true threats.

The cases that happen inside schools and universities depend on the intensity of the threat, on statutory language, and the societal interest involved. Universities generally have a higher obligation to provide public forums for their students’ expression.

Defining Key Terms:

USA PATRIOT Act: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001; law enforcement agencies got more power to fight terrorism.

Chilling effect: the discouragement of a constitutional right by any government practice.

Viewpoint-based discrimination: Government censorship or punishment of expression based on the ideas or attitudes expressed.

True threat: Speech directed toward one or more individuals with the intent of causing listeners to fear for their safety.

Orthodoxy: The generally accepted beliefs of society at a particular time.

Important Cases:

Tinker v. Des MoinesIndependent Community: The wearing of a band is a form of symbolic expression and is protected by the First Amendment, as it cannot be defined as directly disruptive conduct.

Elonis v. UnitedStates: Because the posting is not a criminal act, but the threat in the content of the posting is, the accused did not allege to having an actual intent of harm, hence he was innocent.

Relevant Doctrine:

Incorporation Doctrine

The Fourteenth Amendment concept that most of the Bill of Rights applies equally to the states.

The Brandenburg/ Hess Incitement Test

The test allows punishment of “advocacy of illegal action” if:

1. The speech is directed toward inciting immediate violence or illegal action

2. The speech is likely to produce that action.

Media Liability for Negligence

The plaintiff must prove that a certain media content posed a:

1. Reasonable foreseeability of harm or

2. Proximate cause of the harm.

Underinclusive

A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment.

True threat

Utterance in a context of violence [that] can lose its significance as an appeal to reason and become part of an instrument of force.

Non-University-Student Speech

The Non-University-Student Speech may be regulated if it:

1. Disrupts the functioning of the public school or violates the rights and interests of other students.

2. Is lewd or if it conflicts with the school’s pedagogical goals or public values.

3. Is sponsored by the school and therefore perceived to reflect the school’s official position and attitude. If the speech occurs in a school-sponsored forum or event, if it is part of the school’s official curriculum or if it appears to entangle the school with particular religious viewpoint, it may be regulated.

Current Issues/ Controversies:

Generally, the presidential candidate D. Trump has had several speeches in which he had included hate speech toward certain groups of people or individuals. However, the speech wasn’t calling for any kind of harm to any of the people targeted in D. Trump’s speeches, therefore it was protected by the First Amendment Rights.

Nonetheless, as D. Trump was elect for the new U.S. President, there is a question of standards of hate speech. With his personal attitudes and approached toward hate speech and the amount of openness in his personal expression, will that move the boundaries among the U.S. public as well?

Also, will more hate speech become more acceptable generally and in the court as well if the leader of the nation consistently demonstrates discriminatory statements and attitudes? There are a lot of controversies revolving around the issue, especially since the official results of the Elections came out. Although there is high level of anticipation present among many, almost everyone is aware of the general issue of the marketplace of ideas, and where the power to freely express yourself comes from – money. Hence, it is hard to determine what the future status of hate speech would be, but hopefully it is only going to improve, regardless of the leadership at the front of the nation.

My Questions/ Concerns:

1. Are there any established boundaries that help differ vague and speculative hate speech against intentional hate speech toward a person or a group? How much attention is given to these issues in general?

References:

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Chapter Two: The First Amendment

Topic Overview:

As one of the most essential and referenced amendment, the First Amendment represents one’s right to free speech and the freedom of press. Although the exact explanation of the limitations of the Amendment wasn’t given in its making, the Supreme Court rejects the idea that the First Amendment bans the government from regulating speech and press. The Supreme Court uses various tools to avoid broad interpretations of the meaning of free speech, which enables the Court to balance the competing interests in their own way.
Through its decision making processes, the Supreme Court demonstrates different interpretations and understandings of the First Amendment and its values, as well as the perimeters of the meaning of free expression and speech. Throughout the time, the constitutional protection and rights have been adjusted to different publics and according to different levels of freedom.

With the emergence of new media outlets, there have been new issues that challenged the values of the First Amendment, as there was more space for free expression and the circulation of that expression. Generally, with the evolution of mass media and journalism, the Supreme Court has designed various tests when the government’s actions invade the rights given by the Constitution. Among all the forms of free speech, political speech receives most attention and is analyzed the most. 

Defining Key Terms:

Categorical Balancing: A judge’s or court’s practice of deciding cases by weighing different broad categories to create rules that may be applies in later cases with similar facts.

Defamation: A false communication that harms another’s reputation and subjects an individual to ridicule; includes both libel and slander.

Seditious libel: Criticism of the government.

Compelling interest: a government interest of the highest order.

O’Brien test: A three-part test used to determine whether a content-neutral law in constitutional.

Important Cases:

Near v. Minnesota – The Court ruled that anyone who becomes a part of the business of publishing an obscene or a defamatory newspaper or periodical would be faulted for nuisance, and prevented from further maintaining the nuisance.

New York Times Co. v. United States – In the famous ‘Pentagon Papers Case’, the United States attempted to prevent the Washington Post and the New York Times Co. from publishing the content by calling for the prior restraint, under the reasoning that the documents were crucial for national security. 

