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81 Cards in this Set
- Front
- Back
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What is Statutory Law?
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actual language of the legislative enactments as well as to any interpretations rendered by the courts
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Explain U.S. supreme court.
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final authority on the meaning of the US constitution, the precedent they set must be followed by federal and state courts when federal constitution is at issue
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Bill of Rights 1st Amendment guards against?
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Prior restraint, flow of information to the public
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Which is more likely to be constitutional post publication punishment or prior restraint?
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Post Publication Punishment
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Explain Strict Scrutenty Test.
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Which means that goverment interference is allowed only if the goverment proves the gravest of justifications, and must prove a compelling intrest
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How can the goverment prove it has a compelling intrest?
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justification of a great magnitude ex. directly protecting the nations existance, safe gaurding life or limb, shielding children from lasting emotional harm.
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Strict Scrutenty test, is employed in...?
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Post Publication
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In the South Carolina constitution in regards to article one section one says?
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All political powers remain with the people
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Checks and balances refers to our governments three branches which are?
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Executive, Legislative, Judicial
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Explain the formation of our current goverment and judicial system.
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13 original colonies gave up power to create the federal goverment in so creating parrallel court sytems federal and state courts with the supreme court at top.appeals to which must concern a constitutional issue
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Differant names between federal and state courts as far as the laws the rule on.
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State - Civil Law
Federal - Criminal Law |
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Explain the case of Near vs. Minnesota.
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Near's news paper was offensive because comments against boot leggers and some anit- semetic remarks, an injuction was filed against the news paper this prior restraint was deemed unconstuntional by the supreme court
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What is Time Place and Manor restrictions?
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It is content neutral restriction (strict scrutiny holds no precedent over these) An example, Columbia ordnance no more then 5 news racks at any corner and no more then 20 at each block and must not be able to tip over in certain winds
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What is Case Law?
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Refers to binding principles and rules that originate from these case by case judicial decisions. Or the set precedent of prior cases.
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What is Common Law?
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Judges create these original legal rules as needed to resolve disputes
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If you publish your magazine or material nation wide you must adhere to the _____ and why?
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Stricktest law, because all the states have different laws concerning offensive material, so if you follow the stricktest law you can never break any of the laws and you dont need to know them all
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Explain case Hustler Magazine v. Falwell.
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The inside front cover of the magazine was a spoof of Falwell's first time having sex original verdict reversed by the supreme courts decision based on the idea that a public person may not recover for emotional distress inflicted by crticle expression without showing in addition that the defendent published with actual malice false statments which were represented as truths (based on the NY v. Sullivan creation of actuall malice)
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Explain what the Clear and Present Danger Test is for.
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an attempt to define the point at which speech comes close enough to triggering seriouse harm that it loses First Amendment Protection
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What are the steps in determining weather the Clear and Present Danger Test applies.
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1-Requires a reasonable fear of serious and imminent danger caused by incitement before speech could be suppressed 2- Reasonable ground to fear that seriouse evil will result if free speech is practiced 3- Evil to be prevented is a serious one
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What is Incitement?
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A stricter version of the clear and preasent danger test adopted by the US
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Explain the Incitement Standard?
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Speech remains protected until the point when it is actully likely to incite unlawful action
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Explain Brandenburg v. Ohio.
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Brandenburg was part of the Klu Klux Klan and made a speech at a rally that was very offensive and was protected under the 1st amedment, and created the Brandenburg Incitment test.
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Explain the Brandenburg Incitment test, and its four steps.
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1- does the expression advocate the use of illigal force or violance? 2- Is it directed toward actully inciting such illigal conduct? 3 - Would the advised conduct be imminent or immediate? 4- Is the expression actually likely to produce that illegal conduct?
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Define Copyright.
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An intangible property rite granted by federal statute to authors of litterary, musical and political works.
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Define Contract.
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A legally enforcable agreement made either orally or in writting.
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A legally enforcable agreement made orally would be considered a?
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Contract
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What case involed a klu klux klan member and what test was derived by it, and what did that test say?
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Brandenburg v. Ohio - Brandenburg Incitment Test must meet these standerds to be considered dangerous- 1- expresion advocate the use of violance or illegal force -2- Is it directed to actully incitting such illegal conduct? -3- Would the advised conduct be imminent or immidiate? -4- Is it likely to actully produce illegal conduct?
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What case involved a news paper priniting of vietnam papers?
