Com Law Exam 1

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Voir Dire

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literally, "to speak the truth"; The preliminary jurors to assess their suitability

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Distinguish from precedent

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to justify an outcome in a case by asserting that differences between the case and preceding cases outweigh any similarities

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Discovery

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The pre-trial process of gathering evidence and facts

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Stare-Decis

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Literally, "Stand by the previous decision"

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Affirm

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to ratify, uphold or approve a lower-court ruling

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Writ of Certiorari

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A petition for review by the U.S. Supreme Court

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Peremptory Challenge

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During jury selection, a challenge in which an attorney rejects a juror without giving a reason

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Amicus Curiae

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Literally, "A friend of the court"; an interested individual or organization who is not a party in the case

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Remand

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to send a case back to lower court for further action

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Precedent

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case judgment that established binding authority and guiding principles for cases to follow

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Venue

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the locality of a lawsuit and of the court hearing the suit

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summary judgment

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the quick resolution of legal dispute in which a judge summarily decides certain points and dismisses the case

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overturn precedent

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to reject the fundamental premise of a precedent

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5 major sources of law

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1. Constitution
2. Statutes
3. Administrative
4. Common Law (precedent)
5. Executive Orders

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Supremacy Law

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-Constitution is highest law
- no law can be passed that goes against the constitution

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Statutes

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-more specific than the constitution
-give greater guidance to the law

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Administrative law

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-more specific than statutes
- the orders, rules and regulations promulgated by the executive branch administrative agencies to carry out their delegated duties

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Common Law

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-unwritten, judge-made law consisting of rules and principles, developed through custom and precedent

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Executive Orders

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-orders from a government executive, such as the president, a governor or a mayor, that have the force of law
-changes with every presidential administration

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Freedom of Information Act (FIOA)

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the right for any citizen to examine any document which addresses what the government is doing
- 9 exceptions

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Civil vs. Criminal

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-civil is more private
-both are issues of fact or law
-criminal: the state is going to be one of the parties
- you can go to jail for criminal cases there is no jail time for civil cases
- both can have monetary compensations

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State Court System

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Trial Court System > Intermediate Appelate Court > Final Appelate Court > then the next and final highest court is the US Supreme Court

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Federal Court System

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US District Court > US Court of Appeals > US Supreme Court

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Court Jurisdiction (Federal)

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- Interstate/International Controversy
- Federal Question/Law
-Broadcast/Cable
-Copyright
-Patents
- FOIA

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Court Jurisdiction (State)

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-State Law
-Privacy
-Libel
-Access

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Court Jurisdiction ( ? it depends)

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-corporate speech
-advertising regulations
-obscenity
-trademarks

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Trial Courts

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-the only court you will find a jury
-the fact finder court

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Court of Appeal

Actions of the Appeal Court:

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-Review the opinion/actions of the lower court (trial court)
- exception: de novo review (very rare)- court will rehear the whole case and the evidence is reviewed
Actions:
-affirm: the verdict stands
-overrule: the verdict is overturned
-remand: it is sent back to the trial court; brand new trial - examine the one aspect that the appellate court disagreed with

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Types of Opinions

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-majority: majority have voted that way
-concurring: the same vote but for a different reason
-dissenting: disagreed; voted against majority decision and why

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Appelant

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the party making the appeal

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Appellee

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the party against whom an appeal is made

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en banc

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when every judge in a particular appeal court circuit hears a case

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John Stuart Mill

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-seek the truth
-freedom of expression is necessary for the truth to be discovered; dissent is healthy to public debate

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Supreme Court Justice Oliver. W Holmes

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-market place of ideas
-Holmes continued Mill’s theory that dissenting speech is healthy and useful. He analogized freedom of speech as a an actual marketplace in which ideas are hawked like ceramics or “antiques” at a flea market. Consumers, or citizens, can choose the “best” idea.
-used consistently by the supreme court in free speech cases

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Alexander Meikeljohn

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-Self-governance
-Meiklejohn also believed in the ecessity of a robust exchange of ideas, but he believed he purpose of the First Amendment was to ensure his free exchange as it pertained to self-governance – political speech.
-used consistently by the supreme court in free speech cases

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Vincent Blasi

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-Checking Value
-Blasi believed that well-financed, ell-organized, professional critics of government – he media – is the most effective restraint on government abuse. As such, the press is entitled to special protection under the First Amendment. The Supreme Court has held that such access is not required of print journalists.

