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253 Cards in this Set

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Define "dicta"
Language that appears in a court decision not specifically relevant to the resolution.
Define "de novo"
Review the question anew
Is the act of forcing someone to publish something a prior restraint?
Yes. Forcing someone to publish something IS a prior restraint.
Name the 2 parts to prior restraint:
1. Stopping the publication
2. Prior review
Who bears the burden of justifying a prior restraint?
The party seeking the prior restraint bears a heavy burden of justifying it.
Name the occasions where a prior restraint might be upheld.
* Obstruction to recruitment/publication of sailing dates
* Obscenity (decency standards can be enforced)
* Incitements to acts of violence and the overthrow of orderly govt. by force
In order for a prior restraint to be effective or constitutional, it has to do what?
Avert damage and/or harm
When did issues of military prior restraint begin to become controversial?
the Grenada conflict. (Not controversial in WWII, or Vietnam really)
What did the Pentagon Press Pool consist of?
A small segment of the press that had real-time access; it was deemed to be a short-term solution.
What is the purported problem with the following military regulation: "[The media] will be required to abide by a clear set of military security ground rules that protect U.S. forces and their operations"?
The conditions are vague; this regulation leaves room for the military to manipulate it.
What was the conclusion of the 2004 case brought by Larry Flynt against Donald Rumsfeld?
Military access is not protected or assumed by the First Amendment.
Is there a constitutional right of the press to cross a police line?
No, there is NOT a constitutional right of the press to cross a police line.
Is there a constitutional right of the press to violate a law or restriction?
No, there is NOT a constitutional right of the press to violate a law or restriction.
Are prior restraint on speech and denial of access the same thing?
No, courts tend to treat prior restraint on speech different from a denial of access.
Define the principle of strict liability:
Strict liability: you are engaging in conduct that is inherently dangerous, so no matter what precautions you take, you are liable.
Name the six elements of a prima facie libel case:
1. Has to be a false statement
2. Has to be defamatory
3. Has to be published (as in, has to be communicated to a third party)
4. Has to be some degree of fault (lowest = negligence)
5. Has to be damaging in some sense
6. Has to be about somebody ("of and concerning" somebody)
Define "tort"
An injury or civil wrong committed, either with or without force, to the person, property, reputation or privacy of another.
Define "prima facie"
At first view. (Prima facie evidence is proof that one or more facts that create a presumption of the existence of other facts.)
What must be at stake in a libel suit?
Reputation must be at stake in a libel suit.
In a libel suit, what kind of audience must a plaintiff be defamed to?
one consisting of "right-thinking and responsible people in the community"
Can all of these be libelous:

headline, caption, byline?
Yes; any of these can be libelous.
Can insulting or name-calling be libelous?
No, insulting or name-calling can not be libelous
Is pure opinion actionable as a libel suit?
No, pure opinion is not actionable as a libel suit.
In a libel defense, you say: "I'm not guilty; I was just repeating what Mr. X said." The judge will rule:
You are still liable, since you published it.
What is libel "per se"?
Libel "per se" is actionable without haveing to prove special damages. (For instance, libel that deals with unchastity, or with a loathsome disease)
What is libel "per quod"?
Libel "per quod" is actionable because of the circumstances the alleged defamation took place in.
What did New York Times Co. v. Sullivan say about the "of and concerning" requirement?
The statement has to be "about" the plaintiff, but it doesn't have to include the plaintiff's name.
What is a general limit over which a group libel suit is not likely?
25 people, roughly.
What are some defenses for libel?
1. Truth
2. Statute of Limitations (every state has laws for how quickly you have to file suit; in most states, it is 2 years)
What are some priviliges concerning libel?
1. Fair report
2. Official report
3. Fair comment
Define "fair report"
If something is published and is a fair and accurate summary
Define "official report"
Something is published which was a government, public or court report
Define "fair comment"
Pure opinion (a fair and accurate report)
Name the types of monetary damages:
1. Nominal
2. Special
3. Reputational
4. Punitive
Define "nominal damages"
Minor, symbolic (i.e., a $1 award)
Define "special damages"
Account for significant out-of-pocket losses (i.e., losing sales at your business)
Define "punitive damages"
Intended to punish, usually for large amounts of money.
What are some benefits of publishing a retraction in the case of a libel-liable publication?
Retractions can:
1. Reduce ("mitigate") damages
2. It is a show of good fath on the publisher's behalf
Name the four torts of privacy law.
