Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P57 pptx

to the organization’s exercise of its free speech rights. Justice CLARENCE THOMAS, in his majority opinion, addressed the freedom-of-speech ar- gument. He noted that the school was a limited public forum and that the state, therefore, was not required to permit persons “to engage in every type of speech.” However, the state’s ability to restrict speech was not unlimited. In addition, the state could not discriminate against speech on the basis of viewpoint. Justice Thomas wrote that the school district decision had unlawfull y imposed this requirement. He pointed to recent Court decisions that had forbidden states to prevent religious groups from using public facilities or to receive funding for an undergraduate organization. Statutes that prohibit the desecration of the U.S. FLAG have been found to restrict free expression unconstitutionally. In Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), the Court overturned Gregory L. Johnson’s conviction for burning a U.S. flag during a demonstration. Johnson’s actions were communicative conduct that warranted First Amendment protection, even though they were repugnant to many people. Similarly, in United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990), the Court struck down the federal Flag Protec- tion Act of 1989, 103 Stat. 777, 18 U.S.C.A. § 700, stating that the government’s interest in passing the act had been a desire to suppress free expression and the content of the message that the act of flag burning conveys. The U.S. Supreme Court has generally struck down prohibitions on nudity and other erotic, but not obscene, expressive conduct. However, in Barnes v. Glen Theatre, 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991), the Court upheld a ban on totally nude dancing, on the ground that it was part of a general ban on public nudity. While recognizing that nude dancing generally has been considered protec ted expressive conduct, the justices pointed out that such activity is only marginally within the perimeter of First Amendment protection. In City of Erie v. Pap’sA.M.,529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000), the U.S. Supreme Court upheld a local zoning ordinance that banned nude-dancing clubs within the city. It found that freedom of speech had not been unconstitutionally restricted be- cause the ordinance did not ban the expressive conduct of nude dancing but only the means for expressing it within the city. It found that the city had good grounds for banning nude-dancing clubs; these were secondary effects on the community rather than the dancing itself. Therefore, the city had the authority to restrict the location of such clubs. Commercial Speech Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression. Generally, the First Amendment protects commercial speech that is not false or misleading and that does no t advertise illegal or harmful activity. Commercial speech may be restricted only to further a substantial govern- ment interest and only if the restriction actually furthers that interest. In Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S. Supreme Court held that a statute banning promotional advertising by public utilities was unconstitutional. That case set forth a “general scheme for assessing government restrictions on commercial speech.” Commercial speech will be protected by the First Amendment if: (1) it concerns lawful activity and is not misleading; (2) the asserted govern- ment interest is not substantial; (3) the regula- tion does not directly advan ce the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest. The U.S. Supreme Court has struck down bans on drug advertising, (Thompson v. Western States Medical Center, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002), and TOBACCO advertising, Lorillard Tobacco Corp. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), using this test. Defamation and Privacy In New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court declared that the First Amend- ment protects open and robust debate on public issues, even when such debate includes “vehe- ment, caustic, unpleasantly sharp attacks on government and public officials.” In Sullivan, a public official claimed that allegations about him that had appeared in the New York Times were false, and he sued the newspaper for libel. The Court balanced the plaintiff’s interest in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF SPEECH 549 preserving his reputation against the public’s interest in freedom of expression, particularly in the area of political debate. It decided that, in order to recover damag es, a public official must prove actual malice, which is knowledge that the statements were false or that they were made with reckless disregard of whether they were false. Where the plaintiff in a DEFAMATION action is a private citizen who is not in the public eye, the law extends a lesser degree of constitutional protection to the statements at issue. Public figures voluntarily place themselves in positions that invite close scrutiny, whereas private citizens have a greater interest in protecting their reputation. A private citizen’s reputational and privacy interests tend to outweigh free speech considerations and, therefore, deserve