Com Law

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Libel

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(defamation) used to be the written version, now it is a term that is both print and broadcast.

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Libel is what kind of law

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common law.

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Civil Tort

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a legal wrong not arising out of contractual matter.

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What percent of cases make it to trial?

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90-95 %

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Civil case walk-through:

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Complaint
Served
Answer
Counterclaim

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Complaint

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(a legal document that lists alleged facts that constitute a violation of common law.)

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Answer

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Filed by the defendant, denying the facts or allegations

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Counterclaim

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Defendant files this if they want to sue the plaintiff in the same suit.

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Complaint
Served
Answer
Counterclaim

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Pleadings

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Discovery

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Each side tries to determine facts/legal theories of other side.

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4 Kinds of Discovery

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1. Production of Documents
2. Request for Admission
3. Interrogatories
4. Depositions

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Production of Documents

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Reporters notes, emails etc. from the news organization.

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Request for Admission

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: Either side asks other side to admit the following statements are true. (Admit or deny) – An opportunity to limit the number of issues in controversy. Don’t have to prove things already admitted.

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Interrogatories

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Written questions that one party delivers to another party. Musty be under oath and in writing.

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Depositions

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Can be of any potential witness and are oral questioning of witness, under oath and prior to the trial. Are transcribed and made part of the court file.

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Motion for Summary Judgement:

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Either side files this to ask judge to look at all the facts, see that there is no way the opponent can win and declare the winner before trial.

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Five elements of libel suit

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1. Publication
2. Indentification:
3. Defamation
4. Fault: Two kinds of fault:

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Publication

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: Has to be some form of publication in writing, broadcast or the spoken word, of the statement. Publication has to be in the presence of a third party, can’t libel a dead person.

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Indentification:

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Has to be clear that the plaintiff is the target of the statement. Can identify person by name, position or implication.

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Defamation

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What was said has to be untrue or damaging to the person’s reputation.

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Fault

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a. Actual Malice
b. Negligence

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Actual Malice

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Publishing a falsehood with knowledge of it’s falsity or with reckless disregard for the truth.
- if prove this, damages are presumed.

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Negligence: four elements

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1. duty: duty to speak truth.
2. A breach of that duty by the defendant.
3. That breach had to be a proximate cause of damage. (Has to be a connection between the lie and the damage.)
4. Damage

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Damage

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Plaintiff has to prove he/she was damaged. (not true in every case) Some connection between libel and bad thing that happened to plaintiff, can either be tangible or intangible.

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3 Defenses against libel:

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1. Truth
2. Privilege
3. Fair Comment & Criticsm:

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Truth

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can’t be true and libelous

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Privilege

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if reporters followed standards, for info from legal sources or venues, than OK. You can report from governmental proceedings and recors with no fear of libel.

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Fair Comment & Criticsm:

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Opinion defense,” if something is opinion and cannot be proven one way or another it can’t be libelous.

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Ohio’s landmark case on upholding the opinion defense)

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(Viel v. Plain Dealer —

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(Viel v. Plain Dealer —

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Ohio’s landmark case on upholding the opinion defense)

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If you defend a news organization you want to know these things:

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1. The status of the plaintiff: Public official or Private Citizen. This status is determined by motions for summary judgement. You want them to be public figures or officials because then they have to prove actual malice instead of just negligence.

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Limited Purpose Public Figure

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Sombody who puts themselves in a public light for a particular issue, but is a private citizen in every other aspect of their life.

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Chiqueta banana v. The Inquirer:

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Facts: Reporter stole voicemails from Chiqueta. Reporter was fired and testified against a source.
Holding: Inquirer settled before trial
Reasoning: The issue was how the materials were gathered. In this case it was illegally.

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Libel per se:

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words themselves that hurt a persons reputation like thief, rapist etc.

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Libel per quoi:

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Not immediately apparent that the words are libelous, must know additional facts to understand the defamation.

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Pleaded in the Alternative

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In the lawsuit it says we think this is libel but if not it is invasion of privacy or vice versa.

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3 sources of right to privacy:

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1. Constitutional
2. Statutory
3. Common Law

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Constitutional Right to Privacy

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“right to privacy,” not in constitution however Supreme Court has inferred a constitutional right to privacy which started in birth control cases.
Griswald v. Conneticut (1965) - court found right to privacy about reproductive processes
Roe v. Wade: First landmark abortion case.
Justice Blackman said women have a right to control reproductive processes.

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Statutory

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Hippa Laws, goes to protecting individual health records.
FERPA laws: laws to protect rights of students. These are interpreted liberally by students and stringently by record holders. Each state says what is a public record and what isn’t.

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Four Categories of Common law Right to Privacy

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1. Intrusion:
2. Public Disclosure of private embarrassing facts:
3. False Light:
4. Appropriation:

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1. Intrusion:

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ppl have right not to be intruded on. The way in which journalists are allowed to gather information.

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Public Disclosure of Private embarrassing facts

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You publish something that may be truth but is not newsworthy and is embarrassing or offensive to a reasonable person.

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3. False Light:

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Area that is most similar to libel. You publish something with some degree of falsity. False light not recognized by every state.

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4. Appropriation

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. Public Disclosure of private embarrassing facts:
Taking ones presence, likeness or voice and converting it for your own purpose or profit.

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Reasonable expectation of privacy:

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You have this on your person and in your home; A place where you should expect not to be intruded upon.

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Intrusion can be wiped away with

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consent.

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The three intrusion cases are:

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Determann,
Wilson v. Lane,
Burgher v.
Bartenicki v. Vopper.

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False Light cases are

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Time v. Hill and Cantell v. Forest.

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Griswald v. Conneticut (1965)

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- court found right to privacy about reproductive processes

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Roe v. Wade:

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First landmark abortion case.

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New York Times v. Sullivan (1964)

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Fact Summary:
Montgomery, Alabama city commissioner Sullivan claimed ad in NYT that alleged police in South were performing misconduct said it ruined his reputation.