1. Intrusion on plaintiff's physical solitude
2. Publication of embarrassing private facts
3. Putting the plaintiff in a false light
4. Misppropriation
Define misappropriation
When someone violates your exclusive right to control your name or image
Can a person have a reasonable expectation of privacy in, for example, a city park?
No. There is no reasonable expectation of privacy in a city park. A shopping mall, for example, may be quasi-public.
Is trespass a form of intrusion?
Yes, trespass IS a form of intrusion.
Because publication of embarrassing private facts must consist of truthful information, what can never be a defense?
Truth
What qualifications must a claim of publication of private facts have in order to succeed?
1. Has to be "highly offensive to a reasonable person"
2. Has to NOT be a matter of public concern (this would make it newsworthy)
3. Has to be truthful
Is information obtained from a public record actionable as a privacy tort claim?
No, information obtained from a public record is NOT actionable as a privacy tort claim.
Name the defenses available to the tort of private facts:
1. Consent
2. Newsworthiness
3. Obtained legally by govt. source
What happens if a person withdraws their consent for you to publish private facts?
You lose that defense, as long as it's of public concern and not highly offensive to a reasonable person.
Name an absolute defense to libel:
Truth
Does a minor have the power to consent?
No, a minor does NOT have the power to consent.
Does the fact that a journalist published something make it newsworthy?
No, the fact that a journalist published something does NOT make it newsworthy.
Which of the four torts is not recognized in MN, and in some other states?
False light
What distinguishes a false light claim from a libel claim?
A false light claim is not defamatory.
Which is the only of the four privacy torts to which truth can be a defense?
False light
Name a unique feature of commercialization/misappropriation:
It survives someone's death; in other words, it descends to heirs - they have the right to a person's estate.
What tort existed prior to the Hustler v. Falwell case?
Infliction of emotional distress
Which form of communication has the least protection?
Broadcasting
Is obscenity protected in the broadcast medium?
No, obscenity is NOT protected in the broadcast medium.
At what hours can indecency legally be aired?
10:00 p.m. - 6:00 a.m.
What are shield laws?
Shield laws are laws passed by some states in order to protect the reporters' right to keep their sources private
What is the three-part test for a "qualified privilege" (concerning shield laws)?
1. Relevance
2. Materiality
3. Unobtainable from another source less destructive to the First Amendment
What are the types of privileges recognized under some states' shield laws?
-Qualified privilege, and
-Absolute privilege
What is "promissory estoppel?"
Promissory estoppel allows people to sue in a contract-like situation without an actual written contract.
Which amendment provides the right of Americans to not be "unreasonably searched and seized?"
the Fourth Amendment
Is the right of Americans to not be "unreasonably searched and seized" a privacy right?
No. The right of Americans to not be "unreasonably search and seized" is NOT a right of privacy.
Is there an expectation of privacy when it comes to content?
No. There is NO expectation of privacy in content.
Is a search with a warrant a reasonable search?
Yes, but it is not the only definition of a reasonable search. (If smoke were coming out of a house, a person would have probable cause to search; same if a robber runs into a house)
Name the four situations which constitute reasonable search and seizure:
1. Probable cause and a warrant
2. Consent
3. Probable cause and a legit excuse for not having the warrant paper on you
4. Govt.'s need outweighs the privacy interest
Can high school athletes be reasonably drug tested (or does it violate the Fourth Amendment)?
Yes, high school athletes CAN be reasonably drug tested.
Can the method by which the search is conducted be unreasonable?
Yes, the method by which the search is conducted CAN be unreasonable.
Define criminal contempt:
Punishment for an affront to the court; sentence for a fixed term
When does civil contempt come into play:
When a subpoenaed person fails to show up in court, or fails to comply with a court order.
What type of card tells reporters what to say to a judge if the judge tries to close off a case?
a Gannett card
What steps does the Gannett card propose?
1. Ask to speak
2. Object on behalf of self and public
3. Attorney is on the way, he/she will be able to explain why closure is not allowed
4. In the meantime, state that closure violates the First Amendment and possibly other state law
5. Ask for recess
6. Leave if thrown out; you can send a note back in
At what court level do states usually allow cameras in the courtroom?
The appellate level.
Are cameras allowed in SCOTUS?
No, cameras are NOT allowed in SCOTUS.
Was copyright present in the Constitution?
Yes, in Article I Section 8 of the Constitution
What is the purpose of copyright?
Exclusive rights give a creator motive and incentive to create.
Is fan fiction protected against copyright?
No, fan fiction violates copyright
What are the 4 remedies for copyright infringement?
1. Can stop you from doing it (prior restraint)
2. Can order you to destroy all its copies
3. Can recover money damages
4. Can have criminal sanctions
True or false: Ideas are not copyrightable.
