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118 Cards in this Set
- Front
- Back
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What is the first word of the first amendment? Why is it important?
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Congress. After 1925 the 1st amendment applied to everyone.
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What is the story of the Nauvoo Expositor? Was it legal at the time?
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JS ordered that the Expositor be burned down because it produced material that was considered slanderious and libelous. It was legal and there was a precedent for it.
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5 Exceptions to the first amendment
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Hate Speech, obscenity, copyright infringement, libel, appropriation
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Magna Carta established that:
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The King was not God
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Colliding Rights:
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Where two valued principles come into conflict
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What are the Five sources of Law?
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Common Law
Constitutional Law Statitutory Law Executive Orders Law of Equity |
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Common Law - what are 3 things we can do with the precedent?
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Accept it, Modify it, Overrule it
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Law of Equity -
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"the fair thing to do" - Example of the stalker.
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Statutory Law
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Decides before it happens, written set of codes, all criminal laws are statutory.
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Executive Orders
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Government pardons, law of the land, etc.
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What type of law is the constitution?
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Constitutional Law
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Original Intent
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What were the framers intent, what did they want it to mean?
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AdHoc Balancing Test:
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Look at individual facts for a decision instead of a general view. (Driving under the influence - took a legal prescription, wife went into labor, had to get to the hospital, but his awareness was impaired...take things into consideration..)
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Prior Restraint
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a form of censorship in which one is prevented, in advance, from communicating certain material, rather than made answerable afterwards. Prior restraint is particularly restrictive because it prevents the forbidden material from being heard or distributed at all
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Marketplace of ideas
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belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an important part of liberal democracy... "hopefully the truth is the stuff that sticks.."
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What are some instances where prior restraint laws may take effect?
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obstruction of military recruitment, publication of troop locations, numbers nd movements in time of war, obscene publications, incitements to violence, forcible overthrow of government or fighting words likely to promote imminent violence.
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Content Specific laws regulate what is being _____; they single out certain messages for punishment because of __________ disapproval of the ideas or subjects they represent.
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said and government
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Content neutral laws regulate where, when and how ideas are expressed they often advance public interests unrelated to _______.
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Speech
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Laws that incidentally and unintentionally affect speech as they advance other important government interests are _______ _______?
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Content Neutral
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The court is much more willing to find _______-_______ laws constitutional.
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Content Neutral
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Content-neutral laws generally regulate the ___-______ elements of a message.
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non-speech
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Content neutral laws are called ____/_____/______ laws.
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Time/Place/Manner
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Three part test to pass as to whether a law is content neutral (AUN)
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Advances important gov't interest
Unrelated to speech Narrowly tailored |
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Traditional Public Forum
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a location with a long standing tradition of being used for expressive activities.
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streets, parks, sidewalks is an example of which forum?
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Traditional Public Forum
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Designated Public Forum
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A forum set aside for expressive activities
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University meeting facilities, municipal theaters and school board meeting rooms are examples of which forum?
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Designated Public Forum
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Nonpublic Forum
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Places where speech conflicts with proper functioning of government services
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Prisons, military bases, polling places, a school district's internal mail system and airport terminals are examples of which forum?
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Nonpublic forum
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Private property
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Generally not a public forum, however when opened up to the public, can be classified as a public forum.
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Generally shopping malls, are private property. However, in California the Supreme Court decided that the Pruneyard Shopping center could be a public property. However, in Utah the Malls are Private. California Malls are public. T/F
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T
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Miller Test
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1. Appeals to prurient intrest
2. Depicts in a patently offensive way sexual conduct 3. SLAPS |
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Indecency is __ and Obscenity is ___.
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IN (legal) and Obscenity is OUT (illegal).
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ZONING - Community can't __________ ________ or ___ sexually oriented businesses.
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Significantly reduce or bar
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ZONING - Ordinance must be justified showing that it furthers a _____ interest.
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State
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ZONING - Ordinance must be narrowly drawn, so as to not restrict more ______ ___ _________.