Holding: NYT

Issues: Libel, fault, identification

Reasoning:
Supreme Court said there was no proof that the ad referred to Sullivan. Ruled that public officials who sue for libel or slander must prove actual malice, meaning publishing a falsehood with knowledge of its falsity, or with reckless disregard for the truth.
Defined public officials as selected officas or ppl in government with major decision making power.

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Gertz v. Welch (1974)

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Fact Summary:
Getz represented the black family whose son was shot by a police officer. The officer was convicted of second degree murder and an article ran in American Opinion saying Getz was part of a communist conspiracy theory to discredit police.

Holding: Gertz

Issues: Libel, First Amendment

Reasoning:
Supreme Court said that in all libel cases involving matters of public concern the plaintiff must prove some degree of fault. Replaced strict liability legal doctrine, which said whenever a wrong occurs its perpetrator will be held strictly responsible.
Without this protection the Supreme Court said the media would be inhibited from covering controversial issues that should be reported. This protection required protecting First Amendment rights. Private citizens as well as public figures had to prove some fault on the part of the media to win libel case.
The Supreme Court set up two levels of fault for the media:
1. Negligence: failing to adhere to standards of good journalism by doing such things as checking the facts.
2. Actual Malice: meaning publishing a falsehood with knowledge of its falsity, or with reckless disregard for the truth.
Gertz was a private figure because he did nothing to thrust himself into the limelight. Therefore all he had to do was prove negligence. In negligence cases have to prove damages.

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Philadelphia Newspapers v. Hepps (1986)

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Fact Summary:
Philadelphia Inquirer had published several articles linking beverage distributor Maurice Hepps to organized crime. When he sued for libel, he was unable to prove the charges false, but neither could the reporters fully document the charges to prove them true.

Holding: Philadelphia Newspapers

Issues: Libel, First Amendment

Reasoning:
Conclusively proving that type of charge can be difficult an to prevent self-censorship of important stories by journalists, those who sue for libel must now bear the burden of proving the story false, at least when issues of public concern are involved.
Justice Sandra Connor said, “common law presumption that defamatory speech is false cannot stand when plaintiff seeks damages against a media defendant for speech of public concern.”

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Rosenblatt v. Baer [1966]

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Fact Summary:
A.D. Rosenblatty, a New Hampshire newspaper columnist had accused a former supervisor (Baer) of a country skiing and recreation area of mishandling public funds.

Holding: Rosenblatt

Issues: Libel, First Amendment

Reasoning:
Court said that the actual malice requirement would apply to minor public officials.
“Public official,” designation would apply to all who have “substantial responsibility for… the conduct of governmental affairs.” (Almost anybody who was on a public payroll and made policy decisions. Expanded the public officials definition.

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Curtis Publishing v. Butts and Associated Press v. Walker (1967)

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Fact Summary:
Curtis case: The Saturday Evening Post, published by Curtis carried on an article entitled, “The Story of a college Football fix.” Article claimed that Wally Butts, athletic director of the University of Georgia had given Alabama coach Paul Bryant information in advance about Georgia’s plan for upcoming football games between two schools.
The Post did not double-check the story with anyone knowledgeable about football to see whether the info would have helped or hurt Georgia.
Walker case: AP dispatch detailing the activities of former U.S. Army general Edwin Walker, who resigned his command and engaged in conservative political activities, often speaking out against school desegregation of the campus. AP wire said General led a group of people to attack first black student and those protecting him.
Walker admitted being present and addressing the Whites, he said he claimed for peaceful pretest, counseled against violence.
Both won a lot of lot of money.

Holding: 5-4 affirm Butts, unanimously overturned AP

Issues: libel

Reasoning: Court agreed both men were public figures and should be subject to NYT v. Sullivan. Both men were involved in issues that had justified and important public interest. Both men had to show actual malice and reckless disregard for truth to win. AP was under intense deadline pressure the Post was not. Post also relied on the info of a non-journalist who was an ex-con. Substantial differences in reporting.
Public figure different from public official. A public figure may not be a public official. Now public figures have to prove actual malice too.

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Rosenbloom v. Metromedia (1971)

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Fact Summary:
George Rosenbloom, a philadeplhia magazine dealer was arrested during a police campaign against obscenity and called “smut dealer,” on a radio station owned by metromedia. He was never convicted and the court granted an injunction ordering the police to leave him alone since the books were not legally obscene. Rosenbloom won a 275,000 libel judement from the radio station. This was reversed at appellant court, and he said not public figure so not have to prove actual malice.

Holding: 5-3 in favor of metromedia

Issues:

Reasoning: Justice Brennan said the distinction between public officials and public figures on the one hand and private citizens on the other, makes no sense. In the future the need to prove actual malice should be contingent upon whether the plaintiff was involved in a matter of public or general interest. Very hard to prove actual malice.
Rosenbloom called limited purpose public figure.

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Mickovich v. Lorain Journal (1990)

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Fact Summary:
The court allowed a high school wrestling coach to sue a sports columnist who accused him of lying under oath during a during the investigation of a melee that broke out at a campus wrestling match. A lower court ruled that the column was an expression of opinion and therefore not libelous.

Holding: Michovich

Issues: Fair comment and criticm

The court ruled that expressions of opinion enjoy no separate constitutional protection in libel suits however the court affirmed its decision in Hepps v. Philadelphia newspapers, which held that libel plaintiffs must prove the falsity of any allegedly libelous statement in cases involving public concern. Because opinions can not be proven true or false by nature they can not be the basis for a libel suit. In this particular case there was potentially false factually allegations, more than just opinion.

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Ollman v. Evans (1985)

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Fact Summary:
Syndicated columnists Evans and Novak accused Ollman, a political science professor at NYU of being an avowed Marxist and wanting to use his teaching position as a platform for political indoctrination.
Court needed to distinguish facts from opinions.