TRUE. Ideas are NOT copyrightable.
Can a phone directory be copyrighted?
No, a phone directory can NOT be copyrighted; the court has said that it is not a creative process. This is true of databases as well.
What is the 4-part test for deciding if something is 'fair use?'
1. Purpose and character of the use
2. Nature of the copyrighted work
3. How much you take (substantiality)
4. Market effect
As of 1976, which of the following is true:

1. Copyright applies to the birth of the work
2. Copyright applies when a copyright is approved by the copyright office
1. Copyright applies to the birth of the work
How long after the death of its author can a copyright last?
70 years
In 1942, when SCOTUS first addressed commercial speech, what did they rule concerning its First Amendment protection.
In 1942, SCOTUS ruled that commercial speech has no First Amendment proection (this has, of course, since been modified).
What is the classical definition of commercial speech?
Speech that proposes a commercial transaction
How long, in advertising, can the term NEW be attached to a product?
6 months
What governs advertising?
For the most part,
1. The Federal Trade Commission Act
2. National Advertising Division (NAD) of the Better Business Bureau
What two things must advertising do?
1. Tell the truth
2. Not mislead consumers
Does an advertiser have to substantiate its claims?
Yes, an advertiser's claims must be substantiated
What is the broad definition of "advertising?"
Advertising: just about any way that you communicate to consumers
Define "puffing" in advertising:
Exaggeration or hyperbole; it does NOT require substantiation
What are the 4 P's of advertising disclaimers?
1. Prominence (big enough to notice/read)
2. Presentation (wording and format are easy to understand?)
3. Placement (will consumers look here?)
4. Proximity (near claim it qualifies)
What is CARU?
It's a division of the NAD of the Better Business Bureau that reviews ads aimed at children
When was FOIA signed into law?
FOIA was signed into law in 1966
What branch does the FOIA apply to?
The executive branch (but not the president directly)
What specifically does the FOIA cover?
The FOIA covers records (any documentary information).
What action is necessary in order for you to trigger your FOIA rights?
You must submit a formal written request for the information in order to trigger your FOIA rights.
What happened in 2001 that was detrimental to FOIA?
Ashcroft released a memo encouraging resistance to FOIA as long as there was a "sound legal basis" for withholding.
Name the first five FOIA exemptions
1. National security
2. Internal agency rules
3. Statutory exemption
4. Trade secrets
5. Internal agency memoranda
Name the last four FOIA exemptions
6. Personal privacy
7. Law enforcement records
8. Bank reports
9. Oil and gas well data
Name all nine FOIA exemptions
1. National security
2. Internal agency rules
3. Statutory exemption
4. Trade secrets
5. Internal agency memoranda
6. Personal privacy
7. Law enforcement records
8. Bank reports
9. Oil and gas well data
What do agencies have the right to charge when it comes to answering a FOIA request?
Agencies have the right to charge "reasonable fees."
What is the necessary timeframe for an FOIA response?
10 calendar days
At what point can you appeal for not receiving a FOIA response?
20 days
What is a final option if your FOIA response does not come?
In this circumstance, you may sue.
Much involving Internet law reflects the law of what medium?
Broadcast
What was the end result of the Yahoo! France - Nazi memorabilia case?
the 9th Circuit avoided ruling a declaratory judgment in favor of Yahoo!
Does the U.S. generally enforce rulings from valid international courts, so long as it is consistent with our Constitution?
Yes, the U.S. generally DOES enforce rulings from valid international courts, so long as the rulings are consistent with our constitution.
What has to be done for an international court to enforce its judgment in the U.S.?
The Int'l court would have to come to the U.S.
Define "comity:"
The int'l principle that a court will recognize another nation's judicial actions
True or false:
Prior restraint = restriction of access
FALSE. A prior restraint is NOT equal to a restriction of access.
What was the conflict in Miami Herald v. Tornillo?
Tornillo wanted a mandatory injunction granting him a "right of reply" to the attacks made against him by the Miami Herald.
What was decided in Miami Herald v. Tornillo?
- The Florida statute (permitting the right of reply) was unconstitutional on grounds of a free press
- Ruled against prior restraint (since forcing someone to publish is a form of prior restraint)
What was the conflict in Near v. Minnesota (1931)?
Jay Near's "Saturday Press" was deemed a "public nuisance" and was restrained by a MN statute.
What was decided in Near v. Minnesota (1931)?
- Prior restraint is inconstistent with the liberty of the press (though this is not absolute)
- Defamation ought to be challenged under libel laws, not restrained
- Named the situations (see some other question I made a flash card for) where a prior restraint would fly.
