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43 Cards in this Set
- Front
- Back
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5 sources of law
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1) statutory law
2) administrative law 3) common law 4) equity law 5) executive orders |
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Statutory law
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Laws passed by elected officials.
U.S. Code (Laws Passed by Federal Government) Georgia Code (Laws Passed by State Assembly) Local Laws |
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Administrative law
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Rules & regulations passed by Administrative Bureaus and Agencies (Independent Regulatory Agencies) of Governments.
The FCC and FTC have the authority to create and enforce rules including levying punishment including monetary fines |
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Common law
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Rules and Principles of Law that are Developed and Modified by Courts (“case law”)
1. Only Exists at State Level 2. Established in State Courts 3. Judges Follow Precedents From Other Courts (stare decisis – “let previous decisions stand”) * Only Applies When There is No Applicable Statute or Constitutional Law On a Given Matter |
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Equity law
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Judge Settles Lawsuits Based on “Fairness” and Fairness Using Ethics and Fairness
1. Divorce 2. Child custody 3. Restraining order |
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Executive orders
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Directive from the President, Governor or Mayor
1. Open Records, Media Access to Military Zones |
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1st amendment
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Ratified in the constitution in 1791.
Was about: licensing of presses, sedition laws, & censorship. Now: Free speech or press. |
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Ad hoc balancing
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Deciding the Meaning of the First Amendment on a Case-By-Case Basis
Courts Make Decisions According to Specific Facts of the Case |
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Original intent
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what the Constitution actually states
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Prior restraint
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Gov’t Imposed Restriction on Speech/Press
3 Components: Sweeping, Involves Gov’t Review, and Censorship/Ban of Content Ex: Near v. Minnesota (1931) Supreme Court Ruled that Any Prior Restraint Involving an Outright Ban on Expression Should Not Be Tolerated But.. The Court Did Not Impose an Outright Ban on Prior Restraints New York Times Co. v. United States (1971) Supreme Court Struck Down a Lower Court Order Preventing Publication of Stories Based on the Pentagon Papers. Court’s Order Left Open the Possibility that Prior Restraint May Be Needed to Protect National Security. Legal when... Obstructing Military Recruitment Revealing Troop Locations Obscene Publication Incitement to Violence Overthrow of Gov’t Fighting Words |
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Content based laws
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Single Out and Punish Ideas
Gov’t Disfavors a Viewpoint Presumptively Invalid Must Pass Strict Scrutiny Test Least Restrictive Means Restrict as Little Speech as Possible AND… Advance a Compelling Gov’t Interest National Security, Public Health, Elections, Public Welfare |
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Content neutral laws
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Time, Place, and Manner
Gov’t Objectives Unrelated to Speech Incidentally Affect Speech |
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O'Brien test
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Intermediate Scrutiny Test (O’Brien Test)
Advances Important Gov’t Interest AND… Not Related to Suppressing Speech AND… Narrowly Tailored to Meet Objective w/ Incidental Restriction of Free Speech |
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Public forum
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Public Has a General and Presumed Right to Use These Places
Public Parks, Streets, and Sidewalks. People Have a Right to Assemble and Engage in Free Speech as Long as Unnecessary and Disturbances are Not Created. Gov’t Has the Right to Set Up Rules, Hours, and Policies Designated Public Forum: Not Automatically Available Open to Public But With Time, Place, and Manner Restrictions. Town Meeting Hall, City/School Auditorium, Public Library, Stadium. Often, Permission Needed for Use. |
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Non public forum
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Not Open to General Public and Have Restrictions for Public Access.
Airport Boarding Areas, Military Bases, Prisons, and Jails |
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Smith act
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1940 Smith Act prohibited several types of speech that involved advocating a violent overthrow of the gov’t or belonging to a group that advocated toppling the gov’t by force.