Holding: Evans, found the statements to be opinions.

Issues:

Set up a four pronged test, modified in Janklow v. Newsweek.
Expressions of opinion, regardless of if public or private figure, are protected.

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Janklow v. Newsweek (1986)

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Fact Summary:
Janklow, the governor of South Dakota was described in Newsweek as having had a long running feud with Native American activist Dennis Banks. Newsweek implied that as South Dakotas attorney general, Janklow had prosecuted Bans to get revenge after Banks falsely accused him of raping an Indian girl.

Holding: Newsweek

Issues:
It was opinion and thus couldn’t be libelous. Listed the following four criteria to be used in determining whether a statement is a potentially libelous fact or a protected expression of opinion.
1. The precision and specificity of the disputed statement: Calling someone a “fascist,” is indefinite and therefore an opinion; charging someone with a specific wrongful act would be a statement of fact.
2. The verifiability of the statement. If a statement cannot plausibly be verified it cannot be seen as ‘fact.’
3. The literary context in which the statement is made. A court may look at the type of publication, its style of writing and intended audience to determine whether a statement is fact or opinion.
4. The “public context,” of the statement. A statement made in “a public, political arena” or which “implicates core values of the First Amendment” is much more likely to be an expression of opinion than a statement of fact.

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Atlanta Journal Constitution v. Jewell (2001)

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Fact Summary:
Jewell sued the newspaper, which stated Jewell was an “individual with a bizarre employment history and aberrant personality.” It also said he fit the profile of a lone bomber. After being cleared as a suspect he sued.
Originally lower courts ruled in favor of Atlanta because Jewell was a “public figure,” through his extensive interviews after the bombing.

Holding: Atlanta

Issues: He was a public figure because of the extensive interviews he took after the fact.

Reasoning: Don’t have to be a public official/figure forever. There is such thing as a limited purpose public figure: Somebody who puts themselves in a public light for a particular issue, but is a private citizen in every other aspect of their life. Can be limited purpose public figure and a private citizen at the same time.

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Khawar v. Globe (1998)

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Fact Summary:
In an article by the Globe newspaper, the reporter discusess a book entitled The Senator Must Die. In the book the author Murrow alleged that Kennedy’s assassination did not come at the hands of convicted Sirhan, but that the Iranian Shah’s secret police carried out the assination. The globe enlarged a picture from the book adding an arrow and pointing it out as Ali Ahmand. It was actually Khawar. Khawar said he received death threats after this.

Holding: Khawar

Issues: said the globe was not accurate and neutral with its reporting and that Khawar was a private figure. Said the neutral reportage privlege does not exist in cases where republication is the basis for libel involving a private figure plaintiff.

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Horsley v. Rivera (2002)

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Fact Summary:
Horsley was a anti-abortion activist who operated a number of anti-abortion web sites. One of them had names, addresses and social security numbers of doctors that performed abortions. One doctor on the site was murdered then his name was crossed out. Four days after Horsley appeared on a program hosted by Rivera. He was introduced in a manner as being connected to the guys death. Horsley brought action against rivera for libel based on the allegedly defamatory statement during the interview.

Holding: Rivera (reverse, remand)

Issues: Said Rivera was merely expressing his belief that Horsley shared in the moral culpability for Dr. Slepian’s death.

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Hustler v. Falwell (1988)

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Fact Summary:
Protestant minister Jerry Falwell found nothing funny about a satire Hustler printed in 1983. In a parody of a magazine advertisement for a popular alcoholic drink, Hustler described a drunk Falwell having an incestuous encounter with his mother in an outhouse. Sued for libel and emotional distress

Holding: Hustler

Issues:
The Supreme Court said that he would have to prove actual malice for emotional distress money because he is a public figure.

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Dietemann v. Time Inc (1971)

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Fact Summary:
Two reporters for Life magazine investigated a man suspected of practicing medicine without a license by posing as a patient and her husband. They visited the man at his home, and took photographs. They carried a hidden transmitter so law enforcement personanel nearby could monitor and record the conversation. Published an article about it. Dietemann sued for invasion of privacy.

Holding: Dietemann, origionally Time won.

Issues:
In 1971 the appellate court agreed that the pictures were newsworthy but said the reporters had intruded upon Dietemann’s privacy in gathering the information. The magazine did not have the right to use hidden electronic devices in the man’s home to get the information.
Dietemann should have had a reasonable expectation of privacy You have this on your persona and in your home.

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Time v. Hill (1967)

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Fact Summary:
James hill family gained notoriety when it was taken hostage in its own home by three escaped convicts. Two of three convicts were killed in a shoot out with police. One year after novelist Joseph Hayes published The Desperate Hours a story about a family taken hostage by convicts. Was later made into a play and a movie. The hill family filed an invasion of privacy suit after an article in Life reviewed the play and said the book was based on The Hills. Initially the hill family won.

Holding: reverse, Time Inc.

Issues: False Light

Reasoning:
Justice Brennan applied New York Times v. Sullivan and said persons involved in a matter of public interest could not win a flase light privacy suit unless they could show that the falsehood was published either knowingly or with reckless disregard for the truth.
No actual malice.
In false light have to prove actual malice regardless if person is public or private.

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Cantrell v. Forest City Publishing (1974)

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Fact Summary:
Resulted from newspaper coverage of the consequences of the collapse of a bridge across the Ohio River. A man named Cantrell was among 44 victims, and Eszterhas, a Cleveland plain dealer reporter, followed up the tragedy with a feature story about how the man’s death affected his widow and children. Several months after the reporters stopped by the house to do a follow up. The widow was not there so they talked to the children and took pictures. It rain in the paper and stressed the families poverty and contained inaccuracies and implied they had talked to the widow. She brought action for invasion of privacy.
Used to work at The Post!

Holding: U.S. Supreme Court upheld a $60,000 judgement in favor of Cantrall.