greater protection from the courts (see Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]). FURTHER READINGS Amar, Vikram David, ed. 2009. The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate. Amhurst, N.Y.: Prometheus Books. Haiman, Franklyn S. 1993. Speech Acts and the First Amendment. Carbondale: Southern Illinois Univ. Press. Hall, Kermit L. 1989. The Magic Mirror: Law in American History. New York: Oxford Univ. Press. Heyman, Steven J. 2008. Free Speech and Human Dignity. New Haven, Conn.: Yale University Press. Wagman, Robert J. 1991. The First Amendment Book. New York: World Almanac. CROSS REFERENCES Broadcasting; Censorship; E-Mail; Fairness Doctrine; First Amendment; Freedom of the Press; Hate Crime; Movie Rating; Overbreadth Doctrine; Prior Restraint; Privacy; Roth v. United States; Symbolic Speech; X Rating. FREEDOM OF THE PRESS Freedom of the press is the right, guaranteed by the First Amendment to the U.S. Constitution, to gather, publish, and distribute information and ideas without government restriction; this right encompasses freedom from prior restraints on publication and freedom from censorship. The FIRST AMENDMENT to the U.S. Constitu- tion reads, in part, “Congress shall mak e no law abridging the FREEDOM OF SPEECH,orof the press.” The courts have long struggled to determine whether the Framers of the Consti- tution intended to differentiate press freedom from speech freedom. Many have concluded that FREEDOM OF THE PRESS derives from freedom of speech. Although some cases and some legal scholars, including Justice POTTER STEWART,ofthe U.S. Supreme Court, have advocated special press protections distinct from those accorded to speech, most justices believe that the freedo m of the press clause has no significance indepen- dent of the freedom of speech clause. The Court explained its reasoning in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). According to Chief Justice WARREN E. BURGER, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection. Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press and that there is no need to distinguish between the two rights: Because the First Amendment was meant to guarantee freedom to express and commu- nicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. The Court has generally rejected requests to extend to the press PRIVILEGES AND IMMUNITIES beyond those available to ordinary citizens. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), it held that a journalist’s privilege to refuse to disclose information such as the names of informants is no broader than that enjoyed by any citizen. As long as an inquiry is conducted in GOOD FAITH , with relevant questions and no harass- ment, a journalist must cooperate. Justice Stewart’s DISSENT in Branzburg urged the Court to find that a qualifi ed journalistic privilege exists unless the government is able to show three things: (1) probable cause to believe that the journalist possesses information that is clearly relevant; (2) an inability to obtain the material by less intrusive means; and (3) a compelling interest that overrides First Amend- ment interests. In an unusual break with tradition, several circuit courts have applied Stewart’s test and ruled in favor of journalists who have sought special First Amendm ent protection. Nonetheless, the Supreme Court has steadfastly held to its decision in Branzburg and shows no sign of retreating from its GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 550 FREEDOM OF THE PRESS position that the First Amendment confers no special privileges on journalists. The Supreme Court’s reluctance to recog- nize a journalist’s privilege has not stopped lower federal courts from doing so. A handful of FEDERAL circuits and the district courts in those circuits as of 2009 recognize a journalist’s right not disclose the identity of his or her confiden- tial informants. At the state level, legislatures in more than 25 states have enacted reporter “shield laws” that protect journalists from being forced to publicly reveal their sources. Addi- tionally, many state courts have interpreted their state constitutions as conferring upon journalists a privilege to maintain their sources’ confidentiality. However, the privilege recog- nized by state and federal jurisdictions is not ABSOLUTE. Journalists may still be compelled to reveal the identity of a confidential informant if the party seeking disclosure can make a showing of relevance, need, and the unavailability of the information from other, non-journalist sources. Despite the inroads journalists have made in many state and federal jurisdictions, a large number of jurisdictions have declined to recognize a reporter’s privilege, as New York Times reporter Judith Miller realized when she was jailed for CONTEMPT of court after refusing to disclose the identity of a confidential source in the Valerie-Plame-Scooter-Libby affair. The case began when Chicago Sun-Times columnist Robert Novak published a column disclosing that Valerie Plame was a covert operative of the CENTRAL INTELLIGENCE AGENCY (CIA), specializing in gathering intelligence on WEAPONS OF MASS DESTRUCTION (WMD). Based on Plame’s recom- mendation, Novak revealed, the White House had appointed Joseph Wilson, Plame’s husband, to investigate a