What was SCOTUS' holding in Hustler Magazine v. Falwell?
A public figure cannot recover damages for intentional infliction of emotional distress based on satire.
According to Hustler Magazine v. Falwell, what form of speech is protected by the First Amendment?
Obvious satire or parody of a public figure (even if it causes emotional distress).
As stated in Hustler Magazine v. Falwell, how could a public figure recover damages for infliction of emotional distress?
1. Show "false statement of fact" (that a reasonable reader would believe to be true)

2. Show satirist acted with "actual malice"
What did Rehnquist say of political cartoons in the Hustler Magazine v. Falwell decision?
The Founding Fathers specifically intended the First Amendment to protect such parodies; emotional impact can make a parody a healthy political tool. (my paraphrase)
Define "incitement" as it regards the Orgasm of Death case.
Encouragement of conduct that might harm the public such as the violation of law or the use of force.
Why was an incitement of "imminent unlawful action" not present in the Orgasm of Death case?
Because "imminent" is an issue of time, NOT certainty; it must be likely to cause its action immediately.
What did the court say of fiction in the Olivia N. v. NBC case?
A child could as easily imitate activities portrayed in a news program or documentary; thus, fiction has the same protection.
What was the conflict in Olivia N. v. NBC?
NBC aired "Born Innocent," which allegedly incited minors to 'artificially rape' a 9-year-old girl with a bottle; Olivia N. claimed negligence on NBC's part.
According to Rice v. Paladin Enterprises, what kind of intent is not protected by the First Amendment?
"specific" intent to assist crime
What might the First Amendment protect, though it was not present in Rice v. Paladin Enterprises?
abstract advocacy (in Rice v. Paladin Enterprises, the advocacy was NOT abstract)
What was the ruling in Rice v. Paladin Enterprises?
The First Amendment was NOT a complete defense in this case.
What did Paladin Enterprises do, uniquely, prior to the lower court ruling in Rice v. Paladin Enterprises?
Paladin stipulated its "assistance" and intent in publishing the book for would-be hit men.
What was the conflict in Eimann v. Soldier of Fortune Magazine?
The son and mother of a murder victim sued the magazine for publishing a personal mercenary ad through which the victim's husband hired the advertiser to kill her.
What was the finding of the Court of Appeals in Eimann v. Soldier of Fortune Magazine?
The burden on the publisher to avoid such liability is too great, and would cause a rejection of advertising as a safety measure.
What did the court in Eimann v. Soldier of Fortune Magazine say about the notion of risk in advertising?
Driving on high-speed roadways also presents a risk of serious harm, so we shouldn't make publishers reject all ambiguous advertisements that might pose a harmful threat.
What was the conflict in Braun v. Soldier of Fortune Magazine?
SOF Mag. ran an ad headed "Gun for Hire" and saying "All jobs considered," which was answered; the advertiser was hired and succeeded in murdering a man.
What did the U.S. Court of Appeals rule in Braun v. Soldier of Fortune Magazine?
The ad, which was headed "Gun for hire" and noted that "All jobs considered," suggested on its face a substantial danger of harm to the public. Damages were awarded to the victim's survivors.
What was the conflict in Miller v. California?
Miller mass-mailed brochures for illustrated "adult" books, which caused a restaurant manager and his mother to complain on the basis of a CA penal code which made it a misdemeanor to knowingly distribute obscene material.
What was the ruling in Miller v. California?
The CA penal code violates the First Amendment in the way it defines obscenity.
What did Miller v. California conclude about obscenity?
Obscene material is NOT protected by the First Amendment.
Name the first point in Miller v. California's three-part test for a work to be subject to obscenity regulation:
1. The average person, applying contemporary community standards, must find the work, taken as a whole, appeals to the prurient interest.
Name the second point in Miller v. California's three-part test for a work to be subject to obscenity regulation:
2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law
Name the first point in Miller v. California's three-part test for a work to be subject to obscenity regulation:
3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Name the points of Miller v. California's three-part test for a work to be subject to obscenity regulation:
1. The average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to the prurient interest.
2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law;
3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Define prurient interest as Chief Justice Burger does in Miller v. California:
Shameful or morbid interest in nudity, sex, or excretion.
True or false: Pornography = obscenity.
FALSE. Pornography does not equal obscenity. (Miller v. California)
True or false: Something that is erotic or indecent is obscene.
FALSE. Something that is erotic or indecent is NOT necessarily obscene. (Miller v. California)-
What did the court in New York v. Ferber say concerning Miller v. California?