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Supreme Court Justice Potter Stewart

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-Fourth Estate
-Stewart expanded on the media’s unction in society as a formal check on government when he called the media, as an institution, he Fourth Estate of government (Executive, Legislative, Judiciary, and the Press).
-stewarts fourth estate theory is often used in dissenting opinions, public speeches, and law review articles

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Thomas Emerson

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-Safety Valve
-Emerson argued that when people ave the freedom to express their opinions and to persuade others, they will be more willing to accept contradictory decisions. Without free expression, the problems of society may remain hidden and fester. So by suppressing reform, censorship may transform problems into a revolution.
-used by the Supreme Court in some types of free speech cases, such as hate speech and protests

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Thomas Emerson/John Locke

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-Self-fulfillment
-Individuals require the freedom to form beliefs/opinions and the right to express those belief/opinions.
-rarely used by the supreme court

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Non-public forum

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government-held property that is not available for public speech and assembly purpose

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Private Property as a Public Forum

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ex. Carousel Mall

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Designated Public Forum

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government spaces or buildings that are available for public use (within limits)
-ex. Hall of Languages

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Virtual Forum

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ex. online forum

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Traditional Public Forum

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lands designated for public use and historically used for public gathering, discussion, and association (e.g. public streets, sidewalks, and parks)

-free speech is protected in these areas

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Petition for writ of certiorari

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-asking the court to hear your case

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Oral Arguments

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at this point the justices have already read the brief; they are familiar with the case - attorney's prepare speech which is often not heard in its entirety

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Memorandum Order

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an order announcing the decision of the court without providing an opinion

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Per Curiam (by the court)

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no one justice writes the opinion

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Search for Truth Theorists

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-John Milton
-John Stewart Mill
-Justice Oliver Wendell Homes
Value Served: finding the "Truth"
Key Phrases: market place of ideas, open and robust debate

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Self-Government Theorists

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-Alexander Meiklejohn
Purpose: informed electorate
Key Phrases: Town-hall meeting, every idea

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Checking Power Theorists

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-Vincent Blasi
-Justice Potter Stewart
Purpose: check on gov't power
Key Phrases: Institutionalized counterpoint

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Ad-hoc Balancing
-problem?

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case-by-case basis
-look at the facts of the case at hand
-problem is that there is no precedent set and there is no predictability

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Categorical Balancing
-list different levels

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-gives some idea of the outcome
-the court breaks cases down into different categories of speech:
-political expression, social expression (inner circle-most protected)
-commercial expression, non-obscene, sexual expression (middle circle, some protection)
-conduct, obscenity, fighting words, false advertising, incitement (first amendment doesn't really cover this outer ring)

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Prior Restraints

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-limitations on speech before publication
-most serious and least tolerable infringements on the F.A.
-strict scrutiny (compelling interest) is applied to all prior restraint laws
-ex. of allowed prior restraints: gag orders, contract agreements, obscene publications, fighting words legislation, war time publications of troop movements

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Near v. Minnesota

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-court case about the anti-semetic newspaper that stated that all illegal activity originated from the Jewish Population
-the trial court enjoined Near from further publication
Supreme Court ruling
- main purpose of freedom of expression is to prevent prior restraint
-this statute would allow courts to enjoin government critics
-defamed individuals can sue after publication, but can't bar all potentially defamatory communication

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Strict Scrutiny

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-compelling government interest
-advances the itnerest
-narrowly drawn: there is a good fit between the law and the issue
-vagueness
-overbreadth

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Compelling Interest

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-necessary/crucial
-examples:
-national security
-safety of many
-preservation of constitution

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Narrowly Tailored

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-direct relationship between problem and law
-least restrictive means possible

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Testing for vagueness

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-the law is hard to understand and apply
-ex. "there no vehicles permitted in the park"

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Testing for overbreadth

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-the law reaches too far
-examples: "no person shall engage in First Amendment activities within the central terminal area at Los Angeles International Airport"

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Content Neutral Laws

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-non-content related, nondiscriminatory
-courts apply intermediate scrutiny
-courts are more willing to accept content neutral laws

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Intermediate Scrutiny

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-truly content neutral?
-substantial government issue?
-narrowly tailored to advance the interest?
-most things will be considered substantial
-there must be some link between the law and the problem trying to be solved, but it does not have to be as tight of a fit as in strict scrutiny

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U.S. v. O'Brien

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-case regarding burning of draft card and the law stating that it was illegal to destroy or defame draft cards
-is law constitutional?

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Abridging Free Speech
(types of laws and type of review applied + categories of speech and type of review applied)

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-prior restraints = strict scrutiny
-content-based = strict scrutiny
-content-neutral = intermediate scrutiny

-political expression / social expression = strict scrutinu
-commercial expression, non-obscene, sexual expression = intermediate scrutiny
-conduct, obscenity, fighting words, false advertising, incitement = rational review

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Chaplinsky v. New Hampshire

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-*fighting words case*
-case regarding the man who called the police officer a fascist
-words hat by their very utterance inflict injury or tend to incite an immediate breach of peace receive NO first amendment protection

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Hate Speech
Disruptive Speech Tests

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-most hate speech is protected by the first amendment b/c it is considered political speech
-Clear and Present Danger: government has a duty to prevent speech that presents a clear and present danger to the nation
-Incitement: government has a duty to prevent speech that is intended to cause "imminent lawless action"

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Incitement Test (currently used)

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- did the speaker intend to produce lawless action?
-was the speech likely to cause lawless action?
-was the lawless action, or likely action immediate?