Issues: False light

Reasoning:
Said the newspaper has published knowing or reckless falsehoods. Said the falsehoods were calculated. The photographer was not held liable since his photos were accurate.

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Cox Broadcasting v. Cohn (1975)

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Fact Summary:
In 1971 Cynthia Cohn, a 17 year old high school student was sexually assaulted and murdered in Georgia. The media jumped on the story and began covering the precedings. Wassell, a reporter for WSB-TV, a station covering the trail approached the clerk in open court during the proceedings and asked for a copy of indictment documents, which contained the name of the victim. Father of Cohn brought suit against the station for breaking a law in Georgia that made it illegal to broadcast the name or print the name of a rape victim.
He sued for damanges, invasion of privacy and inflicting emotional distress.

Holding: Cox Broadcasting, (reverse trail court, affirm appellate court)

Issues: Invasion of Privacy, public disclosure of private embarrassing facts.

Reasoning: The U.S. Supreme Court held that the law violated the Constitution. They held that the right to privacy, although important, does not take precedence over freedom of speech and, in this case, the press, where a media outlet broadcasts or prints information it obtains legally through no means of deceit or foul play. Also, when something is of public record, the actual privacy of the matter fades in significance because it has already been made a part of public record and is therefore already on the books, though many media outlets still try and minimize the use of the names of victims of crimes, such as rape, in their broadcasts and newscasts.
Not illegal to publish rape victims names.

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Diaz v. Oakland Tribune (1983)

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Fact Summary:
Toni Diaz was origionally a male, but she underwent surgery to become a female. She then enrolled in community college and was eventually elected student body president. No one was aware of her sex change until it was revealed in a colum in the Oakland Tribune.
She sued for invasion of privacy and won a jury verdict of $775,000. Appelate court overturned the decision saying that the paper should not have been forced to prove the story newsworthy. Burden should have been on Diaz to prove the story was NOT newsworthy. Things are presumed to be newsworthy.

Holding: Oakland Tribune

Issues: Public Disclosure of private embarrassing fact.

Reasoning: Diaz dropped the case, but it raised ethical questions.

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Florida Star v. BIF (1989)

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Fact Summary:
Flordia had statute prohibiting names of sex crimes, they published the name BIF sued.
Included language assuring the media’s right to report information lawfully obtained from court records and possibly other public records.
Close to Cox V. Cohn

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Bartnicki v. Vopper (2001)

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Fact Summary:
A United States Supreme Court case relieving a media defendant of liability for broadcasting a taped conversation of a labor official talking to other union people about a teachers' strike. The parties stipulated that the taped conversation had been illegally obtained by an intercept in violation of ECPA, the Electronic Communications Privacy Act

Holding: radio station

Issues:

Reasoning: A broadcaster cannot be held civilly liable for publishing documents or tapes illegally procured by a third-party. The Court held the radio station not liable because the radio station itself did nothing illegal to obtain the tape. The case stands for the rule that media defendants are not liable even if a third party violated the law.

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Shulman v. Group W Productions (1998)

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Fact Summary:
A video crew for a television station taped Ruth Shulman being freed from her car and receiving emergency medical care in a rescue helicopter. She took it to court saying the coverage was unduly intrusive.

Holding: Shulman?

Issues: Public Disclosure of private embarrassing facts

Reasoning:
Five of seven state justices agreed that the media can be sued for intruding on a victims privacy, even if the accident itself was newsworthy. On the other hand court said media could not be sued for revelaing private facts in a situation as newsworthy as an accident near a major highway.
Court said invasion of privacy, couldn’t sue for what was taken at public place. But the facts in helicopter could be sued for.

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Wilson v. Layne (1999)/ Berger v. Hanlon (1997)

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Fact Summary:
Wilson: Law enforcement officers with a warrant entered the home of Charles and Geraldine Wilsn to arrest their son. A Washington Post reporter went with them into the home and described a scuffle between officers and charles. No photos were ever published but the Wilson’s sued the officers for allowing the reporters to enter the house.
Berger: CNN sent a tv crew with federal wildlife agents on a raid of a ranch in Montana. The agents suspected Paul Berger of killing bald eagles and violated the endangered speciies act. An agent wearing a hidden mic searched the home and questioned the couple.

Holding: Berger
Issues:

Reasoning:
Wilson: Said law enforcement officers are violating the fourth amendment in most instances when they allow the media to accompany them into private property to conduct a search or make an arrest. Stopped short of saying they could be sued though. Permission to be there doesn’t transfer to reporters.
Berger: The court said that by agreeing to cooperate with CNN, the federal agents had “transformed the execution of a search warrant into entertainment TV.” Said that the agents and CNN could be sued for unlawful intrusion. The berger case was sent down to court of appeals because since Wilson was not passed at the time it was impossible for the officers to know the law existed.

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Sipple v. Chronicle Publishing Co. (1984)

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Fact Summary:
Oliver Sipple saved President Fords life when he struck the assasins arm causing her to miss. The media revealed that Sipple was a homosexual and active member of the gay community. He sued for invasion of privacy, but the California Court of Appeals ruled that the stories about his sexual preference were newsworthy.
Holding: Chonicle Publishing co.
Issues:

Reasoning:
but the California Court of Appeals ruled that the stories about his sexual preference were newsworthy. Wouldn’t let the records be kept, didn’t want it to be used for common law.

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APPROPRIATION

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The unauthorized commercial use of a person’s name, likeness or other aspects of their public persona.
— Has to be for commercial use.
— Using something that is newsworthy is not appropriation.

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Here’s Johnny v. Carson

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(1983)
Fact Summary:
A port-a-potty company used part of Johnny Carson’s persona to advertise their product. They got sued for using the phrase that he was introduced with every night.

Holding: Carson

Issues: Appropriation

Reasoning:
Can be sued for taking catchphrases the same as tangible objects.