The court said that the decision in Miller v. California was not adequate in solving the child pornography problem.
What law was at stake in New York v. Ferber?
A New York child pornography law that prohibited persons from knowingly promoting sexual performances by children under 16 by distributing material depicting the performances
Did the law at stake in New York v. Ferber violate the First and Fourteenth Amendments?
NO, the law in New York v. Ferber did NOT violate the First and Fourteenth Amendments.
Which way does the balance of interests shift in New York v. Ferber?
The Court decided that the state's interest in preventing sexual exploitation of minors is a compelling "government objective of surpassing importance."
What is the famous quote from Tinker v. Des Moines?
Students do not shed their constitutional rights at the schoolhouse gate.
What was the holding in Tinker v. Des Moines?
Since the Tinker kids did not cause disruption in wearing the armbands, their activity represented constitutionally protected symbolic speech.
According to Tinker v. Des Moines, when would a public school be able to punish a student for speech?
1. Material disruption

2. Speech invades the rights of others
Where specifically does the ruling in Hazelwood v. Kuhlmeier apply?
Public, K-12 schools.
True or false: Some states have set a higher standard protecting student speech than that given in Hazelwood v. Kuhlmeier.
TRUE. Some states HAVE set a higher standard protecting student speech than that given in Hazelwood v. Kuhlmeier.
What is the criteria set forth in Hazelwood v. Kuhlmeier that makes student speech liable to regulation?
1. School-sponsored
2. Part of curriculum
3. NOT a public forum
4. Against the general educational mission (or pedagogical concern)
True or false: The students in Hazelwood v. Kuhlmeier wanted a summary judgment without damages.
FALSE. The students in Hazelwood v. Kuhlmeier wanted a declaratory judgment, a mandatory injunction and monetary damages.
What constitutes a lottery?
1. Prize
2. Chance
3. Consideration
Name some exceptions to broadcast regulations on lotteries?
1. Native American casinos
2. State-operated lottery
3. Fishing contests
4. Can advertise the casino (but not the gambling)
In political broadcasting rules, what constitutes a "use?"
1. Any positive appearance
2. of a Legally Qualified Candidate, whose voice or likeness is either
3. identified or is readily identifiable
True or false: a Legally Qualified Candidate must have announced his intention to run for office.
TRUE. A Legally Qualified Candidate MUST have announced his intention to run for office.
True or false: Legally Qualified Candidates are entitled to purchase time at the lowest rate charged to any advertiser for the same class and same amount of time.
TRUE. A LQC is entitled to purchase time at the Lowest Unit Charge.
True or false: a Use applies to a bona fide news event, news interview, newscast or news documentary.
FALSE. A Use is NOT true in the event of a bona fide news event, news interview, newscast or news documentary (all bona fide).
What was the critical holding in Hosty v. Carter?
Hosty v. Carter held that the dean, Carter, WAS subject to qualified immunity
Name the factors which apply in considering Hazelwood at the collegiate level (Hosty v. Carter):
1. School support (i.e., student activity fees)
2. Public forum (can't be discriminatory based on content or viewpoint)
What was the conflict in FCC v. League of Women Voters of CA?
The Public Broadcasting Act of 1967 allocated federal funds to public broadcast stations, but did not allow them to "engage in editorializing."
What was the ruling in FCC v. League of Women Voters of CA?
The ban on editorializing violated the First Amendment.
What was the Fairness Doctrine?
An FCC policy requiring broadcast licensees to present controversial issues of public importance, and to present the issues in an honest, equal and balanced manner.
Who did the court in Red Lion Broadcasting Co. v. FCC say that the broadcasting First Amendment rights belongs to?
The First Amendment right in broadcasting belongs to the viewing and listening public, not the broadcaster.
In a unanimous decision, the Court made what decision concerning the fairness doctrine in Red Lion Broadcasting Co. v. FCC?
The fairness doctrine was deemed consistent with the First Amendment. (It enhances rather than chills freedom of speech.)
The case FCC v. Pacifica Foundation deemed what in terms of the level of First Amendment protection given to broadcasting?
Broadcasting has the least First Amendment protection of all forms of communication.
True or false: Carlin's routine in FCC v. Pacifica Foundation was ruled indecent, but not obscene.
TRUE, Carlin's routine in FCC v. Pacifica Foundation was ruled indecent, but not obscene.
True or false: Licenses for broadcasting are a limited resource.
TRUE, licenses for broadcasting ARE a limited resource.
True or false: Obscenity is protected by the First Amendment in the broadcast medium.
FALSE, obscenity is NOT protected by the First Amendment in the broadcast medium.