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First National Bank of Boston v. Belotti

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-case regarding Bank purchasing ads to inform people and get them to fight the passing of a personal income tax proposal
-previous law stated that corporations could not buy ads that supported or opposed a referendum unless the corp. was directly affected
-constitutional?
-court decided that it was not constitutional b/c considered speech political and citizens have the right to receive information

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Commercial Speech Doctrine (Cases and there outcome)

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-Valentine v. Chrestensen(1942): denied first amendment protection for any commercial speech
-NY Times v. Sullivan(1964): hybrid messages gain protection
-Bigelow v. Virginia(1975): expanded the protection for social advertisements
-Virginia v. VCCC: Intermediate scrutiny for commercial speech
-Central Hudson v. NY: four part test for commercial speech regulation

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Valentine v. Chrestensen

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-case regarding man who bought US submarine from war and handed out advertisements to see the sub which violated the state sanitary code
-Chrestensen then put a political message on the back of the ad thinking that he would be protected by political speech
-courts ruled against him stating that handbills (ad) were purely commericial
-precedent set by ruling was the commercial speech is denied protection under the first amendment

Front 71

Virgina Board of Pharmacy v. VCCC

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-statute prohibited pharmacists from advertising drug prices
-U.S. Supreme Court said pure commercial speech is proected
-the first amendment protection is grounded in the public's right to know

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Central Hudson Gas and Electric Corp. v. Public Service Commission

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-case regarding electric company buying advertising during an energy crisis
-outcome the Central Hudson Test

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Central Hudson Test

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-4 part test
1. Commercial Speech
-is it commercial?
-speech that does not more than propose a commercial transaction
-speech related soley to the economic interest of the speaker and its audience
-is it eligible?
-lawful
-acurate
2. Government Legitimate/Substantial Interest?
-health, safety, moral + aesthetic quatlities of community
3. Direct Advancement of that Interest?
-the regulation must "directly and materially" advance the government interest
-the government must sow evidence that
-there is real harm, and
-the regulation will alleviate the harm
4. Narrowly Drawn
-is the regulation reasonable?
-the court will balance the government interests and the free speech burdens

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Nike v. Kasky

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-Nke was accused by mistreating workers overseas
-the company responded with press released
-Kasky sued stating that the information provided in the press releases was false
-the trial court dismissed the case
the California Appellate court however reversed the decision stating that the speech was commercial therefore could be punished under state false advertisement and unfair competition law
-their rational was:
-Nike engaged in commerce
-the intended audience was potential nike customers
-the nature of the message was to increase Nike sales

Nike then appealed to the U.S. Supreme Court
-Nike argued that the speech wsa protected by the first amendment b/c it was political speech
-who dismissed the case stating that Kasky did not have grounds to sue; that he had not suffered sufficient injury
-this case was a lost opportunity for the court to better define commercial vs. political speech

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Deceptive Ads

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-likely to mislead a reasonable consumer
-with a material statement or omission

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FTC Efforts

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-Industry Guides
-Trade regulation rules

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FTC Case-by-Case Action

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-complaint
-congressional inquiry
-advice requests

*many times complaints come from competitors

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Preventative Action (FTC)

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-opinion letter: not binding, comes from one lawyer's opinion who works for FTC
-advisory opinion: binding, in public record
-voluntary compliance: the advertiser voluntarily complies with the advice given by the FTC

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Corrective Action (FTC)

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-Cease and Desist Order
-consent agreement
-substantiation: show the FTC their research that backs of advertisement
-litigation
-injunction: during the investigation the company must pull the advertisement
-corrective ads

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Express Falsehoods

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when the advertiser directly lies

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Implied Falsehoods

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-proof
-qualification: even though fine print is there ("results not typical") if it is too fine, they can be fined
-significance: making claims that seem significant but are not
-expert endorsement

**puffery: the FTC is okay with puffery
-ex. "best pizza in the world"

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Test for Jurisdiction

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1. did the defendant purposefully conduct activities in the locale of the court?
2. did the plaintiff's claim arise out of the defendant's activities in this locale?
3. is it constitutionally reasonable for the court to exercise jurisdiction?

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O'Brien Test (Test for the constitutionality of a content neutral law)

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1. advances an important government interest?
2. is not related to suppression of speech
3. is narrowly tailored to achieve the government interest with only an incidental restriction of free expression

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Incitement Test

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1. directed to and
2. is likely to
3. incite or produce imminent lawless action

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Strict Scrutiny Test

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1. the least restrictive means
2. advance a compelling government interest

*very few laws pass strict scrutiny
*compelling interest= in interest of highest order; national security, safety of many, preservation of consitution

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Time,place, & Manner Test

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-content neutral?
-substantial government interest?
-law advances the substantial interest?
-alternative means
-are there alternative means of communication to disseminate message