Dennis v. U.S. In 1951 the Court ruled the Smith Act was constitutional. The Court stated that free speech rights were outweighed by national security interests. During the “Red Scare” of the 1950s the Smith Act was used by the federal gov’t to prosecute suspected Communists. Smith Act is Still Active Law Today |
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Case citations
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Smith v. Jones, 331 U.S. 367 (1995)
“U.S.” = U.S. Supreme Court 331=Volume Number 367= Page Number 1995= Year Court Decided Case Names of Cases: Smith v. Jones (Smith sues Jones) If Jones Loses and Appeals, then it Becomes Jones v. Smith Citations of Cases: Smith v. Jones, 28 F.3d 1353 (3d Cir. 1994) “F.” Means the Case Can Be Found in the Federal Reporter from the U.S. Courts of Appeal 28=Volume Number “3d”= Third Edition of the Volume 1353=Page Number of the Volume (3d. Cir. 1994)=the 3rd Circuit Decided the Case in 1994 |
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Plaintiff
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Person suing
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Defendant
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Person Defending the Charges
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Per Curium
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Unsigned Opinion of the Court
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Per Memorandum
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Vote of the Court w/o Providing an Opinion
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Writ of Certiorari
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The Court Grants a Writ of Certiorari to Hear a Case
All 9 Justices Consider the Writ and Vote Whether to Listen Chief Justice or the Most Senior Justice in the Majority Determines Who Will Draft an Opinion |
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6 Elements to Libel
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Defamation: Statement About a Person That Damages that Person’s Reputation
Falsity: The Information is False Communication: Story or Statement Must Have Been Broadcast or Published Where One Another Person (3rd Party) Has Seen or Heard It Identification: Story or Statement Identifies the Individual Either by Name or In Another Way That Clearly Identifies Them (can apply to small group) Fault: The Media Knew the Story Was False or Suspected It was False (Actual Malice or Reckless Disregard for the Truth) Harm: Story Harmed the Individual in Some Way (loss of reputation, embarrassment, financial) **Plaintiff Has to Prove Harm Occurred** |
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Actual malice
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Disregard for the Truth
“Hidden Agenda” by a Reporter “Settle a Score” Not Checking Your Facts! Unethical Reporting Changing Quotes Using Unreliable Sources Depth of Reporting (Not Verifying Information) Serious Doubts (Did the Reporter Have Doubts About Story’s Truthfulness) |
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Negligence
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Using a Single Source
Relying on other Media w/o Verifying Misstating Content of Documents Ill Will Toward Plaintiff Errors in Note Taking/Quoting Sources |
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Gertz v. Welch, 418 U.S. 323 (1974)
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Elmer Gertz, a Chicago Civil Right Lawyer Represented a Boy’s Parents in a Lawsuit Against Chicago Police.
A Police Officer Had Been Convicted of Killing a Young Boy. The American Opinion magazine Disagreed with the Murder Conviction and Ran An Article Accusing Gertz of Being a Communist. Gertz Sued the Magazine for Libel. |
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All-Purpose Public Figure
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Widely Known and Recognized in Society Occupying Prominent Positions in Society
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Limited (vortex) Public Figure
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People Who Voluntarily Enter the Spotlight To Try and Change the Outcome of an Important Public Controversy. These People “Return” to Being a Private Citizen After Leaving Spotlight.
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Involuntary Public Figure
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People Who Do Not Necessarily Thrust Themselves into Public Controversies But Are Drawn In by Specific Issues.
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Libel per se
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Direct Accusation (i.e. “John Smith is an Adulterer”)
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Libel per quod
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Indirect Accusation (i.e. “Mrs. Smith was often alone in her house with Mr. Jones could insinuate an affair)
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Private figures
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Do NOT Have to Prove Actual Malice
Must Prove Defendant Acted with Negligence (failure to exercise reasonable care in reportingpg 172) |
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Categorical Balancing
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Judges Weigh Different Categories Against One Another To Determine How Much Speech is Protected
May Be Applied to Future Cases Often Used in Cases of Disruptive Speech Central Question: Does Silencing Speech Outweigh the Benefits of Free Expression? Used to Determine that 1st Amend. Does Not Protect Blackmail, Extortion, Perjury, False Advertising, and Obscenity Courts Decided If It Is in the Best Interest of Society to Protect People from these Forms of Speech If the Harm From Speech Will Be Great, Courts Will Usually Decide to Protect Society from the Harm that Speech Will Induce. But… Gravity of the Harm is Rarely Known |
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Chilling Effect
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World War I (Clear and Present Danger)
Cold War (Are you a Communist?) 9/11 (Patriot Act, “With Us or Against Us”) |
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Fighting Words
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The First Amendment Does Not Protect Speech that is Directed at an Individual and Likely to Inflict Emotional Harm and/or Trigger Immediate Violence
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Clear and Present Danger Test/Brandenburg Test
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Allows for punishment of advocacy of illegal action if speech is
Directed Toward Inciting Immediate Violence or Illegal Action Is Likely to Produce that Action Individuals may be punished for criticizing government only when speakers intentionally incite immediate illegal activity |
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Campus Speech Codes
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Often Prohibit Verbal Harassment Based on Race, Gender, Religion etc. on College and University Campuses.
Courts Have Struck These Speech Codes Down Citing Them as Unconstitutional KSU’s Speech Code? Applies to Clear and Present Danger, Disruptive to Campus Academic Functioning, Bullying, Harassment |
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Intimidation and Threats
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Speech that Threatens an Individual with Violence or Intimidates Them is Not Protected. The Speech Conveys a Real Threat of Physical Harm and Causes the Victim to Fear for Their Life.
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Student speech: Public Schools:
Speech Can Be Restricted When… |
Student Expression Disrupts Education
Student Speech is Lewd or of Low Value When Schools Sponsor or Fund the Speech Regulate Clothing School Related Expression of Teachers Content of Student Publications Advocates Illegal Drug Use |
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Libel Damages: Actual
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Plaintiff Proves $$ Loss and $$ Damage to Reputation and is Awarded an Approx. Amount.
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Libel Damages: Special
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Exact $$ Figure for Material Loss Suffered
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Libel Damages: Presumed
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Plaintiff Does NOT Show Exact $$ Loss, Harm is Presumed
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Libel Damages: Punitive
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Punishment Award Beyond the Proven $$ Harm and Harm to Reputation (Often Large)
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