Iii holding no 1 gertz requirement of actual malice

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iii. Holding : No. 1. Gertz requirement of actual malice only applies to suits involving private figures and matters of public concern. a. So the state standard can award compensatory damages even absent a showing of actual malice. But! Presumed/punitive damages require actual malice. b. P has burden of proof 2. It is evident that this does not fall under “matters of public concern.” 3. Matters NOT of public concern: presumed and punitive damages don’t require proof of actual malice. c. Rule : if the matter is not of public concern, and it does not involve a public official, the common law controls NOT the federal rules from SCOTUS. 3. Defamation Exceptions : a. if you say something about someone that is SO clearly hyperbole that no one would believe it no liability b. A true opinion cannot be defamation Plaintiff is: Compensatory Damages Presumed or Punitive Damages Must P prove falsity? Public official/figure Actual malice ( Sullivan ) Actual malice ( Sullivan ) Yes ( Sullivan ) 35
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Private person: matter of public concern More than strict liability ( Gertz ) Actual malice ( Sullivan ) Yes Private person: NOT MOPC Strict liability? ( Bradstreet concurrence) Less than actual malice ( Bradstreet ) Probably not? v. Commercial Speech 1. Commercial speech became protected by the First Amendment in 1975 in Bigelow v. Virginia . a. Speech is not stripped of First Amendment protection merely because it appears as a commercial advertisement. 2. Central Hudson Gas & Electric v. Pub. Serv. Com. a. Facts : Public Services Commission in NY ordered electric utilities in New York State to cease all advertising that promotes the use of electricity. The Appellee based this regulation on a finding that the interconnected utility system in New York State does not have sufficient fuel stocks to continue furnishing all customer demands for the 1973-74 winter. In 1976 the fuel shortage ended. But the Commission continued the ban. b. Issue : does this ban of advertising violate the 1st and 14th Ams? c. Holding : Yes. i. Is the expression protected by the First Amendment? 1. It must concern lawful activity and not be misleading. ii. Whether the asserted governmental interest is substantial? iii. IF YES TO BOTH: 1. Whether the regulation directly advances the governmental interest asserted; AND 2. Whether it is not more extensive than is necessary to serve that interest? iv. Burden of proof: on Government v. The ban in question failed to satisfy the final prong because there were other alternatives to promote energy conservation vi. Spending Money as Political Speech 1. Citizens United v. Federal Election Committee a. Facts : Federal law prohibited corporations and unions from expressly advocating for or against a candidate within a 36
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certain amount of time leading up to primary and general elections. P was a nonprofit organization produced a documentary against Hillary right around the 2008 DNC primary. P asserted that this was a violation of their freedom of speech.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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