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NY Times v. US - goverment tried to stop times from publishing vietnam papers but could not prove they would cause actual harm so NY times was allowed to publish
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NY Times v. US involed which test in its findings?
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Strict Scrutiny Test
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Explain the differance between Libal and Slander.
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Slander is spoken offence while Libal is written ofence
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Define defamation.
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injury to reputation a false allegation of FACT
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What are the 6 things a plaintiff must prove to in order to win a libel case?
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1. Defamatory content, 2. Falsity, 3. Publication to Third Perons 4. Identification 5. Fault 6. Harm
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Define defamatory content in regards to a libel case.
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content which would tend to injure the plaintiff's reputation amoung some respectable segments of society
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Define falsity in regards to a libel case.
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burden has shifted from truth being a complete defense to plaintiffs having to prov libel
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Define publication to third persons in regards to a libel case.
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intentionally communicated to at least one other person
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Define identification in terms of a libel case.
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must prove libelous statement were reasonably understood to apply to him
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Define fault as used in a libal case?
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actual malice or neglagence
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Define harm as used in a libal case?
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Recovery is money compensatory and punitive damages
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Whats the differance between punitive and compensitory damages?
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Compensatory is actual damges while punitive is a way of punishing defendant in the future
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Explain the relevance of nuetral reporting.
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shield media from libal judgments when reporting in a fair, nuatral, and accurate fashion newsworthy allegations made by other public officials or public figures without the requirments of an official ro public setting
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Explain NY Times v. Sullivan case.
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Times ran an add with false information about Sullivan Times won out of fear of future self censorship concerning public officials new fault standard of actual malice
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Define Tort.
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wrongful acts other then a breach of contract for which the law gives the injured party some legal remedy against the wrongdoer in civil court. Examples include invasion of privicy, trespass, libal infliction of mentall disstress, and neglagence
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Invasion of privicy is classified as what kind of case?
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State Law Tort
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Commercial appropriation of name or likeness explain.
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See notes pg.5
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Public disclosure of embarassing privite fact explain.
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See notes pg.5
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False Light or placing an indavidual in false light explain.
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See notes page 5.
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Intrusion upon physical seclusion explain.
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See notes page 5/6
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Civil cases/breach of contract are tried at what type of standard compared to criminal cases?
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Standard of proof in most cases must be clear and convincing evidence lower then criminal cases.
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Define invasion of privacy.
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Publication of private facts that offends ordanary decency (no set standard each sate recognizes it in there own way)
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Define Intrusion?
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goint into a place your not allowed to go to gather information and distribute it or a tort consisting of highly offensive invasion of a persons physical seclusion or private affairs. One of the legally recognized forms of invasion of privacy.
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Define appropriation?
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The commercial use of someones name or likeness without consent. this is a recognized form of invasion of privacy sometimes called missappropriation.
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Define Public Record?
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The right to accuretly disseminate information that appeared in an open govermental procceding or in public documents without incurring liability for defamation or for publication of private facts.
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What type of accusation can be attributed to these charecteristics one its is not recognized in South Carolina, and two can be in a flattering fashion base ball player "war hero"
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A false light accusation.
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Define Trademark.
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A distinctive mark used in commerance to indentify and authenticate the goods of a particular manufactuarer. Trade names and service marks perfom similar functions for bussness names and there servaces.
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Central Hudson Test
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Test for commercial speech - 1. Is the commercial message either misleading or related to unlawful activity (if so it is not constitutionally protected and may be banned. If not - 2. Does the goverment assert a substantial intrest to be achived by the restriction of speech 3. Does the restriction directly advance this subbstantial intrest 4. Is the restriction no more extensive than necessary to further the gov. intrest
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Test concerning commercial Speech is?
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Central Hudson Test
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Form of speech offorded less protection by law would be?
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Commercial Speech
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Central Hudson v. NY
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Hudson comp. was advertising its electricity state said this promoted a waste of electricity and over all hurt the gov. - State won the case and the banned was upheald
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Lanham Act
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provides bussness people with a legal tool against false advertising by other in the market place
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Test for obsenity. and case it was derived from.
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Miller Test, Miller v. California
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Miller Test
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Deemed obsene only if 1. average person applying contemparary community standards would find that the work taken as a whole appeals to the prurient intrest 2. the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law 3. The work taken as a whole lacks serious literary, artistic, political, or scientific value.
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If material is of a Prurient intrest it is?
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material was intended to excite lewd, lascviouse, or morbid thoughts about sex.