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Solano v. Playgirl

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(2002)

Fact Summary:
Playgirl published photo of Baywatch character on cover. He said it implied he would be nude inside and that they took his likeness without permission.
Holding: Playgirl
Issues: Appropriation

Reasoning:
He didn’t win because at one point there was consent on his part. Consent is a defense to appropriation always.

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Zacchini v. Scripps

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(1977)

Fact Summary:
Local news shows wanted feature story of human cannonball at local carnival. Scripps sent a news crew that taped everything and then the entire act was broadcast on the tv show. He sued because there was no reason for people to see the actual act when they could see it on TV.
Holding: Zacchini
Issues: Appropriation

Reasoning:
If you take someone entire act, even if newsworthy, than it is still appropriation.

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Two Systems of courts:

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1. Federal
2. State Courts
(Note: Louisiana is the exception, based on French legal history)

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Two kinds of courts within federal and state courts:

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1. Trial: juries, drama etc.
2. Appellate: review what trial courts do to determine if mistakes were made or if the trial was unfair.

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Each court has two kinds of jurisdiction:

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1. Subject matter jurisdiction: what kinds of cases that court can decide (Tax court for example). Subject matter jurisdiction is determined either by constitution or legislation by legislature.
2. Territorial jurisdiction: geographic area over which the court has authority. Territorial jurisdiction is decided by legislative bodies (in state it is decided by state legislature, federally decided by congress.)

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Appellate courts:

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1. Intermediate appellate court: required to hear every case appealed to it.
2. Supreme Court: can pick which cases they hear.

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Two ways judges are selected:
Federal v/ State

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1. In all federal courts: judges are appointed for life by the president and confirmed by the senate.
2. State judges: elected. Two types of elections, a. general elections (against opponents with campaigns), b. judge appointed and then comes up for retention election. Voters can just have them reappointed for specific terms.

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In Ohio:
Trail courts:

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Common Pleas ( general), municiple (special).

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In Ohio:
Intermediate level court

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is the district court of appeals (northern and southern court) compiled of counties.

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en banc

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the court is asked that all judges hear the case,

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—Some things are always federal

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like tax evasion, mail fraud, bank robbery and anything across state lines.

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Federal System:

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1. U.S. District Court (Federal Trial Court)
2. Intermediate level of federal is the circuit court of appeals: usually territory is complication of states.
6th circuit court: Michigan, Ohio, Kentucky, Tenn
3. U.S. Supreme Court: nine judges that pick and choose the cases that they hear.

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Trail Courts:
At least two parties involved

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1. The plaintiff: (represented by pie) Brings the legal action (person, state, corporation etc.)
2. The Defendant: (represented by delta) the person legal action is brought against.

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The person that appeals the case

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appellant

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appelle

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person the appeal is brought against.

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Civil Law—

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When one entity brings legal action against another entity to correct a wrong.

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The government is always the plaintiff in a

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Criminal Case —

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Two types of crimes:

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1. Serious crimes: felonies like murder, rape, burglary etc.
2. Minor crimes: misdemeanors

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*Legislative body determines penalty range for

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for violation of criminal laws.

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Three types of damages:

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1. Punitive damages:
2. Special damages:
3.compensatory damages:

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1. Punitive damages:

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1. Punitive damages: damages intended to reform or deter the defendant from engaging in similar conduct. (Equivalent to a civil fine, only allowed in a few cases)

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2. Special damages:

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When you can prove direct financial causation such as medical bills.

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3.compensatory damages:

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pain and suffering compensation.

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Degree of Proof: In criminal case it is the highest degree of proof, proof beyond a reasonable doubt.

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t is the highest degree of proof, proof beyond a reasonable doubt.

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Degree of Proof in civil case

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In civil case proof is by a preponderance of evidence (slightly more than 50 %).

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Four kinds of law:

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1. Constitutional Law —
2. Statutory Law —
3. Administrative Law—
4. Common Law—

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1. Constitutional Law —

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Originates in constitution of the U.S. or the state. The “ultimate” law that other laws must be in accordance with.

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. Statutory Law —

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Law that is passed by a legislative body, written law. All criminal law is statutory law.

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3. Administrative Law—

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regulatory law. Congress establishes regulatory body that has rules and regulations ppl must follow. Eg. Federal Trade Organization.

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4. Common Law—

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judge made law. Law that evolves over time as a result of judicial decisions. Decision of past judge may determine what judges determine now.

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*Legal precedent:

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Using case from past to decide present case.

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Jury trials:

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average citizens selected to listen to case and they decide facts of case. Then apply law judge fives them and they arrive at a verdict.

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In criminal cases the verdict is either

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guilty or non-guilty
Jury decisions must be unanimous in criminal cases

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mistrial

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can’t come to decision.

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— in civil case decision either

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in favor of the plaintiff or the defendant. Either party can request a jury.

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. Trial to the bench:

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The judge decided the facts, what law to apply and does the sentencing. Often called a “judgment.”

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Walk through a criminal case
1. Arraignment —

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time when person enters plea to charge (guilty/not guilty)

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Walk through Criminal Case
2. Series of pre-trail motions — filed by the defense to get evidence dismissed and limit the prosecutions case.
*Most common motion is motion to suppress evidence, say evidence was seized unconstitutionally etc.
Venire: group of potential jurors put into huge panal.
3. Voir Dire: The jury selection process. Jury is questioned and can be dismissed for these reasons:
a. For cause: Juror has preconceived opinion about case.
b. Preemptory: kick off for whatever reason, there are a certain number of these allowed as long as not based on race.
4. Opening Statements: Plaintiff goes first, it is like a preview of coming attractions. Short and exciting.
5. Testimony: Burden of proof party goes first and last.
a. Direct examination: person who calls witness when they question them. Purpose is to get witness to tell their story.
b. Cross examination: the other side tries to destroy the credibility of the witness.
C. Redirect examination: party that called witness gets to try to get credibility back.
6. Closing Argument: Try to convince jury they should prevail. Plaintiff goes first. Judge then fives instructions to jury and tells them which law to apply to facts.
7. Deliberation and verdict or finding.

