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47 Cards in this Set
- Front
- Back
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Facial
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U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void.
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Discretion
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Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion
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Overbroad
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overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment
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Stare Decisis
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Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions
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Writ of Cretoiri
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often abbreviated as cert., is a type of writ seeking judicial review, recognized in Roman, U.S., English, Canadian, Philippine, and other law, meaning an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review
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Amicus Brief
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a document that is filed in a court by someone who is not directly related to the case under consideration. The most classic example is a document filed by an advocacy group, such as the American Civil Liberties Union.
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Due process
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legal requirement that the state must respect all of the legal rights that are owed to a person
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Discovery
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pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions.
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Fair comment & criticism
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protection for robust, even outrageous published or spoken opinions about public officials and public figures.
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Doctrine of incorporation
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process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to 1925, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments
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Sullivan vs. New York Times
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Supreme Court case that established the actual malice standard
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Marbury vs. Madison
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formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government
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Citizens United vs. Federal Elections Commission
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United States Supreme Court held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions
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Morse vs. Frederick
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Court held 5-4 that the First Amendment does not prevent educators from suppressing, at a school-supervised event, student speech that is reasonably viewed as promoting illegal drug use
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John Peter Zenger case
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lawyer, Andrew Hamilton, established that truth is a defense against charges of libel.
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Holder vs. Humanitarian Law Project
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case decided in June 2010 by the United States Supreme Court regarding the USA PATRIOT Act (18 U. S. C. §2339B). The case was petitioned by attorney Eric Holder [1] and pertained to the section of the USA PATRIOT Act which prohibits material support to groups designated as terrorists
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Schenk vs. United States
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decision concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in a famous opinion by Justice Oliver Wendell Holmes, Jr., concluded that defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense
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Brandenburg vs. Ohio
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case based on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action
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Gitlow vs. New York
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ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain limitations on federal government authority set forth in the First Amendment—specifically the provisions protecting freedom of speech and freedom of the press—to the governments of the individual states.
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Cohen vs. California
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The Court overturned a man's conviction for the crime of disturbing the peace for wearing a jacket that displayed the phrase, "F the Draft."
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Chaplinsky vs. New Hampshire
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United States Supreme Court case in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech
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Tinker vs. Des Moines Independent School District
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defined the constitutional rights of students in U.S. public schools. The Tinker test is still used by courts today to determine whether a school's disciplinary actions violate students' First Amendment rights.
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Hazelwood vs. Kuhlmeier
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held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression
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Oprah case
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charged that Winfrey's show misled viewers into thinking that U.S. beef could be infected with mad cow disease.
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Masson vs. New York Magazine
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Articles published in The New Yorker, and in Malcolm's subsequent book In The Freud Archives, triggered a $10 million legal challenge by psychoanalyst Jeffrey Moussaieff Masson, former project director for the Freud Archives. In his 1984 lawsuit, Masson claimed that Malcolm had libelled him by fabricating quotations attributed to him; these quotes, Masson contended, had brought him into disrepute. After a decade of proceedings, a jury finally found against Masson in 1994 on the grounds that, whether or not the quotations were genuine, more evidence was needed to rule against Malcolm
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This speech receives most protection under First Amendment
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Political
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Jean Jacques Rousseau
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French political philosopher said all people are born free and equal but, unless constrained by morality and law, would become uncivilized and violent. People feel that Rousseau’s ideas on sovereignty laid the foundation for the French Revolution
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John Locke
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English philosopher and political theorist who said all people have fundamental natural rights, including life, personal liberty and self-fulfillment. Freedom of expression is central to these natural rights. In contrast, government has no innate rights or natural authority
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John Milton
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“Through all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter.” Author of Areopagitica.
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William Blackstone
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Legal scholar said that under English common law, freedom of speech meant only that government could not censor speech prior to publication. He wrote, “The liberty of press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he please before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.
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Rational
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A standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review.
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Intermediate scrutiny (O’Brien test)
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A three-part test used to determine whether a content-neutral law is constitutional
Law is constitutional if it: 1. Is not related to suppression of speech 2. Advances important government interest. 3. Narrowly tailored to achieve that interest |
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Strict scrutiny
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A test for determining the constitutionality of laws restricting speech, under which the government must show it employs the least restrictive means available to directly advance a compelling interest
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history of campaign speech regulation
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*Buckley vs Valeo (1976)
*Bipartisan Campaign Reform Act (2002) *McConnel vs. FEC (203) *Federal Election Commission v. Wisconsin Right to Life (2007) *Citizen’s United vs. FEC (2010) |
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Supreme Court’s approach toward anonymous speech
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US Supreme Court calls anonymous political speech an “honorable tradition” that “is a shield from the tyranny of the majority.
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Public Forum
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Government property held for use by the public, usually for purposes of exercising rights of speech and assembly.
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Designated public forums
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some government spaces or buildings have never served primarily as places for public assembly or speech, the gov’t chooses to allow public use of such spaces (university classrooms, public libraries, state fairgrounds, etc) The gov’t limits the times, places or manners of public use to ensure that public access does not conflict with the primary function of the property.
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Nonpublic forums
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Government held property that is not available for public speech and assembly purposes. A federal penitentiary for example and military bases, prisons, post offices
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First Amendment difference between college and high school newspapers
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Though high school students still have First Amendment rights, speech considered to cause disruption to the learning environment or speech causing an invasion of the rights of others may be regulated by school officials.
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difference between slander and libel
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Slander is spoken words that damage reputation and libel is written defamation
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why truth is so important in libel cases
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John Peter Zenger trial- “it’s not libel if it’s the truth”
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three things needed to win a libel case in US
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1) Disseminated
2) False 3) Caused damage |
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difference between negligence and actual malice in journalistic terms (re: private vs. public figures)
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Negligence-generally the failure to exercise reasonable or ordinary care. In libel law, negligence is usually the minimum level of fault a plaintiff must prove in order to receive damages. Actual malice- in libel law a statement made knowing it is false or with reckless disregard for its truth. Private Figures are those who do not qualify as a public official or a public figure. Public figure- a plaintiff who is in the public spotlight usually voluntarily. Private figures-negligence...Public figures- actual malic
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“absolute privilege” and “conditional privilege” as it applies to libel of journalists
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Absolute privilege: A complete exemption from liability for the speaking or publishing of defamatory words of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts.
conditional (or qualified) privilege: An exemption from liability for repeating defamatory words of and concerning another because the original statement was made within the performance of duty such as in judicial or political contexts; usually claimed by journalists who report statements made in absolutely privileged situations; this privilege is conditional (or qualified) on the premise that the reporting is fair and accurate |
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Privacy law is rooted in what US amendments to the Constitution?
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privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information.
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Cox Broadcasting vs. Cohn
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First time a court said that truthful information obtained from a public record cannot be the basis of a private facts lawsuit. This case dealt with a 17 yr old rape victim whose identity was not disclosed pending the trial. A reporter discovered the name through indictments that were open for examination. Reporter released the name and the father sued. He won trial at GA Supreme Court but US Supreme Court reversed saying that the files were open to public, therefore she is allowed to use them to report facts.
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Appropriation
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Using a person’s name, picture, likeness, voice or identity for commercial or trade purposes without permission
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