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140 Cards in this Set
- Front
- Back
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The First Amendment |
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. |
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What is the hierarchy of U.S. Law? |
Constitution State Constitutions Statutes (1. Congressional Statues) (2. State Legislative Statutes) Municipalities |
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What is common law and who dictates it? |
"Judge-made law"; Judge written law in absence of everything else Precedent; what the courts have done previously |
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Translate stare-decisis |
let the decision stand (judges don't always want to make new laws) |
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What are the four sources of law? |
Constitution Common Law Statutes Administrative Laws |
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What are statutes? Who passes them? |
Laws passed by lawmakers (Congress, state legislators) Lots of statutes that have been passed that have nothing to do with the Constitution, but are necessary Statues trump common law |
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What is administrative law? |
Laws made by "bodies" created by government Trumped by statute, but trumps common law |
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Hierarchy of Courts |
U.S. Supreme Court State Supreme Courts Federal Appellate Courts Federal District Courts |
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What is a precedent? |
Previous decision given high weight, but courts not bound by it Lower the court, the more precedent matters Overturning precedent is quite rare |
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Define holding |
How a case is decided and on what basis |
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What is dicta? |
Reasons around/for a holding, but not the holding itself --> explanation of the holding |
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What happens when one petitions for certiorari? |
Request for the Supreme Court to hear In court system, everyone is entitled to one appeal |
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What is a write of certiorari? |
Grant from the SC to hear the case (rare; about 150/year) Must be a constitutional question apparent in case |
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What is procedural justice and what does it do for American citizens? |
Procedures of law - liberties/protections you're most familiar with Bill of Rights is a document of procedural justice Provides citizens the right to a fair and speedy trial, right to an attorney, appeal State must treat everyone fairly and the same Protects all rights equally! |
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What is substantive justice and what is it based in? |
Sub. justice is based in merit -- you get the justice you deserve What do you merit because you're a citizen? Full protection of the law/equal protection Merit should be a neutral term - if you have something to say, you should be able to say it e.g. if you murder someone, you merit a stiff sentence |
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What does substantive justice insist on and how does it relate to positive freedom? |
To be free, you must have the means to realize your rights -- 14th Amendment! Positive freedom: Matter of being able to achieve your potential, not merely have potential Tension that arises is whether and what rights the state is obligated to protect -- what do you merit and what must you merit? e.g. we want a criminal justice system, but we only want guilty people jail |
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What kind of government is the U.S.? |
A republic!
Where the power is help by the people and people give their power to leaders who represent and serve their interests These leaders are responsible for helping ALL interests, not just a few |
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What are the three branches of the U.S. government and what, briefly, do they do? |
Legislative (house and senate) - passes laws Executive (president) - administers laws Judicial (Supreme Court/judges) - interpret and enforce laws |
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Legislative Branch |
House - 435 members Senate - 100 members Bill must receive a majority vote in both bodies and be signed my president to become a law |
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Which articles/clauses do the Legislative Branch oversee? |
Article 1, Section 8: enumerates congressional powers Clause 3: commerce (trade between states) Clause 7: establish post office (protects person to person communication so everyone knows what's going on) Clause 8: copyright clause cause 18: elastic clause |
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What does the executive branch oversee? |
Runs various federal agencies (treasury, education, FCC) |
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Supreme Court |
9 Justices Term begins first Monday in October, opinions usually issued late June No juries/witnesses just lawyers Arguments last 1 hour with justices frequently interrupting lawyers |
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How do Conservatives view the Constitution? |
The constitution is a cooked document Words meant what they meant when the constitution was penned! The answer can be found in the text states rights > federal power |