British intelligence report that Iraq president Saddam Hussein had attempted to purchase uranium from Niger for the purpose of building a nuclear bomb. After making the trip to Niger in February 2002, Wilson concluded that the intelligence report was wrong and that Hussein had never contacted Niger about purchasing uranium. However, President GEORGE W. BUSH,inhis January 28, 2003, State of the Union Address, repeated the substance of the British intelligence report as a justification for the United States taking possible military against Iraq. Following the invasion, Wilson wrote a series of opinion pieces in the New York Times questioning the war’s factual basis. In one piece, Wilson argued that President Bush had misrepresented the pre- war intelligence by suggesting that the Iraqi regime had sought to purchase uranium from Niger. Plame and Wilson then filed a lawsuit against Irve Lewis “Scooter” Libby, an assistant to President Bush and chief of staff to VICE PRESIDENT Dick Cheney, for leaking the covert identity of Plame to members of the press. A federal GRAND JURY was also convened to investigate whether the leak constituted a crime, and it subpoenaed Judith Miller, a New York Times reporter w ho was believed to have met with Libby two days after Wilson’s allegations against Bush were published in the Times.Libby was suspected of disclosing the covert status of Plame as payback for her husband’s article, which had made the president look bad. Although Miller admitted that a confidential informant had given her the information about Plame’s covert status, she refused to identify the name of that informant and was subsequently jailed for contempt of court by a federal district court. The U.S. Court of Appeals for the DISTRICT OF COLUMBIA upheld the contempt CITATION against Miller’s assertion of “reporter’s privi- lege” (In re Grand JURY SUBPOENA, Judith Miller, 438 F.3d 1141 [2006]). In rejecting the claim of privilege, the CIRCUIT COURT relied on the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L. Ed. 2d 626 (1972). In that case, the nation’s high court observed that grand juries operate under a longstanding principle that “the public has a right to every man’s evidence, ” and “the only testimonial privilege for unofficial witnesses that is rooted in the federal constitution is the FIFTH AMENDMENT privilege against compelled self-incrimination.” In the final analysis, the circuit court said it could not “seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or EVIDENCE thereof, on the theory that it is better to write about a crime than to do something about it.” As of the summer 2009, experts expected the Supreme Court to revisit this issue in the future and reconcile the differing views of the lower federal courts. Laws that affect the ability of the press to gather and publish news are suspect, but not automatically unconstitutional. In Cohen v. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF THE PRESS 551 Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991), reporters for two Twin Cities newspapers were sued for breach of contract when they published the name of their source after promising confidentiality. The reporters claimed that the law infringed their First Amendment freedom to gather news unencumbered by state law. The Court held that the law did not unconstitutionally under- mine their rights because its enforcement imposed only an INCIDENTAL burden on their ability to gather and report information. Writing for the majority, Justice BYRON R. WHITE stated that laws which apply to the general public and do not target the press do not violate the First Amendment simply because their enforcement against members of the press has an incidental burden on their ability to gather and report the news: “Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or orga- nizations.” The Cohen decision indicates the Court’s continued unwillingness to extend special First Amendment protection to jour- nalists. Generally, the First Amendment prohibits PRIOR RESTRAINT, that is, restraint on a publication before it is published. In a LANDMARK decision in Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court held that the government could not prohibit the publication of a newspaper for carrying stories that were scandalous or scurrilous. The Court identified three types of publications against which a prior restraint might be valid: those that pose a threat to national security, those that contain obscene materials, and those that advocate violence or the overthrow of the government. The government argued that publication of certain material posed a threat to national security in the so-called Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). There, the government sought an INJUNCTION against newspapers that were planning to publish classified material concerning U.S. policy in Vietnam. The Court found that the government had not proved an overriding government interest or an extreme danger to national security if the material were to be published. The justice s reiterated their position that a request for a prior restraint must overcome a heavy presumption of unconstitu- tionality. The Court is steadfast in its holding that prior restraints are among the most serious infringements on First Amendment freedoms and that attempts to impose them must be strictly scrutinized. In Nebraska Press Ass’nv. