Communication Law Test 1
Study Guide
Dr. Myers
Material for the Test
For this test everything we have covered in the readings and in-class is fair game. You need to study everything
we have covered in the readings or in-class. This study guide focuses on the highlights of what we have
covered so far but is not meant to replace your readings. This study guide is a tool to use in addition to the
readings, handouts, notes from class, and lectures.
Rules for the Test
For the midterm there are 50 multiple choice questions worth 2 points each for a total of 100 points.
There are two essay questions. Each is worth 50 points each. I’m expecting maybe one to two paragraph
answers. You need to answer my questions exactly so don’t fill the essay with extraneous information. The
multiple choice and essays count for a total of 200 points.
NOTE: This study guide is not exhaustive of the material that is on this exam. You have read Chapters from
Mass Communication Law in Virginia. I would pay close attention to the information in Chapter 1 about
Virginia’s court system. However, because our main textbook is Communication and the Law you need to look
at that book as your primary source for information. Here are the chapters you’ve read.
Section 1: Court Systems
For this test you should know there is a difference between federal and state courts. You should also know the
difference between trial and appellate courts. Here is the basic information:
Federal Courts deal with FEDERAL LAWS ONLY or lawsuits where the plaintiff and defendant are from
DIFFERENT STATES.
State Courts deal with STATE LAWS ONLY.
Trial courts are where lawsuits are originally filed. This is where there is a jury, the presentation of evidence,
and a verdict. If either party wants to appeal the verdict of a trial they must go to appellate court. These
appellate courts (state or federal) DO NOT hear evidence. They make their decisions based on how the LAW
was applied by the trial court. Appellate courts issue decisions which are also act as laws known as CASE
LAW.
In the United States there are four sources of law: 1) federal and state statutes; 2) federal and state case law; 3)
federal and state constitutions; and 4) federal and state agency regulations and rules.
You also need to look at the handout I gave you in class on federal court systems. Know how someone gets
into federal or state court. Know the differences between subject matter jurisdiction, personal jurisdiction, and
venue.
There will also be some question on client confidentiality. Know that issue from your 50 word response 1.
Section 2: Standing and Liability
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Liability: The first thing you need to know is that liability extends to employees of an organization. This is
known as respondeat superior, which means employers are legally responsible for their employees’ behavior
and actions. So in a case where a company hires a practitioner to do something or if a practitioner is asked to do
something by a supervisor both the employer and employee are libel. It doesn’t matter how many of these
relationships there are. For instance, a company hires a practitioner to run a campaign that is libelous. The
practitioner has an assistant that works on a large part of the account. Who is liable for the libelous campaign?
The company who hired the practitioner, the practitioner, and the practitioner’s assistant.
Indemnity: Ok so how does someone protect themselves from paying for a large lawsuit? This is done
through indemnity. Indemnity is a contract between two people in which one person agrees to pay for the other
person’s legal bills/judgments/etc. This does NOT mean the indemnified person (the person receiving
indemnity) cannot be sued. It also does NOT mean the indemnifier (the person providing indemnity) would
normally be legally responsible. It only means that if an indemnified person is sued then someone else (a.k.a.
the indemnifier) is legally required to pick up the legal tab.
Standing: If you want to sue someone you must have standing. This means that you are affected personally by
the lawsuit you bring. Suppose BP has an oil spill and it ruins the property of Hilton Hotel. If Hilton wants to
recover damages (money) for its damaged property Hilton must bring the suit. No other entity can bring the
suit. Suppose I am outraged that Hilton has lost money by the oil spill because I love Hilton Hotel. I can’t
bring a lawsuit because I didn’t lose anything—Hilton Hotel did.
Section 3: First Amendment Rules and Laws
When talking about the First Amendment laws we are talking about what type of laws the government (NOT
companies, individual citizens, privately held corporations) can or can’t pass regulating speech. Speech can
mean both written words, spoken words, and actions that act as a form of speech.
When looking at speech laws it is important to know that laws that are overly broad (overbreath), vague, or act
as a prior restraint are NEVER constitutional.
Overbroad: these laws are written in a way that it covers too much speech.
Vague: these laws are so poorly written that it’s unclear what type of speech they regulate.
Prior restraints: these laws act in a way that stops speech before it can be spoken. The classic example is a
law where a person must obtain a license to speak or where a person must get prior government approval to
speak. However, other laws can have the same effect as these classic examples of prior restraint. These laws
basically act in such a way that stops people from speaking before they can even start. This is oftentimes
referred to as a “chilling effect.” FOR THE TEST know that if there is a law that requires some type of preapproval or license to speak on CERTAIN TOPICS it is ALWAYS UNCONSTITUTIONAL.
Vagueness, overbreath, and prior restraints are flaws in the ways laws are written. Moving beyond that
technical aspect of speech law you need to be aware of what type of speech receives what level of protection.