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How do Liberals view the Constitution? |
Living, growing, organic document It's no longer the 1770s, the constitution is short, and society is not the same Constitution has important sacred words whose interpretation changes as society changes |
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How many SC justices need to grant cert? |
4/9 justices only 150 certs granted each year |
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Bill of Rights |
Madison took lead and proposed 12 amendments on June 8. 1789 - reduced to 10 State was viewed as powerful so controls were placed on federal, not state governments Power not centralized in DC til FDR |
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What are the clauses in the first amendment? |
Establishment free exercise speech press assembly and petition |
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What did the 14th Amendment do? When was it ratified? |
Former slaves are citizens All citizens have equal protection of the law (procedural justice) No state can deprive a person of life, liberty, or property without due process of law (e.g. speeding tickets) Ratified in 1868 |
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What guarantees did the Constitution of 1788 provide? (hint: there are 8) |
1. Writ of habeas corpus 2. no bills of attainder 3. no ex post facto laws (you're in the clear til they make it illegal) 4. titles of nobility are illegal 5. required public jury trials; all crimes must be tried by a jury 6. strict limitations placed on treason 7. republican form of gov. is guaranteed to citizens of every state 8. no religious tests for holding office supremacy clause (federal law > state law) |
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Define habeas corpus. Why is this important? |
Let there be a body If I accuse you of something, I have to show you the evidence This is what makes it so you can't be thrown in jail without being told why |
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Because of _______ the state must respect the legal rights owed a person. |
Due process |
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What does equal protection ensure? |
Legally, the state must treat everyone the same |
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What three functions are in the public sphere and what do they do? |
Representatives: "Impartial guardians of the public interest" deliberate -> communicate! Media: present issues, foster competition, seek information from appropriate experts Citizens: ultimate authority, expose themselves to available information to make best judgment possible |
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What is the public sphere theory? |
media -> citizens -> representatives -> media network of communicating information and points of view space of self-governance; how we decide what kind of social world we have We self-govern about everything, e.g. sports, fashion, etc From the media, we see what to wear |
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Who signed the Magna Carta, when, and what did it accomplish? |
1215 by King John who ruled like a tyrant (divine right of kings) Planted seeds of liberty 1) justice not for sale and can't be denied 2) jury trials democratic decision making requires free expression! Viewed as foundation for constitutional liberty in England and US |
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What is the marketplace of ideas? Which SC justice was big on this idea? |
Instrumental approach to the 1st Amend that has won favor with the courts Facts, opinions, and policies are tested in competition with other facts, opinions, and policies, with the best ideas winning majority support Orig. with Milton and Mill Justice Holmes in his dissent in Abrams v. US "that the best test of truth is the power of the thought to get itself accepted in the competition of the market" |
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A healthy public sphere requires ____. |
Free speech |
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Why are Supreme Court justices not elected? |
They need to be free to protect minority rights SC is subject to words in the Constitution, not the will of the people |
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Where and when was freedom of speech born and to whom did it apply? |
Athens, between 400 and 800 BCE the aristocratic rulers allowed certain classes of citizens to express their opinions without fear However, the exercise of free speech was reserved for adult male citizens |
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How did Republican Rome feel about personal slander? |
Laws against personal slander are well documented There was even a statute prohibiting playwrights and actors from slandering their fellow citizens by name in dramatic productions |
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What are the two requirements for free speech to be a civil liberty? |
1. Citizens must be protected by law from arbitrary arrest and imprisonment 2. The law must guarantee all citizens the right to speak and write |
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In England, who initially could speak freely? |
Monarch and high clergy (= divine right of kings) Then Parliament, but only during sessions inside the halls of Parliament Then to all citizens EXCEPT the press, who could be jailed for commenting against the government; yet bad tendency was the norm |