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Walk through Criminal Case
— filed by the defense to get evidence dismissed and limit the prosecutions case.
*Most common motion is motion to suppress evidence, say evidence was seized unconstitutionally etc.

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Walk through Criminal Case


Venire: group of potential jurors put into huge panal.
3. Voir Dire: The jury selection process. Jury is questioned and can be dismissed for these reasons:
a. For cause: Juror has preconceived opinion about case.
b. Preemptory: kick off for whatever reason, there are a certain number of these allowed as long as not based on race.
4. Opening Statements: Plaintiff goes first, it is like a preview of coming attractions. Short and exciting.
5. Testimony: Burden of proof party goes first and last.
a. Direct examination: person who calls witness when they question them. Purpose is to get witness to tell their story.
b. Cross examination: the other side tries to destroy the credibility of the witness.
C. Redirect examination: party that called witness gets to try to get credibility back.
6. Closing Argument: Try to convince jury they should prevail. Plaintiff goes first. Judge then fives instructions to jury and tells them which law to apply to facts.
7. Deliberation and verdict or finding.

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group of potential jurors put into huge panal.

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Walk through criminal case
3. Voir Dire:

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The jury selection process. Jury is questioned and can be dismissed for these reasons: For cause, preemptory

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a. For cause:

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Juror has preconceived opinion about case.

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b. Preemptory:

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kick off for whatever reason, there are a certain number of these allowed as long as not based on race.

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Walk through criminal case:
4. Opening Statements:

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Plaintiff goes first, it is like a preview of coming attractions. Short and exciting.

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Walk through criminal Case
5. Testimony:

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Burden of proof party goes first and last.
a. Direct examination: person who calls witness when they question them. Purpose is to get witness to tell their story.
b. Cross examination: the other side tries to destroy the credibility of the witness.
C. Redirect examination: party that called witness gets to try to get credibility back.

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6. Closing Argument:

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Try to convince jury they should prevail. Plaintiff goes first. Judge then fives instructions to jury and tells them which law to apply to facts.
7. Deliberation and verdict or finding.

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a. Direct examination:

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person who calls witness when they question them. Purpose is to get witness to tell their story.

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b. Cross examination:

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the other side tries to destroy the credibility of the witness.

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C. Redirect examination:

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party that called witness gets to try to get credibility back.

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The Appeal:
1. Notice of Appeal:

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document appellant files.

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The Appeal:
2. Assigment of error:

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document appellant files that lists the mistakes he thinks happened at the lower level.

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The appeal:
. Answer brief:

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document filed by the appellee.

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The Appeal:
4. Oral argument:

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attorneys appeal in front of panel of judges. Then court of appeals issue written decision.

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Possible Court of Appeal Decisions (same with supreme court): and definitions

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1. Affirm a decision: court agrees with last decision.
2. Reverse: court found error in lower court that made the trial unfair.
3. Remand: court sends it back to trial court to do something over again.
4. Reverse and remand: said court below did something wrong but sends it back for lower court to correct.

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1.Concurring opinion:

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judges/justices agree with final outcome but for different reasons.

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2.dissenting opinion:

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don’t agree with decision.

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3.Dicta:

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not the majority opinion of a court but shows reasoning why didn’t agree.

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Three theories for looking at the First Amendment:

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Absolutist (1)
Balencing (2)
Preferred Position Theory (3)

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1. Absolutist Theory: What two justices

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taking the 45 words of first amendment and take them as law. Anyone can say anything at anytime with no limits.
Not practical. Only two justices come close to this: Hugo Black from Alabama (carried around copy of constitution) and William O’Douglas.

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2. Balencing Theory: .

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When a court looks at multiple provisions of constitution and tried to weight them to see which take priority in a situation.
First amendment equal to all other amendments.

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3.. Preferred Position Theory:

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The first amendment is first and therefore more important than other amendments.
Marberry v. Madision: first case in which the supreme court started deciding provisions’ constitutionality. Justice John Marshall decided they can determine things unconstitutional

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Schenck v. US [249 U.S. 47 (1919)] Balancing

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Fact Summary: •Schenck, general secretary of the Socialist party and another socialist were
convicted under the espionage act and state anarchy and sedition laws for circulating 15,000 leaflets to military recruits and draftees.
•They denounced the draft as unconstitutional form of involuntary servitude (13th Amendment), cold-blooded venture for profit for big businesses.
•Schenck said their words should be protected by first amendment.

Holding: U.S., upheld conviction.

Issues: First amendment vs. National security

Reasoning: Supreme Court says their words created a clear and present danger and thus could be prevented. Justice Ollie (Oliver Wendall) came up with a test, basically ever question in every case if the words were enough to cause clear and present danger and to bring about substantive evil. Basically meant the 1st amendment is not absolute. Congress can abridge freedom of speech for national interest.

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Abrams v. US [250 U.S. 616 (1919)]

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Fact Summary: •Jacob Abrams and four others published anti-war leaflets trying to get factory workers to strike.
•Justice Ollie Holmes had rethought his position and wrote a defense of freedom of expression that was joined by Justice Louis Brandeis. They issued a statement that a man issuing leafletes is not causing immediate danger. Only should be limited if the danger created is immediate evil, has to be more than words. (Dissenting opinion but still important)

Holding: U.S., upheld conviction.

Issues: First amendment vs. National security

Reasoning: Although the US won the minority opinion would later become very influential.
Justice Clark said “The activities of the guys were to excite riots and revolution, to aid the enemy. Thus they created a clear and present danger.

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Dennis v. US [314 U.S. 494 (1951)]

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Smith act tested, changed clear and present danger test.

Fact Summary: •Eugene Dennis and 11 other members of the communist party tried on charges of willfully and knowingly conspiring to overthrow the US govt by force.
Holding: U.S., upheld conviction.