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speech than necessary.
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3 points of Zoning Ordinances regarding sexually-oriented businesses.
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1. Bar or significantly reduce number of adult business
2. Furthers state interest 3. Narrowly drawn, so as to not restrict more speech than nessary |
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6 points of Libel Law (SPODFFa)
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Statement of Fact
Published Of and concerning the plaintiff Defamatory False Defendant is at Fault |
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In Libel Law all six elements must be what in order to successfully sue for libel - for this reason libel suits are hard to win.
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Must prove all six points
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Libel concerns a persons __________ not their _________.
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Reputation not their Character
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Libel must actually ______ the person.
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Damage
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T/F very few people are libel proof.
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T - examples would be OJ simpson, Dr. Kevorkian
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A dead person cannot sue for libel, however the family can in what instance?
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If the suit is brought about before the death, the family can continue the suit.
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LIBEL - Statement of Fact - must be capable of being objectively ________.
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Verified
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LIBEL - Statement of Fact - Not a matter of whether it is true or not, but is it capable of being ____ or _____.
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True or False
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T/F - if someone starts a statement with "it is my opinion" it automatically means that it is not a statement of fact.
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F - it still could be considered a statement of fact
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Best defense for LIBEL - Statement of Fact claim?
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The statement is not a statement of fact, but merely an opinion.
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A Parody is generally ___________ for LIBEL - Statement of Fact
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Permissible - particularly if it is clear that it is the kind of thing that nobody would believe anyway.
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LIBEL - That is published - if one person publishes it and the person whom it is about sees it, how many people need to see it to qualify for a libel suit?
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ONE
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If you republish something somebody else wrote, you could be held liable. T/F
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T
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ISP's are immune from liability from LIBEL - That is published, because:
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courts have held that they cannot reasonably be required to "police" the content going over the internet.
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Best defense for LIBEL - That is published?
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It is not published (no one other than the publisher and the person allegedly defamed actually saw the statement)
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LIBEL - Of and Concerning the Plaintiff - The plaintiff does not need to be mentioned by name but it has to be what?
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clear that the statement is about that particular plaintiff.
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What is the best defense for LIBEL - of and concerning the plaintiff?
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The plaintiff was not specifically named, or that it was not clear from the statement that it was about the plaintiff.
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LIBEL - The statement is defamatory, what is the definition of defamatory?
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a communication which has the tendency to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him.
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Two types of LIBEL - The statement is defamatory, what are they?
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Libel per se - "by it self" it is a statement of fact and libelous.
Libel per quod - a statement that would generally not be libelous, but in the circumstance, it can be found to be so. |
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Which type of libel would this statement be? Kate Moss collapsed from a drug induced coma
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Libel per se
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Which type of libel would this statement be? Bob appeared to have a really romantic evening with Sally last friday?
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Libel per quod
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best defense for LIBEL - The statement is defamatory?
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The statement is not necessarily defamatory, and that no one would really think less of hte person after hearing the statement (it is parody, the person is libel-proof, etc)
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LIBEL - The statement is false - if the statement is true, no matter how terrible it is, it is not libel. T/F
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T
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LIBEL - The defendant must be at fault - What are the two types of fault?
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Negligence and intentional fault
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LIBEL - The defendant must be at fault, negligence is when
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the defendant did not intentionally commit the act, but simply breached a duty of care that was theirs to take.
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Most libel cases do not involve negligence. T/F
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T
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LIBEL - The defendant must be at fault, intentional fault is when
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there is actual "malice" that comes into play
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LIBEL - The defendant must be at fault. Actual malice is either:
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1. Actual knowledge of falsity (in other words lying)
2. Published with a "reckless disregard for the truth. |
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A "public official" is an individual who is:
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elected to a public office, has a degree of public trust, who exercises some sort of discretion, and who oftentimes has the ability to spend public funds.
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It is harder for a ______ _______ to sue for Libel.