Under speech laws there are three levels of protection. They are:
Unprotected Speech: this speech receives no protection under the First Amendment. This is libel, obscenity
and fighting words. This means the government can always pass laws that regulate this type of speech.
Fully Protected Speech: all forms of non-commercial speech that are also not libel, obscenity, or fighting
words are fully protected under the First Amendment. Basically this is everything that is not commercial and
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not unprotected speech. KNOW that under the U.S. Constitution there is the idea that speech is protected
because we want a robust marketplace of ideas in which political and socially important idea/topics/information
is able to be discussed unfettered by government laws. This means the government will have a very, very, very
difficult time passing laws that regulate this type of speech.
Semi-Protected Speech: this area applies to commercial speech, which is the speech that is oftentimes found
in advertising and public relations. Commercial speech is another section of speech that you must know.
However, know that even though it’s protected the government has an easier time passing laws regulating
commercial speech. Basically it’s easier for the government to prove these laws are constitutional.
Section 4: Speech Laws and Tests
***Unprotected speech. This is speech that is never, ever protected under the First Amendment. For this test
you need to know these definitions.
1) Fighting words: speech that induces violence among listeners; “those which by their very utterance
inflict injury or tend to incite an immediate breach of peace” Chaplinsky v. New Hampshire (1942).
For fighting words think about speech that is asking an audience to immediately engage in a violent
manner. For instance “everyone get up and fight those police over there.” It’s got to be immediate and
has to be violent meaning physical endangerment.
2) Libel: untrue statements about an individual that are printed/broadcast. Libel is another term you will
have to know for the midterm. But we know libel or defamation (they mean the same thing) is
unprotected all of the time. The key is when can you prove libel? That’s another question for the
midterm. But KNOW that libel is never protected under the First Amendment.
3) Obscenity: determined by a test articulated by the U.S. Supreme Court in Miller v. California (1972).
For the government to prove something is obscene all three elements must be met to be classified as
obscene. Here are the three elements:
a. Whether the average person, applying contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest. Prurient interest means an unnatural
interest in sexual material. Community standards means that individual communities decide
what those standards are.
b. Whether the work depicts or describes in a patently offensive way sexual conduct specifically
defined by the applicable state law. This means that the material must be sexually offensive
under the law.
c. Whether the work taken as a whole lacks any serious literary, artistic, political or scientific value.
This is the hardest element to overcome because almost anything could be art. However, it can
be met in some instances.
If the law in question does not regulate unprotected speech you use the following tests depending on how the
law is written.
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Content Specific Laws: This test is used if the law specifically regulates the content or subject matter of
speech. These laws are very, very difficult for the government to prove are constitutional. An example would
be a law that says, “It is illegal to discuss issues related to U.S. foreign policy.” This means if the government
passes a law that deals directly with content or subject matter (with the exception of commercial content which
has a different test) it is more than likely going to be found UNCONSTITUTIONAL. Here is the test (the
government must prove all of these elements):
1) Government’s regulation serves a compelling interest (meaning a really, really important interest
such as safety, national security)
2) The law advances the government’s compelling interest (there has to be a direct, tight relationship
here. This cannot be speculative, but must be a close relationship)
3) The law must be narrowly tailored to accomplish this compelling government interest (means that
the law is the most effective way of achieving this compelling interest)
4) The law uses least restrictive means (means that there cannot be a better law out there to achieve this
goal. The law used does not affect any more speech than necessary)
Content Neutral Laws: This test is used if the law regulates something other than speech but because of the
way the law is written or implemented it affects speech. For instance a law that bans defacing driver’s licenses
is written to keep people from destroying their license. However, it could affect speech rights if someone
wanted to burn their driver’s license in a protest. If they protested (i.e. engaged in symbolic speech) by burning
their license they are violating the law. Remember these laws only incidentally affect speech as the law really
is about something else. For a content neutral law to be found constitutional the government must prove all of
the following elements.
1) The law furthers an important or substantial government interest. This interest is important
but not really, really, important like that required in content specific regulations.
2) If the government interest in the law is unrelated to the suppression of free expression.
This means that the law is really trying to regulate something other than speech.
3) If the incidental restriction on alleged First Amendment freedoms in the law is no greater
than essential to the furtherance of that interest. This means that the law cannot be so broad
that it affects a lot of speech. It means that the law affects speech in a very narrow situation.
Time, Place and Manner Restrictions: This test is used if the law is NOT about regulating content but rather
regulates where, when and how events involving speech can take place. The classic example of this is a parade
permit or operating hours of a public park. For a time, place, and manner restriction to be found constitutional
the government must prove:
Time Place and Manner Test: the laws that affect time place and manner of speech must be:
a) The law is Content neutral-meaning they don’t specifically apply to any particular type of speech
rather it just applies to time, place or manner
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b) The law must be narrowly tailored to achieve the government purpose (means that the law can’t
restrict any more speech than necessary).
c) The time place and manner law must serve a significant government interest. This means the
interest is important, but not as important as what content specific speech regulations test requires.
d) The law leaves other alternative channels for speech open (meaning people wanting to engage in
speech must have alternative options for speak, i.e. if the street is closed the event could occur at
another location).