Issues: First amendment vs. National security

Reasoning: They were convicted because Justice Fred Vinson adopted a test formulated by appellate court judge Learned Hand. The test asks the “Gravity” of the evil discounted by its improbability, justifies such invasions of speech to avoid danger. Modified clear and present danger.
The Attempt to overthrow the govt even if not plausible is a big enough evil to be limited. Limited communism. Lead to the prosecution of many members of organizations wanting violent overthrow of the government.

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Yates v. US [354 U.S. 298 (1957)] ?

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Modified the Dennis rule, added clarity

Fact Summary: •14 people charged with communist activities.

Holding: Yates, reversed charges

Issues: First amendment vs. National security

Reasoning: High court focused on distinction between teaching the desirability of overthrowing the govt as a theory and actually advocating violent action. Must be an action component.
Said Smith act could only be used against advocacy, not teaching of principles. Needed proof that the defendant was calling for action rather than just teaching.
Happened because public opinion was bad, people thought McCarthy had taken things too far.

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Bradenburg v. Ohio [395 U.S. 44 (1969)]

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First amendment protection for seditious speech expanded

Fact Summary: •Man convicted of violating Ohio criminal syndicalism law said he was protected by the 1st amendment. (klu klux klan member)
• In video he urged blacks back to Africa, Jews to Israel.

Holding: Brandenburg, reversed decision.

Issues: First amendment vs. National security

Reasoning: Supreme court said “first amendment even protects speech that calls for action as long as it is not likely to insight or produce immeninat lawless action.
Basically reversed the 1927 Whitney v. California decision.
Illustrates how a minority opinion can become a majority opinion.

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Near v. Minnesota [283 U.S. 697 (1931)]

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Prior restraint generally improper in America

Fact Summary: •case resulted from Minnesota state law that allowed government officials to treat a newspaper as a public nuisance and forbade its publication. The Saturday Press, which was run by Guilliford and Near, published several articles critical of public officials, accused police of being corrupt etc.

Holding: Near, reversed decision.

Issues: First amendment, fourth amendment, prior restraint

Reasoning: Justice Hiughes. Supreme court overturned the decision 5:4 and said the paper can’t be censored before publication with major exception of national security and obscenity. Said in 150 years prior there was a deep conviction that such restraints violate constitutional rights. Cited James Madison.
Blackstone argued against prior restraints but in favor of punishment afterwards. Said cases like Schenck v. US prior restraint might have been proper to control violence.

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New York Times v. US [403 U.S. 713 (1971)]

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First time federal govt sought to censor major newspapers to prevent them from printing secret documents

Fact Summary: •a secret defense department study of American policy during the Vietnam war was photocopied and portions given to several newspapers. Revealed questionable decisions of Truman, Eisenhower, Kennedy and Johnson which led to the Vietnam war.
•The Pentagon Papers
• When the first instalment appeared in the Times (The Post didn’t publish yet) Nixon demanded the halt of all further stories. Immediately appealed to the supreme court and the justices decided the case within two weeks.
•Nixon said the papers endangered national security and foreign relations. Newspapers said it was clear cut first amenment issue involving informing the public of important information.

Holding: 6:3 in favor of the NYT

Issues: First amendment vs. National security

Reasoning: Court said that the govt failed to prove the articles would endanger national security. Many recommended criminal prosecution after publication. No consistent majority opinion.
Majority: Marshall, Brennen, stweart, white, Douglas, Black
Minority: Harland, Blackma, Burgher
Stewart and White: Said no prior restraint but can press criminal sactions later.
Harland Black: in favor of prior restraint.
Burgher: wanted to forbid publication till the lower courts looked at the issue.

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Tinker v. Des Moines Independent Community School District .

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Black armbands case

Fact Summary: •John (15) and Mary Beth Tinker (13) and friend (16) suspended for wearing black arm bands as protest of Vietnam war.
•The School principals heard of the protest and adopted a rule against wearing armbands on campus. Students said their suspension violated their first amendment rights.

Holding: Tinker, reversed decision.

Issues: First amendment, symbolic speech in school disctrict.

Reasoning: Justice Abe Fortas “first amaenment rights are available to students and teachers even at schoo. They did nothing to disrupt education. School officials do not have absolute control over students.”
Freedoms can be suppressed when interferes with rights of others

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Hazelwood v. Kuhimeier [484 U.S. 260 (1988)]

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Fact Summary: •School principle censored two articles in student newspaper The Spectrum they planned to publish abut student pregnancy and divorce. No real names were used in the stories.

Holding: Hazelwood

Issues: First amendment

Reasoning: Supreme Court said principle could censor them even though they neither violated the rights of students nor threatened to cause a campus disruption (basically overruled Tinker). Said you can control student speech in school sponsored expressive activities.
First amendment does not protect official student newspapers and other school sponsored activities.

Ramifications: Gave more tools to administration to censor students. Could censor if no educational value in what they were saying. Not very clear.

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Kinkaid v. Gibson [236 F. 3d 342 (6th circuit Oh. 2001)]

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Fact Summary: •Kentucky State University impounded all copies of the KSY yearbook because campus officials objected to it being purple, lacking some photo captions and including off campus material.

Holding: mixed, 6th circuit held with students, 7th held with KSU

Issues: First amendment at schools

Reasoning: Sixth circuit in banc held that KSU violated the 1st amendment because campus media are non-public forums that can not be censored if the censorship is not viewpoint neutral.

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Hosty v. Carter [2005 U.S. App. Lexis 11761 (7th cir. Ill., June 20, 2005)]

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Fact Summary: •Dean of student affairs at Govenors State University Patricia Carter, ordered crease publication of student publication The Innovator till she could review the copy.
• Students sued.