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Public official
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DISRUPTIVE SPEECH - Methods for determining whether speech is protected:
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1. Categorical Balancing Test
2. "Not protect a man falsely shouting fire in a theatre causing a panic" 3. Whether the words are of such a nature as to create a clear and present danger |
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DISRUPTIVE SPEECH - Fighting words (Brandenberg Test)
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1.Directed at an individual or a group
2. Are likely to inflict emotional harm and/or trigger immediate violence. |
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When can schools regulate speech?
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a. when the student expression disrupts education
b. is lewd or of low conduct c. when the schools sponsor or fund the speech |
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Private schools are not subject to the same restrictions that public schools are. T/F
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T
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Brandenburg Test is used to consider when words are "fighting words" and thus unprotected speech if they are:
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Intended to, and Likely to, incite or produce immediate illegal activity or violence.
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T/F Constitution says nothing about Privacy
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T
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The court through the years has said that the 3rd, 4th, 5th, and 9th amendments cast a shadow over the issue of privacy and that by "_______ _______ ___ _____" the constitution gives rights to citizens regarding privacy.
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Read between the lines
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PRIVACY TORTS - Appropriation is when you do all of these three:
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1.Using a persons name, picture, likeness, voice, or identity
2. For advertising or other commercial purposes 3. Without permission |
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What are defenses for PRIVACY TORTS - Appropriation?
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Newsworthiness, Transformativeness (the work was transformed - think Tiger Woods Picture)
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PRIVACY TORTS - Intrusion definition
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There is a reasonable expectation of privacy, which was intentional, and highly offensive to a reasonable person.
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Reasonable amount of privacy? (PRIVACY TORTS)
a. sitting next to someone at a restaurant b. participation in a public chat room c. Sending of an e-mail? d. Wiretapping e. Eavesdropping through a wifi-internet connection? |
Probably not
Probably not at home- yes, at work, no no Probably not but still up to debate. |
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What is the best defense for PRIVACY TORTS - Intrusion?
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Consent. If the plaintiff consented, then there is no intrusion.
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PRIVACY TORTS - publicity given to private facts: Definition
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a. The publicizing of
b. Private, intimate facts, c. That would be highly embarassing to a reasonable person, and d. Are not of legitimate concern to the public |
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What is the best defense for PRIVACY TORTS - Publicity given to private facts?
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The information is truthful and was lawfully obtained from public records
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PRIVACY TORTS - private facts generally concern:
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Financial Information, Medical Information, Domestic Difficulties and Sexual Activities
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PRIVACY TORTS - private facts cannot concern:
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Information that is in a public record or information that is revealed by the person him/herself.
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PRIVACY TORTS - private facts: "Legitimate concern" involves what?
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stories about catastrophies, diseases, divorces, crimes, etc. and may include private information about those involved.
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PRIVACY TORTS - private facts: once a person is part of a newsworthy event, their lives are often ____ _____.
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Open books - newsworthiness does not diminish over time.
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PRIVACY TORTS - False light: Definition.
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a. publicizing
b. false facts c. about someone who is identified d. That would be highly offensive to a reasonable person; and e. Acts intentionally, recklessy, or negligently |
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PRIVACY TORTS - False light: Because of its similarities to libel, the defenses are generally:
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The same as libel defenses
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EMOTIONAL DISTRESS and PHYSICAL HARM - INTENTIONAL Infliction of emotional distress definition...
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1. Defendant's intentional or reckless conduct was extreme and outrageous - beyond the bounds of decency tolerated in civilized society.
2. Involving actual malice, if the plaintiff is a public official or figure, and 3. Caused the plaintiff's severe emotional distress. |
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Defendants usually win cases regarding EMOTIONAL DISTRESS and PHYSICAL HARM because:
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the courts don't find that the media acted in an outrageous manner.