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How did the English attempt to control speech content? |
Libel: any prohibited message, not just personal insult Four types of libel: 1. Seditious libel (speaking against king, gov. officials, or gov.) 2. Private libel (defamation; third party present and truth as defense) 3. Blasphemous libel (religio-moral heresy and "False teachings"; eg Martin Luther) 4. Obscenity (Hicklin rule) |
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What did William Twyn (1663) advocate? |
Published A Treatise of the Execution of Justice advocating the right of revolution -> if government becomes illegitimate/tyranical, we should have the right to overthrow it he was hanged, emasculated, disemboweled, quartered, and beheaded |
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What is the Star Chamber? |
1542-1641 est. by monarchs, judicial arm of the Privy Council Vigorously pursued those who published seditious opinions or whose speech included "lewd and naughty terms," "unfitting words," or "Unseemly opinions" Victims were tried without a jury and torture used to exact confessions With councils like these, there was little need for prior restraint |
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How did Henry VIII impact free speech in England? |
1529: banned books of Martin Luther for speaking against RCC 1531: banned church and est. himself as ruler of Anglican church "False teachings" led to book burnings, excomm of authors, publishers, and sellers, and eventually licensing |
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What did Lord Campbell's Act allow and what year was it enacted? |
1857 allowed the search, seizure, and destruction of obscene publications also called the Obscene Publications Act |
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What is the Hicklin Rule and in which case did it appear? To which type of libel does it pertain? |
1868 case of Regina v. Hicklin Allowed a publication to be judged for obscenity based on isolated passages of a work by their influence on most susceptible readers, such as children or weak-minded adults What is the effect on 8th grade boys? sex, swearing, etc -> anything impure pertains to obscene libel |
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When was the Gutenburg printing press invented? |
1450 over 1000 printers at work by 1500 |
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What did the control of the printing press result in? |
Licensing and copyrights! Clergy instituted licensing to control printing, which was a form of prior restraint |
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What did the Proclamation of 1538 require and who instituted it? |
King Henry VIII took over the licensing system and decreed that owning a printing press and publishing a book needed the approval of the crown; required license to own a press or publish a book |
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What is prior restraint and what does it lead to? |
Censoring of a message before it is communicated
Leads to a "chilling effect" - fear of punishment leads to a fear to speak |
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What is ex post facto punishment? |
= "After the fact" when punishment occurs after something has been said or published |
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What did Queen Marry do in 1557 to impact the control of the printing press? |
est. England's first copyright law by giving the ownership rights to a guild, the Stationers Company, who became rich in return for protecting the crown Queen Elizabeth reconfirmed this monopoly in 1559, but the law was not renewed when it expired in 1694 |
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What is the Statute of Anne?
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1710 - Parliament declared that copyright was no longer a publisher's right (as it had been under Mary and Elizabeth), but an author's right didn't take full effect til 1774 |
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Who were three early free speech thinkers? |
Blackstone - against prior restraint, but you could be punished after Milton - against prior restraint but because it weakens character and discourages learning Founding fathers believed what Milton and Blackstone believed Mill - free speech is indispensable to search for truth |
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What did William Blackstone write and what were his views on free speech? |
Commentaries on the Laws of England free speech = absence of prior restraint proposed bad-tendency test for constraining speech |
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What is the "bad tendency" test and who coined it? |
William Blackstone Speech could be punished if it had a tendency to subvert the government, corrupt society, or harm a person's reputation -> "Create animosities" or "disturb the public" Justice Holmes: "a little breath would be enough to kindle a flame" |
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What did John Milton write and what were his views on free speech? |
Areopagitica (1644) - published without a license! Parliament should abandon prior restraint for 4 reasons: 1. developed by those in low regard (those who opposed Reformation) 2. weakens character 3. doesn't work (censored ideas become known regardless) 4. discourages learning and search for the truth |
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What did John Stuart Mill write and what were his views on free speech? |