Holding: Carter

Issues: First amendment vs. National security

Reasoning: 7th circuit en banc decided in a 7-4 court decision by a 3-judge panel to limit the first amendment rights of student journalists in that circuit.
Said first amendment rights of college students the same as high school because both papers often subsidized or produced by Journalism classes. Said Hazelwood applies even though in Kincaid v. Gibson they said it didn’t.

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Chaplinsky v. New Hampshire [315 U.S. 528(1942)]

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Fact Summary: •Man called someone a “damn Facsist” during WWII.

Holding: New Hampshire

Issues: First amendment, fighting words

Reasoning: Fighting words. So if someone’s words likely to produce immediate violent reaction could be held criminally liable. In Ohio this is like the disorderly conduct law.

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Cohen v. California 1971

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Fact Summary: •man wore a jacket that said fuck the draft

Holding: Cohen

Issues: First amendment

Reasoning: Justice John Harland said “one man’s vulgarity is another man’s verse.” Basically constitution can’t control obscenity because way to many ideas about what is obscene. Also it was political speech.

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R.A.V. v. St. Paul [505 U.S. 377 (1992)]

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Fact Summary: •Minnesota ordinance intended to punish those who burn crosses, display swastikas or express racial or religious hatred.
• A Caucasian youth burned a homemade cross in the front yard of an African American home. (Could have been prosecuted for trespassing or arson etc. but instead used the hate speech law against him).

Holding: R.A.V

Issues: First amendment

Reasoning: High court overturned the ordinance with Justice Scalia saying what he did was bad but don’t limit his free speech, punish him for the actual crimes. Can’t punish him because he is offensive.

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Texas v. Johnson [491 U.S. 397 (1989)]

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Fact Summary: •Gregory Johnson burned an American Flag to protect Reagan’s policies.

Holding: Johnson

Issues: First amendment, flag burning

Reasoning: Court said he could not be punished because majority said flag desecration is a protected form of symbolic speech when in a political context.

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U.S. v. Eichman [496 U.S. 310 (1990)]

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Fact Summary: •flag desecration

Holding: Eichman

Issues: First amendment, symbolic speech

Reasoning: 5-4 majority reaffirmed its earlier holding that flag desecration is a form of symbolic political speech protected by the first amendment.
Justice Kennedy pointed out the flag desecration had become an internationally recognized form of political protest.
Integrety of flag tarnished by leaders that advocate worship of flag even by those it offense. Triggered new campaign for constitutional amendment to exclude flag desecration from 1st amendment.

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Wisconsin v. Mitchell [508 U.S. 476 (1993)]

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Fact Summary: •Todd Michell and group of African Americans were at home discussing a film. They went out and beat a 14-year-old white boy up.
•Mitchell convicted for aggravated battery, he got more tiem for racist targeting.
•Wisconsin Supreme Court said this violated the first amendment. Supreme

Issues: First amendment

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Planned Parenthood v. American Coalition of Life Activists [2002 U.S. App. Lexis 9314 (US App. 9 cir. 2002)]

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Fact Summary: •A web site advocating violence against abortion clinic workers that included names, home addresses and license plate numbers of ppl who performed abortions. If doctors died a line was drawn through their name.
•A 2002 court decision upheld part of a large monetary judgement against the anti-abortion activists.

Holding: Planned Parenthood

Issues: First amendment

Reasoning: 9th circuit upheld decisions and also affirmed an order censoring the web site because the language of the web site constituted “true threats” to health care workers even though there were no explicit threats on the site.

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Black v. Virginia [2003 U.S. Lexis 2715 (2003)]

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Fact Summary: •Three people in trouble for cross burning. Court called cross burning prima facie— evidence of intent to intimidate. Said cross burning is offense if intent is to intimidate. Found Virginia’s statute against cross burning unconstititutional.

Holding: Black

Issues: First amendment

Reasoning: New area of unprotected speech under “True threats,” that inspire fear and bodily harm.

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Village of Skokie v. National Socialist Party [366 N.E. 2d 347 (Ill. App. Ct., 1977)]

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Fact Summary: •Neo-naxi planned march in Skokie, Ill (a largely Jewish community.) Tried to make them pay insurance to march, in the end had to take this back.

Holding: National Socialist Party

Issues: First amendment

Reasoning: Supreme Court ordered Illinois to hold a hearing on their ruling against the Nazis.

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Gitlow v. NY

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Issues: First amendment vs. States

Reasoning: First time a court determined the first amendment applied to the states.


Fiske v. Kansas

Reasoning: Said being a member of the communist party was not enough, had to take some action.

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Progressive case 1979

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Fact Summary: •Going to publish plans for the H-bomb.

Issues: Prior restraint

Reasoning: Some other publication printed it so the case ended.

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US v. Marchetti 1972

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Fact Summary: •Marchetti a government employee. Can govt silence its own workers.

Holding: US

Issues: First amendment

Reasoning: Yes, if you work for the government you give up some of your first amendment rights.

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Snepp case

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Reasoning: By employment contract you can give up some first amendment rights.

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Bethel v. Fraser

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Fact Summary: •Mathew fraser at Bethel High School gave speech that has sexual inneuendo in it. He is suspended and lower courts say the school violated his first amendment rights.

Holding: Bethel

Issues: First amendment

Reasoning: Supreme Court said his speech was inappropriate and sided with the school.

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Morse v. Frederick

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Fact Summary: •Student put up banner that said “Bong Hits for Jesus” he got suspended.

Holding: The school

Issues: First amendment

Reasoning: Messages advocating drug use are not protected by first amendment.

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Harper v. Poway

Fact Summary: •(Harper)kid wears an anti-homosexuality t-shirt. School made him remove it.

Holding: Poway

Issues: First amendment

Reasoning: Said harper failed to prove the school violated his free speech, His t-shirt collided with rights of other students.

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Fact Summary: •(Harper)kid wears an anti-homosexuality t-shirt. School made him remove it.

Holding: Poway

Issues: First amendment

Reasoning: Said harper failed to prove the school violated his free speech, His t-shirt collided with rights of other students.