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EMOTIONAL DISTRESS and PHYSICAL HARM - NEGLIGENT infliction of emotional distress definition
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1. The defendant had a duty to "due care"
2. Negligently breached that duty 3. Causing the plaintiff's severe emotional distress, and 4. The breach was the proximate cause of the plaintiff's emotional distress. |
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When the defendant should have known that negligence could cause harm to the person or people to whom he or she owed a duty this is called:
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Due Care
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4 Points of Ethics
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Deontological
Egoism Situational Consequential |
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4 Points of Ethics - Deontological
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"do what is right let the consequence follow" Focuses simply on the rightness or wrongness of the actions themselves, as opposed to the rightness or wrongness of the consequence of the actions.
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4 Points of Ethics - Egotistic
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Self-Centered Action
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4 Points of Ethics - Situational
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Right or wrong conduct depending on situation we are in. Comparable to ad hoc balancing test (weigh situation, make decision)
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4 Points of Ethics - Consequentialist
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Right is defined by the amount of good produced as a consequence of action.
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FOIA stands for -
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Freedom of Information Act
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FOIA requires that agency records ....
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be provided to anyone to requests them.
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Newsgathering - The First Amendment is both a...
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"Sword and a Shield"
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As a shield, it (first amendment) is much what....and why?
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Stronger, scales are tipped in favor of speech
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As a sword, it (first amendment) is fairly what.....and why?
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weak, because reporters "are not special" they may only use the same tools for information gathering that everyone else may use.
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Media and the Courts - main concept is
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Competing objectives
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What is Competing objectives, in Media and the Courts?
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have a fair and speedy trial and also respect the first amendment by allowing journalists to report on the proceedings and citizens be informed.
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9 tools that judge has to balance competing objectives:
(KNOW HOW TO APPLY THE TOOL IN A CERTAIN SITUATION) |
1.Continuance or delay or trial (move the trial to a later time)
2.Change of venue (change location of trial to avoid publicity and provide a more fair jury) 3. Sequestration of jury (to protect them from biased media coverage) 4. Extensive voir dire (questioning the jury to find a jury that is fair and impartial) 5. Gag orders (ordering those involved with the case to not discuss it until the case is over) 6. Witness protection (to ensure that the witness is not intimidated into saying something that is not true) 7. Instructions to the jury (to make sure that the jury only judges the case on the merits and the admissible evidence) 8 Retrial (if the first trial is not fair, or evidence that is inadmissible is introduced) 9. Limitations on media attendance (closing the court, prohibiting cameras, etc.) A judge may close the court if: There is a substantial threat to a fair trial Closure is “narrowly tailored” to eliminate the threat, yet still keeps the court as open as possible No alternative exists to ensure a fair trial Closure will effectively eliminate the problem |
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Marbury v. Madison did what?
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Established the principle of "judicial review"
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What does judicial review mean?
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It states that the Supreme Court is the ultimate decider of what is or is not constitutional
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Miller Test
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A person who:
1. applying contemporary local community standards finds the work appeals to prurient interest 2. The work depicts in a patently offensive way sexual conduct 3. SLAPS |
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Three types of IP
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Trademarks
Copyright Patents |
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IP Law - Trademarks are...
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a name, word, phrase, logo or symbol
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IP Law - Copyrights are...
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the "right to copy" an expression of an idea and is obtained the moment that any expression is placed in a "fixed" medium
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IP Law - Patents are...
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Definition: rights given for a period of time for disclosure of an invention.
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IP Law - Copyright: is it necessary to obtain a copyright from the registration of congress?
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No, but it proves that you do have the rights.
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How long does a copyright last?
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70 years
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Copyright DOES NOT cover
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things that lack originality (phone book, government works, freeware, lamp, car, chair)
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Fair Use - isn't it a PANE to play fair?
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Purpose - what are they using it for?
Amount - How much did they use? Nature - Where and how did they use it? What purpose? make money? Effect - What is the effect? |
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If there is a law that discriminates on the LAW of something, it is content
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specific
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When can schools regulate speech?
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Distrupts education
Lewd, low conduct Sponsor of school fund the speech |
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Private schools and public schools are all held to the same standards. T/F
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F - Private can regulate more.
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