On Liberty (1859) Free speech justified for 3 reasons: 1. censored opinion may be true and accepted opinion may be in error 2. even truth needs to be challenged and tested 3. there's probably some truth in all opinions |
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How did the colonies control communicators? |
At first, only a few powerful people could speak freely, like the clergymen and royal governors (eg John Winthrop) Then elected officials got the right Not until after Bill of Rights did citizens get right of free speech |
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Why are religion and free speech included in the same amendment? |
People came to America originally to be hyperreligious, not to practice religious freedom, which had a bearing on free speech |
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In which colonies were the controls on religious expression most severe? |
Massachusetts, New Hampshire, Connecticut (all Puritan), but also in VA and the Carolinas (Anglican) MA, NH, and CT were governed by theocratic principles, meaning the clergymen claimed divine sanction Quakers were executed as heretics VA and the Carolinas banished many Puritan and Quaker clergy and ALL Catholic priests |
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How did the liberal colonies define "tolerance"? |
Maryland, RI, and PA only meant that other Christians could worship as they chose; didn't protect non-Christians or those who opposed the beliefs and practices of est. Christian groups Maryland had the death penalty for blasphemy |
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What was the Great Law of 1682? |
In Penn, punished profanity and required church attendance |
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What is the Zenger case and when did it occur? |
1735 - publisher John Peter Zenger accused NY gov. William Cosby of incompetence, favoritism, jury tampering, and rigging elections Trial judge directed jury to find only on fact of publication, not content Defense lawyer, Andrew Hamilton, advised jury to argue that truth was a defense -> jury found Zenger not guilty because what he wrote was true |
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What is the significance of the Zenger case? |
Didn't change the law, but began a trend toward more press freedom Est. the precedent that truth is a defense in libel cases |
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How were women controlled as communicators prior to WWI? |
Although the BofR allowed women to speak, there were many societal constraints 1833: women admitted to college at Oberlin, but not allowed to speak in class |
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In what two main ways was the communication of blacks controlled? |
1. limited education opportunities, so reduced prospect that a black could effectively communicate 2. used persuasion, repressive laws, and extra-legal intimidation and societal constraints -most repressive law was the slave code |
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Seditious libel has been a threat three times in US history. When were these three times? |
1. Federalists tried to punish their political rivals using the Alien & Sedition Acts of 1798 (24 Republican editors and a number of citizens including Ben Franklin's grandson) 2. Civil War 3. Prior to WWI |
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What were the four Alien & Sedition Acts of 1798? |
1. Naturalization Act - changed citizenship residence requirement from 5-14 years 2. Alien Act - permitted Pres. to expel aliens he believed were dangerous/treasonous 3. Alien Enemies Act - permits President in time of war to have any alien subject to an enemy power apprehended, restrained, secured, and removed (only one still in effect) 4. Sedition Act - punishes any false, scandalous, or malicious writing against gov. |
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What effect did Elijah Lovejoy have on abolition and free speech? |
Speaking in favor of abolition was discouraged and even illegal in some states Lovejoy (editor of St. Louis newspaper) condemned a mob for burning a black man alive so in ILLINOIS a mob set fire to his press and shot Lovejoy -> from that moment on, abolition and freedom of the press merged into a single issue |
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What two messages did the suppression of sedition focus on before, during, and after the Civil War? |
1. ones urging freedom and justice for blacks 2. wartime messages that were critical of both the North and South governments |
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What events prior to WWI caused a number of states to pass sedition statutes? |
Growth of the labor movement and accompanying strikes; people believed Capitalism created an unfair class system 1886 - strike against McCormick Harvester Company, which resulted in a bomb in Haymarket Square 1901 - McKinley assassinated by an anarchist 1905: Industrial Workers of America wanted a Marxist gov. |
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All defamation statutes are at the ______ level. |
State Nearly all states passed anti-defamation laws Defamation of private persons not protected by First Amendment |
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What did religio-heresy control look like in the US prior to WWI? |
Followed British common law practices Prosecution occurred at state level |
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What happened in People vs. Ruggles? |