True or false: the rules applying to the broadcast medium apply to cable.
FALSE, if you are choosing cable, you've made a choice to risk it.
Name the 4 reasons justifying the FCC response in FCC v. Pacifica Foundation:
1. Access by unsupervised children
2. Spectrum scarcity
3. Privacy issue w/ TVs, radios in the home
4. Shock of tuning in after the warning has already been given, thus subjecting self to the indecent
How did the Court in FCC v. Pacifica Foundation characterize broadcast airwaves?
It characterized the airwaves as intruders into a home.
Name an argument against the ruling in FCC v. Pacifica Foundation
- there is material not suitable for children but that has value
The ban on indecency in broadcasting was originally how many hours of the day?
24
Action for Children's Television v. FCC decided that what hours were appropriate as a broadcasting "safe harbor" for indecency?
Midnight to 6 a.m.; however, for stations that go off the air at midnight (i.e., public broadcasting), the safe harbor could be 10 p.m. - 6 a.m.
What is an argument against the V-Chip?
Parents are just passing on decisions to those people who are setting the ratings
What was the conflict in Becker v. FCC?
Becker, a political candidate, wanted to air an advertisement which included photos of aborted fetuses after an afternoon football game. The station asked the FCC for the ability to decide indecency themselves.
What was the ruling in Becker v. FCC?
The Court of Appeals OVERTURNED the FCC ruling that allowed broadcast licnsees to use their own discretion in determining whether or not a political advertisement is indecent and should be aired during "safe harbor" hours.
What was determined in the case of Branzburg v. Hayes about the presence of a reporter's privilege?
A reporter has NO special privilege.
What happened that led to the Cohen v. Cowles Media case?
Cohen came to the Star Trib and Pioneer Press in the 1982 governor's race, wanting confidentiality; he had evidence of petty theft, unlawful assemply convictions of the Lt. Gov. candidate. They published articles instead about him; he was fired; he sued under promissory estoppel.
What did SCOTUS rule concerning the First Amendment in Cohen v. Cowles Media?
SCOTUS said that the First Amendment does not defend Cowles Media.
The 3-part test noted in Stewart's dissent in Branzburg v. Hayes:
1) relevance
2) unobtainable from other source less destructive to First Amendment
3) govt. demonstrates a compelling and overriding interest in the information
What happened that led to the case of Zurcher v. Stanford Daily?
The office of The Stanford Daily was searched by police officers (with a warrant obtained) for alleged photos of a violent clash between police and protesters.
What was the ruling in Zurcher v. Stanford Daily?
Such searches, accompanied by warrants, are legitimate when it has been shown to the law enforcement that evidence of crime is located on the premises. Warrants are not forbidden where the press is involved.
What was the defense of The Stanford Daily in Zurcher v. Stanford Daily?
-unreasonable search and seizure under the 4th Amendment
-illegal 1st Amendment conduct (interest of the newsroom)
Why did the Stanford Daily's argument that they (as a third party) were not suspected of the crime and thus couldn't be searched fail?
Because it could turn up that a third party IS a suspect. Thus, this is not a defense.
True or false: As per Zurcher v. Stanford Daily, as long as the government adheres to the Fourth Amendment, it is completely constitutional in its action.
TRUE. As long as the govt. adheres to the Fourth Amendment, it is completely constitutional.
Even if the reason for the search is reasonable, what about the search can be unreasonable?
The method by which the search is conducted CAN be unreasonable.
What happened that led to the case of U.S. v. Matthews?
A credible journalist had his hard drive searched and was charged with distribution of child pornography.
What was determined concerning a reporter's privilege in U.S. v. Matthews?
Matthews' status as a reporter offered him no protection against being charged.
What was true of Matthews' argument in U.S. v. Matthews, that is also true of the argument of someone charged with speeding?
If your defense is irrelevant, it doesn't matter to the case
What was the lesson of Sheppard v. Maxwell?
It's the judge's responsibility to maintain control
Define habeas corpus:
A writ ordering a prisoner be brough to court to reconsider the lawfulness of his imprisonment
What was the ruling in Sheppard v. Maxwell?
The trial judge failed to protect Sheppard from the effects of the disruptive courtroom influences and publicity, depriving Sheppard of a fair trial and due process.
What amendment was at stake in Sheppard v. Maxwell?
The Sixth Amendment
What happened in Nebraska Press Association v. Stuart?
A NE trial judge for a murder trial entered a restraining order (gag order) against the press, in order to guarantee a fair trial.
What was the holding in Nebraska Press Association v. Stuart?