An important aspect of these laws is that this only applies to public forums. That means these time, place, and
manner evaluations only apply to traditional gathering places or areas where the government has designated as
gathering places. This these would NOT apply to non-public forums.
Non-public forums (areas that are not traditionally open to speech such as mailboxes or cafeterias) can be
limited if the government can show that the regulation is reasonable and not designed to restrict a particular
point of view.
Section 5: Libel Laws: You should know the basic elements of libel and the affirmative defenses of libel. For
this test the easiest way to understand libel (i.e. defamation) is that it is a written or spoken statement that is
untrue and damaging to another person’s reputation. Like all other civil lawsuits in the U.S., libel suits are for
money damages. For someone to prevail in a libel suit they must prove all of the following elements. In class I
often would say this is a prima facie case for libel. This means that these are the elements that must be proven
to make a successful libel case.
***Elements for Libel***
1) Offending statement was made by the defendant (the person who is being sued)
2) The statements are published to at least one other person
3) The plaintiff (person who is suing over the libel) was identified in the statement
4) There is causation between reputational damage and the libelous statements
5) The person making the statements did so with the required degree of fault (if the plaintiff is a
public figure this mean the defendant must have used actual malice. If the plaintiff is a regular citizen
then the standard is negligence or something less.)
Ok, so for number 5 this is where you either use actual malice or you use negligence. For the midterm you only
need to know that actual malice is required when plaintiffs (i.e. the subject of the libel) are public officials,
public figures, or limited purpose public figures. If the person who is libeled is a regular person all you need to
show is that the defendant published the material.
***Actual malice is a level of fault that requires the plaintiff (the person bringing the lawsuit who was
defamed) to prove that the defendant (the person who is being sued who said the defamatory statement) made
the comments either knowing they were false or acting with a reckless disregard for the truth.
There are also affirmative defenses to libel (these are defenses the defendant can prove to prove he/she did not
commit libel.
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1) Truth: argue the statements were not false and in fact were true
2) Absolute privilege: this is privilege where the forum exempts people from libel. This includes
Congress, courtrooms, or official government meetings.
3) Fair comment: these are people’s opinions about issues that are matters for public debate. An opinion
isn’t defamatory because it isn’t about facts; it’s about a person’s individual opinion. For instance,
someone says “the Governor doesn’t do his job well and shouldn’t be re-elected” is expressing an
opinion. This is different from libel where a comment like “the Governor takes bribes” is presented as a
fact not an opinion.
You also should know there are three levels of liability for libel:
1) Primary publisher: person who actually prepares the content of the libel.
2) Republished: anyone who passes along the libel. This could be republication such as a re-tweet.
3) Secondary publisher: a person who helps circulate the material. Think of a store that sells the libelous
material. However, this person must have knowledge if there are going to be held legally accountable.
SAMPLE QUESTIONS
Your 50 word responses and quizzes are examples of how I ask questions.
For the multiple choice you questions will look like this?
Which of the following laws is an example of a constitutionally protected time, place and manner restriction?
a) A public park has an ordinance that bans any political rally from 8 a.m. to 5 p.m. but allows all other
forms of gathering
b) A public park requires a license to hold a gathering of more than 25 people
c) A public park bans any meeting that may be deemed offensive
d) A public park requires those seeking a license to submit any speeches ahead of time for pre approval.
Sample essays will look like you 50 word response from response 1. Here it is again to refresh your memory.
Your answer for the test can be longer than 50 words.
Suppose you are a public relations practitioner who works in a boutique firm where you are the CEO. One day
the CEO Atlantic Oil Company comes to you and asks if you will represent them during an upcoming
lawsuit. Atlantic has a history of cutting corners on safety for its oil refineries. Three months ago one of
Atlantic's oil refineries in Brownsville, Texas exploded killing 8 employees and seriously injuring 50
others. You ask the Atlantic Oil CEO what caused the explosion. The CEO of Atlantic says, "Well....the
employees' families say we didn't maintain proper safety standards, which to be honest we probably
didn't. However, we're fighting this lawsuit because they want over 50 million dollars for each victim plus
medical and pain and suffering for the 50 injured workers. We can't pay all that, especially in light of declining
gas prices." You agree to do PR for Atlantic.
Part of your strategy is to highlight Atlantic's efforts specifically the community programs set up by Atlantic for
those families affected by the explosion. You meet with Atlantic's legal team once, and they say that you need
to run all press releases through their firm. You sometimes comply, sometimes not depending on how fast you
want the release issued. You deflect any questions about the lawsuit when asked by the press, but state that
Atlantic Oil is very concerned about the welfare of its employees and safety of its refineries.
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