1811 Ruggles said "Jesus was a bastard and his mother was a whore" Convicted of blasphemy Justice Kent of NY Supreme Court: It's wrong to scandalize Christ not because it was anti-religious but because it was "a gross violation of decency and good order" |
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What was the first federal obscenity statute and when was it passed? |
Tariff Act of 1842 barred important of all indecent and obscene prints, paintings, etc. into the US |
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What did the Postal Act do? |
1865 - prohibited circulation of indecent materials through the mail |
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How did Anthony Comstock contribute to moral heresy in the US? |
Comstock was the nation's premier crusader against "vice" Comstock Acts of 1873 - he singlehandedly lobbied Congress for prohibition of the mailing of any material concerning birth control or abortion |
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What did Davis v. Massachusetts decide? |
1895 Minister Davis preached a sermon on Boston Common w/o a permit and fined and required to pay fees Ruling stated that speech can often be limited by time, place, and manner, but cannot simply be prohibited, because a person must have a reasonable way to get their message out Holmes: "For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his own house" |
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What was the trend of court rulings as it pertains to political heresy from the colonies to 1919? |
Bad tendency - "nip it in the bud" states that speech has the tendency to harm The purpose of the First Amendment was to prevent prior restraint upon publications, but punishment after was acceptable, even encouraged |
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Turner v. Williams Year: ? Case: ? Significance: ? |
Year: 1904 Case: Anarchist Turner couldn't be admitted to US because tendency of his views were so dangerous to public; Congress said no action or incitement on Turner's part was required, only the tendency of his views Sig: radical expression was suppressed; bad tendency used to justify, 1st free speech case of 20th century |
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What were the Espionage Acts of 1917 & 1918 and why were they passed? |
- Passed to prevent sabotage and communication of military secrets during WWI - Punished speech that had intent to 1) interfere with military operations 2) promote success of enemies 3) attempt to cause insubordination, disloyalty, refusal of duty, etc. in armed forces 4) interfere with draft 2000 prosecutions in total - not one prosecution for actual spying Government believed that if people opposed the draft, then no one would join the army, then the US would be completely destroyed and there would be no Constitution (slippery slope) |
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Schenck v. United States Year: ? Case: ? Outcome: ? Significance: ? |
Year: 1919 Case: Schenck, Gen. Secretary of Socialist Party, mailed 15000 leaflets to draftees criticizing draft and comparing it to slavery, indicted under Espionage Act Outcome: 9-0 to sustain his conviction; court used bad tendency test to justify result Significance: clear and present danger test est. for the first time in Holmes' dissent |
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Frohwerk v. United States Year: ? Case: ? Outcome: ? Significance: ? |
Year: 1919 Case: Frohwerk (publisher) printed 12 newspaper articles claiming it was wrong to send US forces to France and it was an illegal draft Outcome: sentenced to prison for 10 years Sig: bad tendency lives on; Holmes: "a little breath would be enough to kindle a flame" (slippery slope thinking) |
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Debs v. United States Year: ? Case: ? Outcome: ? Significance: ? |
1919 Case: Eugene Debs, Socialist party leader, gave an antiwar speech Outcome: Court ruled that speech tended to obstruct conscription of men for armed forces; 10 year prison sentence Sig: bad tendency lives on |
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What did Holmes and Brandeis argue for in their dissents? |
Expanded freedom of speech beyond bad tendency test - ultimately developed clear and present danger test Court slowly liberalized position on political dissent, but it took decades |
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Abrams v. United States Year: ? Case: ? Outcome: ? Significance: ? |
1919 Case: Abrams and 4 others (all Russian citizens) distributed anti-war leaflets from rooftops in New York which stated that Wilson shouldn't get involved in the Bolshevik revolution Outcome: convicted 7-2 Sig: Holmes and Brandeis dissented! Brandeis: no chance outcome would occur, therefore no clear and present danger |
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Gitlow v. New York Year: ? Case: ? Outcome: ? Significance: ? |
Year: 1925 Case: Gitlow published 16,000 copies of "Left Wing Manifesto" that urged est. of socialism by strikes and class action, was charged under a NY state statute Outcome: 7-2 to sustain conviction Sig: Court said that 1st Amendment was binding upon states through the 14th Amendment; applies 1st Amendment to states through 14th Amendment Holmes and Brandeis dissent (again!) Holmes: "every idea is an incitement" |
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What was the trend of court rulings as it pertains to political heresy from the 1919-1969? |
Clear and present danger Danger must be both obvious and immediate Schenck vs. United States Holmes/Brandeis: "only an emergency justifies repression" |