The judge's restraining order against the press DID violate the First and Fourteenth Amendments. "A whole community cannot be restrained from discussing a subject intimately affecting life within it."
What were the first three things the judge in Nebraska Press Association v. Stuart said couldn't be printed (until the jury was impanelled):
1. The existence or contents of a confession
2. The fact or nature of statements defendant had made to other persons
3. The contents of a note defendant had written the night of the crime
What were the last two things the judge in Nebraska Press Association v. Stuart said couldn't be printed (until the jury was impanelled):
4. Certain aspects of the medical testimony at the preliminary hearing
5. Identity of the victims of the alleged sexual assault and the nature of the assault
What were the five things the judge in Nebraska Press Association v. Stuart said couldn't be printed (until the jury was impanelled):
1. The existence or contents of a confession
2. The fact or nature of statements defendant had made to other persons
3. The contents of a note defendant had written the night of the crime
4. Certain aspects of the medical testimony at the preliminary hearing
5. Identity of the victims of the alleged sexual assault and the nature of the assault
What did SCOTUS rule in Nebraska Press Association?
The judge's gag order was an unconstitutional prior restraint
What was the three part test set forth in Nebraska Press Association v. Stuart that allows a judge to gag the press?
1. Clear an dpressent danger to defendant's pre-trial rights
2. Consider alternative measures (change of venue, etc.)
3. If no alternative measure, have to determine that the gag order will address the fair trial issue effectively
When the court said in Nebraska Press Association v. Stuart that the govt. had not met its burden to restrain the press, what similar case did it recall?
New York Times Co. v. United States (Pentagon Papers case)
Name a case that tolerated the gag order of the press based on the three-part test of Nebraska Press Association v. Stuart
Seattle Times v. Rinehart
What happened in Jeffries v. Mississippi?
In the sentencing phase of a case, a juvenile's record was discussed and Jeffries (reporter) agreed to keep it restrained, but then defied that. She was held in criminal contempt.
What was the Mississippi Supreme Court's ruling in Jeffries v. Mississippi?
They reversed Jeffries' criminal contempt, saying the judge should have stopped the prosecutor from reading the juvenile's record during the case
What case does Jeffries v. Mississippi parallel in part?
Florida Star v. BJF (rape victim's name retrieved from police press room, published)
Jeffries v. Mississippi reaffirms the strong presumption against what?
Against prior restraint (this goes as far back for this course as the Pentagon Papers)
What was the ruling in the Gannett v. DePasquale case?
It is acceptable to restrict press access if it is necessary to protect defendant's rights.
What was the ruling in the Richmond papers case?
The public and the press have a right to attend criminal trials (though they can be closed, or narrowed). This assures public that the justice system is working properly
What was the ruling in the Press Enterprise One case?
The press has a First Amendment right to attend a jury selection (though this might be subject to closing)
What was the ruling in the Press Enterprise Two case?
CA court applied a qualified right to attend pretrial hearings even if the defendant opposes it
What are the first three parts of the 5-part Press Enterprise test for closure?
1. Access by press/public poses substantial threat to defendant's rights/public interest
2. Consider alternativves
3. Show closure will actually avert the harm
What are the last two parts of the 5-part Press Enterprise test for closure?
4. Has to be narrowly tailored, of as brief a time as can be
5. Show closure is essential to preserve higher values.
What are the five parts of the 5-art Press Enterprise test for closure?
1. Access by press/public poses substantial threat to defendant's rights/public interest
2. Consider alternativves
3. Show closure will actually avert the harm
4. Has to be narrowly tailored, of as brief a time as can be
5. Show closure is essential to preserve higher values.
What was Detroit Free Press v. Ashcroft about?
Deportation hearings held after 9/11; a directive sent to all immigration judges that all "special interest cases" ought to be closed.
What is the notable quote from Detroit Free Press v. Ashcroft (from its decision)?
"Democracies die behind closed doors."
What was the ruling in Detroit Free Press v. Ashcroft?
They held it was not legit for these deportation hearings to be closed; even the designation of a "special interest case" is done in secret.
True or false, there is a statutory-law permission to access trial and court records.
FALSE, there is a COMMON-law permission to access trial and court records.
What are some examples of fair use?
Criticism, comment, news reporting, scholarship, etc.
In Harper & Row v. Nation Enterprises, the majority made what argument?
Newsworthiness makes this an infringement.
In Harper & Row v. Nation Enterprises, the dissenting argument was what?
Newsworthiness makes this fair use.
What happened that led to Harper & Row v. Nation Enterprises?