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), the Court overturne d a state court’s attempt to ban the press from a criminal trial. The Court held that gag orders, although not per se invalid, are allowable only when there is a CLEAR AND PRESENT DANGER to the administration of justice. Freedom of the press, like freedom of speech, is not absolute. Notwithstanding the limitations placed on it, the press exercises enormous power and influence and is burdened with commensurate responsibility. Because journalists generally have access to more information t han does the average individual, they serve as the eyes, ears, and voice of the public. Some legal scholars even argue that the press is an important force in the democratic system of checks and balances. In the wake of the September 11, 2001, attacks, the White House placed pressure on the five major TELEVISION networks not to broadcast videotaped statements by terrorist mastermind Osama bin Laden and his associates. The networks had shown a videotape of bin Laden, and this angered the White House. In early October 2001, the networks agreed not to show such statements again without reviewing them first. The decision came after a conference call among U.S. national security adviser Condo- leezza Rice and the heads of the networks. The White House feared that broadcasts from suspected terrorists could contain anything from incitement to coded messages. This agreement aroused concerns that the press was forfeiting its responsibility to report all of the news. Com- mentators noted that the rest of the world would see the bin Laden tapes via television and the INTERNET, and that the security concerns raised by the U.S. government thus would have little impact. The balance between restraint and respon- sibility continued to be tested during the war against TERRORISM and the 2003 invasion of Iraq. In contrast to the 1991 Gulf War, where the press was kept away from the battlefield, the war GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 552 FREEDOM OF THE PRESS in Iraq featured “embededded” journalists, who traveled and reported in real time among the U.S. forces. However, the press was restricted to disclosing only certain types of information due to security concerns. FURTHER READINGS “News Media, Administration Struggle Over Press Freedom, National Security.” 2001. Associated Press (October 12). Wagman, Robert J. 1991. The First Amendment Book. New York: World Almanac. Walters, William E. 2008. “Freedom of the Press and the Rule of Law: Challenged Values in a Changing Marketplace.” Colorado Lawyer 38 (March). Werhan, Keith. 2008. “Rethinking Freedom of the Press after 9/11.” Tulane Law Review. 82 (March). CROSS REFERENCES Broadcasting; Cameras in Court; Evidence “Journalists’ Privilege” (In Focus); Fairness Doctrine; Federal Commu- nications Commission; First Amendment; Libel and Slander; Mass Communications Law; New York Times Co. v. Sullivan; Pretrial Publicity; Sheppard, Samuel H.; Shield Laws; Trial. FREEHOLD A life estate, an interest in land the duration of which is restricted to the life or lives of a particular person or persons holding it, or an estate in fee, an interest in property that is unconditional and represents the broadest ownership interest recog- nized by law. In order to be categorized as a FREEHOLD,an estate must possess the characteristics of (1) immobility—in the sense that the property must be either land, or some interest derived from or affixed to land—and (2) INDETERMINATE duration. DETERMINABLE freeholds are life estates created by language that provides that the estate is to terminate automatically upon the occurrence of a s pecified event. FREIGHT The price or compensation paid for the transpor- tation of goods by a carrier. Freight is also applied to the goods transported by such carriers. The liability of a carrier for freight damaged, lost, or destro yed during shipment is deter- mined by contract, statute, or TORT LAW. The responsibility for the payment of freight is a subject of a term of a sales contract between the buyer and seller of the goods to be shipped. When a contract contains a c.f. & i. provision, the buyer acce pts liability for paying the cost of freight in addition to the costs of the goods and INSURANCE on them. FREIGHT FORWARDER An individual who, as a regular business, assembles and combines small shipments into one lot and takes the responsibility for the transportation of such property from the place of receipt to the place of destination. The role of a FREIGHT FORWARDER is to collect and consolidate shipments that are less than a carload or truckload and obtain COMMON CARRIER transportation for the long-haul transport of the property, which is owned by individual carload or truckload shippers. Such a forwarder ordi- narily has the same liabili ty for loss as a common carrier. CROSS REFERENCE Shipping Law. v FREUND, ERNST ERNST FREUND was a brilliant legal scholar who oversaw the development of U.S. administrative law at the turn of the twentieth century. A social reformer, Freund was an early proponent of social research as a means of shaping the ▼▼ ▼▼ Ernst Freund 1864–1932 18501850 19001900 19251925 19501950 