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What was the trend of court rulings as it pertains to political heresy from the 1969-present? |
Incitement rule Illegal conduct must be both imminent and likely to occur Brandenburg v. Ohio |
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Whitney v. California Year: ? Case: ? Outcome: ? Significance: ? |
1927 Case: Whitney convicted for being an active member in Communist Labor Party; she voted against pro-violence platform but remained in party Outcome: 9-0 sustain conviction (lawyers should have argued there was no clear and present danger) Sig: Brandeis and Holmes explain why Court should adopt clear and present danger test -> remedy for bad speech is more speech! |
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Fiske v. Kansas Year: ? Case: ? Outcome: ? Significance: ? |
1927 Case: Fiske, member of the Wobblies, solicited memberships to a group dedicated to the violent overthrow of the government, convicted by Kansas Supreme Court Outcome: Court found no evidence that Fiske had advocated any crime or unlawful action Sig: 1st Supreme Court reversal using 14th Amend. in a free speech case; based upon decision in Gitlow |
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Who were the Wobblies? |
Industrial Workers of the World Communists that advocated some form of socialism in government, if not full on communism Felt that Wall Street and everyone else had nothing in common |
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What was the Smith Act? |
Reaction to WWII Banned speech encouraging disloyalty to military and overthrow of gov. Used to restrict speech during Cold War (functioned like Espionage Acts) |
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Dennis v. United States Year: ? Case: ? Outcome: ? Significance: ? |
Year: 1951 Case: Dennis and 10 other members of Communist Party were indicted in NYC under Smith Act for conspiring with each other to overthrow US gov. (basically they had a book club) Outcome: 6-2 conviction, upheld Smith Act and ruled that "gravity of evil" presented by Communism was so great that bad tendency doctrine was used Sig: "gravity of evil" could permit gov. to intervene before act reached "Clear and present danger" status; balancing test (value of free speech vs. national security needs) If the potential harm is sufficiently great, such as the overthrow of the gov., the speech may be suppressed even if it is highly improbable that it will bring about the harm |
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Yates v. United States Year: ? Case: ? Outcome: ? Significance: ? |
1957 Case: Yates and 13 others of Communist party of CA were convicted of violating Smith Act by teaching overthrow of gov. Outcome: Court voted 6-1 to remand (clarify previous decision and send to lower court to readjudicate) Sig: A bad idea (abstract doctrine) is allowed under 1st Amend, but advocating criminal activities (unlawful action) is not allowed under 1st Amend --> must show criminal intent Signified move away from bad tendency to clear and present Also, really stopped speech prosecutions by requiring stricter evidence standards Justices Black and Douglas take up mantle of Holmes and Brandeis |
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Brandenburg v. Ohio Year: ? Case: ? Outcome: ? Significance: ? |
1969 Case: Leader of KKK, Brandenburg, spoke at Klan rally in Ohio and threatened revengeance against the Pres., SC, and Congress Outcome: State court convicted but SC overruled 9-0 Sig: Incitement standard introduced! Gov. must prove that danger presented is real, not imaginary. Even threatening speech is protected unless it can be shown that it's likely to produce action |
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What is the Threats Against the President Act? |
1917 US Congress made it illegal to threaten life of President and since then it's expanded to VP, Pres. elect, VP elect, and any one else in succession line to Presidency |
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Is revealing intelligence agent's names protected by the 1st Amend? What about antiwar comments of an elected official? |
Revealing intelligence names NOT protected Antiwar comments YES protected |
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Can public school students refuse to salute the flag? |
Yes - protected by 1st Amd under US v. Barnette No form of allegiance can be coerced or compelled |
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Do all groups need always be included in public parades? |
Nope! - Cox v. New Hampshire |
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What is the Hit Man case? |
Can't detail how to kill a public official Paladin Press published Hit Man which offered instructions for committing murder for hire |
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What is the PATRIOT Act? |
Gov. can pay attention to which Internet sites you visit and books you read from lib Orig. passed Oct 2001 Dramatically expands power of federal gov. to gather intelligence and investigate anyone suspected of terrorism Q is balancing security and liberty Locke: gov. is there to protect us |
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What is compelled speech? |
When you don't necessarily want to say something, but you're forced to say it stems from US v. Barnette (Jehovah Witness and flag salute case) |
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Common law proposes that speech ________. |