Nation (unauthorized) published portions of Ford's memoirs on the Nixon pardon; it "scooped" the story from Time
What was the ruling in Harper & Row v. Nation Enterprises?
The Nation's publication did NOT constitute a fair use under the 1976 Copyright Revision Act.
What was the premise of the Court's decision in Central Hudson v. PSC of New York?
There needs to be a compelling government interest in order for a restraint to be placed on constitutionally-protected speech.
True or false: Central Hudson had a monopoly.
TRUE. Central Hudson had a monopoly (Court said this was irrelevant to the commercial speech issue at hand)
What was the four-part test in Central Hudson for defining when a restraint could be placed on commercial speech?
1. Speech protected under First Amendment (not illegal, misleading, coercive, etc.)
2. Government has "substantial" interest
3. Restraint proportional, directly advances asserted govt. interest
4. Regulations to be narrowly tailored to advancing the govt. interest
What did the court in Central Hudson say you COULD restrict, since it's less of a problem to regulate conduct than speech?
Time, place and/or manner of the speech.
What happened leading up to the Posadas case?
A Puerto Rico casino challenged a regulation saying that casinos were not to advertise to the local public (only to tourists).
True or False: the Posadas case passed the Central Hudson test, making it unconstitutional for the govt. to have the ban on that commercial speech.
FALSE. The Posadas case DID pass the Central Hudson 4-part test, but the result was that it WAS deemed constitutional for the govt. to have the ban on that commercial speech.
What was the ruling in Virginia State Pharmacy Board?
A state can not limit consumer access to information about prescription drug prices. (a form of commercial speech)
What happened that led to the 44 Liquormart v. Rhode Island case?
Rhode Island passed a statute banning the advertisement of retail liquor prices in places where liquor is not sold.
In 44 Liquormart, the court said there is a problem with what?
There is a problem with the idea that it's less of a problem to regulate conduct than speech.
The Court's 44 Liquormart decision, saying there's a problem with the idea that it's less of a problem to regulate conduct than speech, reversed what the Court said in what case?
Posadas.
True or False: Based on 44 Liquormart, Advertising concerning legal conduct has to go through the 4-part Central Hudson test.
TRUE. Legal conduct advertising (i.e., tobacco advertising) DOES have to go through the 4-part Central Hudson test, thanks to 44 Liquormart.
What was the holding in Dept. of Justice v. RCFP?
A refusal to disclose an individual's personal FBI crime record to a third party IS justifiable under the "personal privacy" exemption of FOIA.
True or False: As per Dept. of Justice v. RCFP, the public interest in criminal record information is increased when the requesting party is a news agency.
FALSE. The Court in this case said that that the public interest in criminal record info is NOT increased when requested by a news agency.
Two part test of National Archives v. Favish that warrants a privacy override:
1. The potentially advanced public interest is "signifiacnt" and not just for the sake of having the information
2. The information "is likely to advance that interest"
Dept. of Justice v. FCFP dealt with the heightened expectation of privacy when practical obscurity is present. Define "practical obscurity."
The general difficulty of accessing court records that keeps many people from inspecting them.
Translating records from paper to digital form changed the balance following what case?
Dept. of Justice v. RCFP
What was the holding in National Archives v. Favish concerning privacy and the FOIA?
The FOIA exemptions apply to a deceased person's family's privacy interest (in death scene photos). The privacy interest outweighs the public interest.
What was the holding in Reno v. ACLU?
Certain provisions in the 1996 Communications Decency Act restricted free speech.
Reno v. ACLU said that the CDA takes power away from who?
Parents
What was the aim of Congress with the Communications Decency Act?
"indecent" material distributed on the Internet
What did the court in Reno v. ACLU say concerning adult verification on the Internet?
A credit card essentially verifies an adult
Is indecent speech on the Internet protected?
Yes, though not specifically through Reno v. ACLU.
The Court in Reno v. ACLU equated the Internet most to which medium?
Print, which has the highest level of First Amendment protection (not broadcast)
Ashcroft v. ACLU dealt with which Congressional act?
Child Online Protection Act (COPA)
Ashcroft v. ACLU held what concerning COPA, which was Congress' second attempt to criminalize the distribution of certain information over the Internet
It held that COPA was in violation of the free speech clause in the First Amendment.
What was the holding in U.S. v. American Library Association?
Libraries have an obligation, if using public money, to filter Internet content. (Filtering software does NOT violate the First Amendment)
True or false: You can ask to have Internet filters taken off at a library, and the librarian should not ask questions.
TRUE. You CAN ask to have Internet filters taken off at a library, and the librarian SHOULD NOT ask questions.