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What case decision first decided obsenity was not protected by the 1st amendment? and what was the definition of obcene by this verdict?
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Roth v. US - defined obcenity as hard-core sexual material that is utterly without redeeming social value
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Valentine v. Chrestensen
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early case concerning commercial speech, man submarien handed out fliers to advertise for against city ordance littering supreme uhheald but only because fliers were for a commercial purpose
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Virginia State Board of Pharmacy v. Virginia Citizans Consumer Concil
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Pharmsists were trying to advertise there prices, and being stopped by VA tey were allowed to keep ad. how ever because without that it was keeping the public ignornant (prior to central Hudson test)
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Bates v. State Bar of Arizona
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Ban on Lawyers advertising not deemed constitutional because kept public ignorant, could only ban if information was wrong or misleading (prior to central Hudson test)
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44 liquormart, Inc. v. Rhodes Island
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The ban on liquor advertising much to broad and over flunked the central hudson test
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Expression, Originality, Fixation are all examples of?
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Protected Works
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Three examples of protected works are?
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Expression, originality, and fixation
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Explain expresion in refreance to protected works.
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particular manner of expression is covered by copyright i.e. the phrasing a news story is protected but the event itself is not protected
• If there is only one way to state something, it is not copyrightable i.e. E=mc2 • General plot of a screen play, cannot be protected nor basic idea for a literary character |
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Explain Originality in referance to protected works.
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there is no work for work to be unique (differs from trademark and patent law)
• Compilation – a work formed by the collection and assembly of preexisting information. Individual bits of information contained are not original but the way it is selected and arranged through independent effort may be protected • Collective works – compilations made up of contributions that are themselves expressive works i.e. magazines containing freelancers articles – copyrightable • Derivative work – based on one or more preexisting works and recasts or adapts those preexisting works in some way |
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Explain fixation in refernce to protected works.
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– in order to be copyrightable it must be fixed in tangible form…must contain a medium that the work can be reproduced
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Explain Ownership of copyright. (everything)
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rights in copyright are not acquired through any formal procedure, such as registration or public notice. Rather, copyright ownership begins at the moment a work that can be protected is created
• Ownership of a tangible object doesn’t always include ownership of the copyright i.e. A sends a letter to B. B holds the letter but A is the owner of the copyright • Work made for hire – buyer typically owns the work employee makes • Joint work – prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole – INTENT is critical • Government work created by govt employees is not protected • Length of protection • Sole author – authors life +70 years • Joint Author – Lfe of longest living author +70 years • Work for hire – 95 from year of first publication or 120 years from creation whichever comes first |
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Infringment of copyright occurs....
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when one or more exclusive rights are violated
• A change in medium does not avoid infringement • TO PROVE INRINGEMENT PLAINTIFF MUST SHOW VALID COPYRIGHT INTEREST AND ESTABLISH THAT THE DEFENDANT ENGAGED IN SUBSTATIAL, UNAUTHORIZED COPYING FROM THE PROTECTED WORK • Must establish that the defendant had access to the copyrighted work prior to creating the alleged infringement |
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How do you enforce a copyright?
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• Cease-and-desist letter
• Injunction ordering the defendant to stop using the owner’s work • Sue for actual damages • Sue for statutory damages – when amount of loss is hard to determine • If done willfully and for purposes of financial gain, copyright infringement can also amount to a criminal offense |
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Explain Licensing Agreements in refernce to copyright.
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• Licensing – transfer of limited copyright interests with the primary owner retaining the bulk of the rights
• Exclusive license are much more expensive – MUST BE IN WRITING |
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Explan Fair Use and Defnce in regards to copyright.
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• Purpose and character of the use – nonprofit/education have greater protection
• Nature of Copyrighted Work – published/unpublished? Fact/fiction? Available/not available? • Portion of Worked Used • Economic Effect |
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Expalin Trademarks (fully).
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governed by both federal and state
o Mark must be used in connection with public distribution of goods or services – only then it is legally secured • Protection remains as long as it is in use • If legally registered protected for 10 years • Cant reserve for future • MUST BE DISATINCTIVE |
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How does Broadcast regulation work?
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Radio spectrum is considered a scarce source
o Communications Act of 1934 o Telecommunication Act of 1996 |
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Red Lion v. FCC
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o Because of the limited scarcity of the radio spectrum, public ownership, immediacy of broadcast - government can regulate licensing and content
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Miami Herald Co. v. Tornillo
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court struck down a statute that attempted to give political candidates a right of reply in newspapers
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