...can be called defamatory if it tends to lower a person's reputations before others, cause that person to be shunned, or expose that person to hatred, contempt, or ridicule. People have the right to protect their personal reputations against slanderous remarks that destroy their standing in the community. |
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What are the two types of defamation? |
Slander = speech Libel = written |
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What are the two types of libel statements? |
Libel per se Libel per quod (much rarer) |
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What is libel per se? |
Statements that are libelous within themselves: a) accusing another of criminality; e.g. you cheated on a test b) asserting another has a contagious/offensive disease c) attacking reputation of a person in their business, trade, profession d) charging one with sexual immorality |
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What is libel per quod? |
Defamatory/libelous because of situation/context in which it's said e.g. someone w/ cancer raises $ for treatment but you say that person doesn't have cancer; normally not libelous to say someone doesn't have cancer, but in this case it raises suspicion |
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What are the two types of defamatory legal action? |
Civil Criminal |
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What is a tort law? |
Civil wrong/complaint |
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What occurs when civil action is taken against a defamatory statement? |
One citizen vs. another citizen (you harmed me, now make it right) One citizen sues another under tort law no crime is charged Does not pertain to a contract, but involves one's person, property, or reputation e.g. medical malpractice, dangerous workplace conditions, and traffic accidents |
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What occurs when criminal action is taken against a defamatory statement? |
Increasingly rare - slightly fewer than half the states have criminal libel laws and that number is decreasing Most famous criminal libel prosecution case was Zenger in 1735 (criticized NY gov.) Best known criminal libel law is Sedition Acts of 1798 Conviction results in fine, imprisonment, or both |
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What are the four matters of particular importance in a defamation case? |
1) basic conditions that must be met 2) defenses 3) damages 4) grant of summary judgment |
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What six things must a plaintiff prove to win a libel suit? |
1. Defamation occurred - message is perceived harmful or insulting among "right thinking" persons 2. Identification - plaintiff was specifically identified 3. Publication - message was published or communicated to a third party 4. Fault - actual malice (public persons) or negligence (private persons) 5. Falsity - the statement must be proved false 6. Injury - statements had a negative effective on a person’sreputation, business, etc. |
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What are the three types of damages that can be awarded in a defamation suit? |
1. Actual damages - those that can be calculated in a fairly precise way, such as salary lost, etc. 2. General damages - more intuitive b/c lack of a measurable base for calculation, jury's subjective opinion of seriousness of harm inflicted 3. Punitive damages - "punishing," used when speech is particularly offensive, sends signal to others not to do it again |
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What is summary judgment and it what cases does it occur? |
Ruling of judge before trial beings that there is no reason to proceed further because of "clear and convincing" evidence that libel occured |
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What are the four defenses in defamation suits? |
1. Truth - always best defense; most stakes make this a complete defense 2. Tarnished reputation - reputation already so tarnished that speech in question couldn't have harmed it further; "Britney Spears defense" 3. Privileged communication - absolute privilege means government officials can saying things in their capacity as gov. officials on senate floor while making laws Qualified privilege - e.g. if a reporter from Fox News reported what a senator said 4. Fair comment - if you say something that can't be proved true or false, but is just mean, it's fair comment |
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What is the ruling on group libel? |
Bans libelous speech against an entire social group --> held by some states after witnessing racism under Hitler SC only ruled on this once in Beauharnais vs. Illinois (convicted for distributing a racist leaflet) when they upheld group libel law The law proscribed publications which portray the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed, or religion [where the publication] exposes them to contempt, derision, or which is productive of breach of the peace or riots" |
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What was the case in NYT v. Sullivan? |
1964 Group of activists placed an ad in NYT in March 1960 advocating for people to join Civil Rights Movement, but ad contained some minute misstatements of fact re: protest on an Alabama campus Sullivan, who oversaw police dept in Montgomery, decided ad was about him/criticized him and wrote a letter to NYT demanding a retraction NYT responded saying they didn't know how it affected him, so he sued NYT for libel |