18751875 ❖ 1864 Born, New York City 1861–65 U.S. Civil War ◆ 1884 Earned law degree from University of Heidelberg ◆ 1894 Joined University of Chicago faculty 1904 Police Power: Public Policy and Constitutional Rights published 1908 Helped found the Immigrants' Protective League 1914–18 World War I 1917 Standards of American Legislation published ◆ ◆ ◆ 1903–32 Served as full professor at U. of Chicago Law School ❖ 1932 Died, Chicago, Ill. ◆ 1928 Administrative Powers over Persons and Property published 1939–45 World War II GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREUND, ERNST 553 content of U.S. law. As a political progressive, he also was an articulate supporter of free speech rights under the FIRST AMENDMENT of the U.S. Constitution. Freund was born in New York City on January 30, 1864, to German American parents. He attended the University of Berlin and the University of Heidelberg, receiving a law degree from the latter in 1884. He went to New York and practiced law there from 1886 to 1894. Freund entered academe in 1892 when he became professor of administrative law and municipal corporations at Columbia University. (He was also a doctoral student at Columbia’s School of Political Science; he received his Ph.D. in 1897.) In 1894, he began a long association with the University of Chicago, accepting a position in the political science department as a professor of ROMAN LAW and JURISPRUDENCE.In 1903, he joined the faculty of the university’s newly opened law school. Freund taught courses in social legislation and proposed a new field, the “science of legislation,” to underscore the connection between political science and law. Freund became a prominent figure at the law school and served as the John P. Wilson Professor of Law from 1929 to 1932. One of his many achievements was the establishment of the University of Chicago’s highly regarded graduate-level social services program, the first such program in the nation. Involved in several professional organizations, Freund served as president of the American Political Science Association in 1915. Freund’s renown in legal circles grew as a result of his cogent writing on the function and parameters of administrative law (the body of statutes, regulatory rules and regulations, and court decisions implem ented by administrative and government agencies). Freund’s most famous publication on the subject was Police Power: Public Policy and CONSTITUTIONAL Rights, published in 1904. Freund analyzed the limita- tions imposed on legislative power by the FOURTEENTH AMENDMENT of the U.S. Constitution. He advocated a system of legal regulations that balanced individual rights against business and property rights. Freund’s interest in statutory drafting led to a position on the Commission on Uniform State Laws in 1908. Freund created model statutes to bolster the CIVIL RIGHTS of married women, and offered commentary on DIVORCE, guardianship, ILLEGITIMACY, LABOR LAW, and child labor. He also produced a handbook on legislative drafting in 1921 and offered drafting INSTRUCTIONS to the AMERICAN BAR ASSOCIATION. In 1928 Freund published Administrative Powers over Persons and Property, a TREATISE on the distinctions between the power held by government, individuals, and property. In other works, Freund wrote about the necessity of protecting what he termed the dependent class, the less privileged members of society who were vulnerable to exploitation. A man of action, he helped organize the Immigrants’ Protective League in 1908 and served as president of that organization for several terms. A staunch supporter of free speech, Freund published articles on the specific rights guaran- teed by the First Amendment of the U.S. Constitution. He believed that the open discus- sion of public affairs was a crucial underpinning of U.S. society. Freund married Harriet Walton on May 13, 1916. The couple had two children, Nancy Freund and Emily Lou Freund. In 1931, Freund was awarded an honorary doctor of laws degree from the University of Michigan. He died the following year, in Chicago, on October 20, 1932. FURTHER READINGS Firmage, Edwin Brown. 1963. Ernst Freund, Pioneer: The Contributions of Ernst Freund to Administrative Law. Chicago: Univ. of Chicago Press. Freund, Ernst. 2006. Standards of American Legislation: An Estimate of Restrictive and Constructive Factors. Clark, NJ Lawbook Exchange. Kraines, Oscar. 1974. The World and Ideas of Ernst Freund. Birmingham: Univ. of Alabama Press. THE STATE TAKES PROPERTY BY EMINENT DOMAIN BECAUSE IT IS USEFUL TO THE PUBLIC , AND UNDER POLICE POWER BECAUSE IT IS HARMFUL . —ERNST FREUND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 554 FREUND, ERNST . interest in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF SPEECH 549 preserving his reputation against the public’s interest in freedom of expression, particularly in the area of political. published 1939 45 World War II GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREUND, ERNST 553 content of U.S. law. As a political progressive, he also was an articulate supporter of free speech. 2003 invasion of Iraq. In contrast to the 1991 Gulf War, where the press was kept away from the battlefield, the war GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 552 FREEDOM OF THE PRESS in