Relevant Doctrine:

Prior Restraint
In order for prior restraint to exist:
1. Any government body or representative
2. Reviews speech or press prior to distribution and
3. Stops the dissemination of ideas before they reach the public

Government prior restraints are constitutional when they prevent:
1. Obstruction of military recruitment
2. Publication of troop locations, numbers and movement in time of war
3. Obscene publications
4. Incitements of violence
5. Forcible overthrows of government
6. Fighting words likely to promote imminent violence

Scrutiny
Strict scrutiny
In order to be constitutional, content-based law must:
1. Be necessary and
2. Use the least restrictive means
3. To advance a compelling government interest
Intermediate-level scrutiny
1. To be constitutional, a law must:
2. Fall within the power of government and
3. Advance an important substantial government interest that is unrelated to suppression of speech and
4. Be narrowly tailored to impose only an incidental restriction on First Amendment freedoms

Current Issues and Controversies:

In the past year, especially in the last several months of the Presidential Election in the U.S., there have been many discussion on the Constitution and how do the candidates understand and interpret the importance and the role of the constitution. For example, in one of his Tweet posts, Donald Trump states that burning the American flag should be punished with jail or the loss of citizenship. The reason this post caused a controversy is that the Supreme Court ruled the burning of the flag as protected by the First Amendment, as it is a form of free expression. 

On one side, Donald Trump’s reaction would be understandable as burning of the American flag is, in essence, disrespectful and impolite. There are better and less dramatic ways of expressing one’s dissatisfaction with the situation in U.S. at the same time, being at such a high position in the Office, D. Trump’s approach should be kept off Twitter and other social media.

The other side of the arguments brings about the controversy about changing the First Amendment, which would start many other discussions on the matter of free expression and speech. The First Amendment itself is a highly complex aspect of the U.S. Constitution, and changing only one aspect calls for a much deeper evaluation of other elements of the First Amendment and what they mean as well. 

My Questions/ Concerns:

1. Where is the line between an individual being disrespectful and him or her merely practicing their right given by the First Amendment? Is there a way of recognizing those differences?
2. As the highest body in the U.S. justice system, by giving the right to go against the First Amendment, isn’t the Supreme Court exercising its power to apply highly subjective attitude in altering the First Amendment and its values? How can that be regulated?

References:

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Chapter One: The Rule of Law

Topic Overview:

The rule of law exists as a guiding framework for pre-determined norms and processes that make neutral and constant decision making possible, and regulates interactions between citizens and higher officials as well. Furthermore, while it gives a certain amount of power to the government, still the rule of law protects the rights and the freedoms of the people. However, there must be a clear distinction between a good and a vague law, where the vague laws fail to determine exact limitations and punishments for the done deeds, creating more space for the officials’ discretion. On the other side, by having exact and detailed terms of violation and punishment established, the clear laws do not invade or limit one’s liberties. Nevertheless, laws and regulations can be repealed or amended by federal, state, or local bodies, or can be invalidated by courts.

Basic structure of the U.S. Court system starts with the area of jurisdiction, and the split into the state and the federal court system. Next, the federal courts mostly hear cases of copyright and libel which are identified as controversies between different states or a state and a citizen of a different state. At lower levels, there are trial courts and courts of appeal, which enable parties to submit a case or file an appeal to a court’s decision. The U.S. Supreme is the highest level of the federal courts system, and mostly serves as an appellant court, but it has the right to choose which cases to review, unlike other appellant courts.

The laws of journalism and mass communication originate from six sources: constitutional law, statutory law, equity law, common law, administrative law, and execution. From the given laws, lawsuits can be either civil or criminal. In criminal lawsuits, the government brings an action against an individual, whereas in civil cases, a plaintiff brings about the case against the defendant who did some kind of harm or damage to the plaintiff.

Defining Key Terms:

Rule Of Law: The framework of a society in which pre-established norms and procedures provide for consistent, neutral decision making.

Overbroad Law: Violates the principles of precision and specificity in legislation.

Stare decisis (precedent): “Stand by the previous decision”.

Jurisdiction: A geographical or topical area of responsibility and authority of a court.

Plaintiff: A person suing the defendant.

Amicus brief: A submission to the court from the amicus curiae, or interested individuals or organizations that are parties in the case.

Moot: A case in which the matter in dispute has been resolved.

Black letter law: Formally enacted, written law that is available in legal reporters or other documents.

Deference: A policy by which courts give weight to the judgment of expert administrative agencies or of legislative policies and strategies.

Demurrer: A request that a court dismiss a case on the grounds that although the claims are true they are insufficient to warrant a judgment against the defendant.

Venire: A location from which potential jurors are drawn, who must then appear in court.

Important Cases:

Marbury v. Madison – Ruled that the Supreme Court is given the power to review acts of Congress and to strike them down as void if they are “repugnant” to the Constitution.

Citizens United v. Federal Election Commission – The court rejected the request from the Government to prohibit political speech in mass media.

Relevant Doctrine:

Four Principles of the Rule of Law

A system of the rule of law exists when:
1. All individuals and private entities are accountable under the law.
2. The laws are clear, public, stable, and just; are applied evenly; and protect fundamental rights.
3. The process by which the law are enacted, administered and enforced is accessible and fair.
4. Justice is delivered in a timely manner by competent, ethical, independent and neutral representatives who serve the public good.

Current Issues and Controversies:

With the newly elected president, the Supreme Court enters the year without a ninth justice. This situation will continue for several weeks into President Trump’s term, as the new justice won’t be approved for the bench. This causes the issue of already several cases having the ruling of 4-to-4, postponing the presented cases.

The lack of the ninth justice at the Supreme Court poses additional challenge, which is a reduced number of accepted cases. As the Court already accepts a very low percentage of the overall number of the submitted appeals and cases, this additional reduction limits more people from accessing the Court. For general public, this only means that there will be more money spent with less chances of succeeding, ultimately resulting in dissatisfaction and anger.

My questions/ concerns:

1. How can the discreteness of the officials be determined in regards to vague laws?
2. In reality, which of the six sources has the most power over mass communication and journalism laws?
3. Although the cybersecurity laws have been established under President Obama, why don’t laws for internet disputes gain more attention in order to establish more clear and strict laws?

References:

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.