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What was the outcome of NYT v. Sullivan? |
Outcome: Alabama court awarded Sullivan $500K in damages, but SC unanimously overturned - Sullivan wasn't identified - don't buy his reasoning - "not only do you have a right to criticize, it is your duty as citizens." - some Southerners would have seen Sullivan's actions and it would have bettered his reputation (1960's world) |
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Define actual malice |
Knowledge that speech was false or with a reckless disregard for the truth |
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When it comes to libel, why are public officials and public figures held to a higher standard? |
They have a means to speak back - can hold a press conference, do a television interview, etc. Also, duty of citizen critic to criticize gov/public officials |
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What constitutes an all-purpose figure? What standard of libel for public figures? |
Public figures occupy positions of such persuasive power and influence that they have means to speak back. eg Taylor Swift, Peyton Manning
Held to actual malice standard |
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What was the significance of NYT v. Sullivan? |
1. Actual malice is the new standard for libel, particularly public officials!!; truth is not the only defense 2. Sullivan wanted to shut down discourse re: civil rights, black rights, etc. not protect his own reputation. If he had won this suit, would have caused a chilling effect and civil rights movement would have been stalled |
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What constitutes a limited public figure? |
People who find themselves for a moment willfully or unwillfully in the public eye |
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Are the private matters of public officials/figures included under actual malice? |
Yes; case of Alphonse Roy who was accused of bootlegging court: no one makes you run for office - anything which might touch on an official's fitness for office is relevant |
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What are the 4 ways the actual malice rule is applied? |
1. Reckless disregard for the truth - designed to discourage falsehoods 2. State of mind of message source - can't be guilty if you thought it was true 3. Time element - more time you have, more responsibility you had to fact check 4. Qualify your message with "allegedly" or "reportedly" (until convicted) |
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Gertz vs. Welch Year: ? Case: ? Outcome: ? |
1974 Case: Gertz (lawyer) was hired by a family whose child was shot and killed by a policeman in Chicago to bring a civil action suit for damages against police officer Gertz was attacked by American Opinion, a right wing mag published by Welch, as Communist and Leninist for representing a family with a thug for a son Outcome: SC found 5-4 in favor of Gertz Court: No! Bar is lower for private persons |
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What was the significance of Gertz vs. Welch? |
!!Negligence is new standard for private persons in defamation suits Const. question: You damaged this person's reputation but must a private person define actual malice? Court: no! bar is lower for private persons Private persons need more protection than public people Limit on punitive damages though |
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What are the 3 degrees of fault as it pertains to negligence? |
1. Negligence - something a prudent/reasonable person wouldn't do 2. Gross negligence - intentional failure to do what is reasonable 3. Actual malice - damages are limited to actual and general, except in instances when the plaintiff can prove actual malice |
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Can opinion be defamatory when it comes to private people? |
Yes; if you're alleging a fact, you can't do that, it must be based on something that's factual
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Are fabricated quotes protected by the 1st Amend? |
No, if you put something in quotes, it better be the exact quote |
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What is SLAPPing and what can it result in? |
"Strategic Lawsuits Against Public Participation" Regards a significant public issue and takes speech designed to influence government action e.g. oil companies want to shut Greenpeace down. GP wants gov. to change environment laws, so Exxon files lawsuit against GP saying "You're defaming us" Results in a chilling effect |
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What were the Kentucky and Virginia Resolutions? |
Covertly authored by Madison and Jefferson; Kentucky and VA were hostile to Pres. Adams and the Federalists The Kentucky and Virginia Resolutions were statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional/undesirable |
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What did the English Bill of Rights of 1689 accomplish? |
Expanded freedom of speech to include members of Parliament in their official capacity during a legislative session |
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True or false: In libel and slander cases, the medium and channel of communication is the most important factoring in determining severity. |
True Email is much less severe than if you go on the news and say it |
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True or false: Saluting the flag at official functions is required |
False |
