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237 Cards in this Set

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Five Sources of Laws
Common Law, Constitutional Law, Statutory Law, Executive and Administrative Orders, Equity Law
What does article one of the Constitution establish?
Legislative Branch
What does the second article of the Constitution establish?
Executive Branch
What does the third article of the Constitution establish?
Judiciary Branch
Who interprets the Constitution?
US Supreme Court
What grants basic rights?
Constitution
T/F States can grant broader rights in their Constitutions.
true
What are the two ways to declare a law unconstitutional?
void for vagueness doctrine or overbreadth doctrine
When is a law declared vague?
When a person of reasonable and ordinary intelligence is unable to tell what speech is allowed
Why is vagueness bad?
chills speech and gives too much discretion to gov't officials
What is the overbreadth doctrine?
a law is overbroad if it does not only aim at problems within the allowable areas of gov't control, but also sweeps within its ambit or scopr other activities constitute an exercise of protected expression
example is US v Stevens: animal crush videos
What are the characteristics of common law?
-developed in England
-judge made law
-stare decisis
-role of precedent
What are the characteristics of statutory law?
-federal and state laws
-criminal laws
-Congress passes federal laws
-state legislatures pass state laws
-elected officials draft and enact laws on behalf of constituents
-both houses of congress vote on a bill and president/governor signs off on it
Who passes federal laws?
Congress
Who passes state laws?
state legislatures
What are the characteristics of equity law?
-judge made law
-rules of procedure more flexible
-no jury
-judge issues judicial decrees
-judge decides based on what's right and fair...not necessarily precedent
-equitable remedies
-judge tells losing party to act or not act in a certain way
-restraining orders
how many judicial systems does the US have?
52
What are the courts that make up the 52 judicial court?
-each 50 states has its own judicial system
-federal judicial system
-D.C.
What are the two types of courts that each system is composed of?
appellate court
trial court
What are appellate courts?
review whether trial courts erred in their application of the law
What court hears the facts in a case?
trial court
What are the two types of jurisdiction?
-federal question jurisdiction
-diversity jurisdiction
What are the courts in the federal system?
Supreme Court (appellate)
Circuit Court of Appeals (appellate court)
US District Courts (trial courts)
When is the USSC using original jurisdiction?
when USSC is the first to hear a case and acts as a trial court
disputes between two or more states and usually involves natural resources
Who establishes the USSC's appellate jurisdiction?
Congress
How does a case reach the USSC?
direct appeal
writ of certiorari
What is the terminology used in writ of certiorari?
petitioner is called appellant
respondent is called appellee
What is the discretionary process used for a case to reach USSC?
rule of four
What are the steps after the USSC has granted certiorari?
oral arguments, legal briefs, amici curiae
What are the seven types of USSC opinions?
opinion of the court (majority)
concurring opinion
dissenting opinion (minority)
plurality opinion
per curiam opinion (unsigned opinion)
memorandum order
How many district courts are there in the US?
94
T/F Each state has at least 1 federal district court
true
What hearings go to trial courts?
civil and criminal
T/F Congress has power to create district courts
true
How many US Circuit Court of Appeals are there?
13
1 of appeals/circuit
11 numbered
12 is admin agency rulings
13 is patents and trademarks
Are federal judges elected or appointed?
appointed but for life, senate must confirm appointment
What do state constitutions establish?
-structure of its judicial system
-establishes jurisdiction of its court
T/F Every state has its own court system
true
T/F all states have the same court structure
true
what is the state court structure?
trial court
intermediate appellate court
state supreme court
State judges are _______
elected
What is judicial review?
the right of any court to declare any law or official gov'tal agency invalid because it violates a constitutional provision
T/F Any court can exercise power
true
What is judicial maxim?
if a law can be interpreted in more than one way where are least one way renders the law constitutional/valid then that's the way the law should be construed
plaintiff vs defendant
civil lawsuits
civil complaint
civil lawsuits
pleading
civil lawsuits
service
civil lawsuits
answer
civil lawsuits
demurrer/motion to dismiss
civil lawsuits
discovery
civil lawsuits
summary judgment
civil lawsuits
judicial instructions
civil lawsuits
BOP = preponderance of the E
civil lawsuits
verdict
civil lawsuits
judgment of the court...JNOV
civil lawsuits
damages
civil lawsuits
indictment...grand jury
criminal prosecution
information...prosecutor
criminal prosecution
arraignment
criminal prosecution
pretrial hearings
criminal prosecution
trial
criminal prosecution
BOP = beyond a reasonable doubt
criminal prosecution
judgment of acquittal (JOA)
criminal prosecution
jury instructions
criminal prosecution
verdict
criminal prosecution
sentencing
criminal prosecution
What did freedom of the press mean in England?
licensing system (prior restraints)
seditious libel
patents and monopolies
What was freedom of press in the American colonies?
licensing systems (prior restraints)
taxes and sedition laws
jury nullification
community censorship
Declaration of Independence
1776
Articles of Confederation
1781
US Constitution ratified
1787
Bill of rights ratified
1791
1st amendment doesn't protect against ____________
community censorship
What are the 5 freedoms guaranteed by the first amendment?
speech, press, assembly, petition, religion
What did the framers intend when they ratified the first amendment?
freedom from prior restraints/censorship/licensing systems
not necessarily post-publication punishment
what are alien and sedition acts of 1798 and espionage act of 1917 examples of?
post-publication publishment
What are the 7 first amendment theories?
absolutist
ad hoc balancing
marketplace of ideas
preferred position balancing
meiklejohnian/self-governance
access
self-realization
What is absolutist theory?
congress shall make no law
Justice Black
most haven't adopted
categories of unprotected speech
Ad hoc balancing theory
1st amendment weighed against competing rights in case by case basis
scales reset at equilibrium for every case
scales aren't tipped in favor of 1st amend
not efficient since unpredictable
chilling effect
relies on personal biases of judges
Marketplace of ideas theory
search for truth rationale
Milton, Mill, Justice Oliver Wendell Holmes
dominates 1st amendment jurisprudence
highly criticized
Preferred Position Balancing Theory
first amend rights are fundamental
fundamental rights given greater protections
implies not all freedoms are fundamental
scales tipped in favor of fundamental freedoms
presumes gov't action that infringes on first amend freedoms are unconstitutional and gov't has BOP to prove otherwise
more certainty and predictability
Meiklejohnian/Self-Governance Theory
Meiklejohn proposed in 1940s
freedom of expression is means to an end
ultimate end is to have successful gov't
hierarchial approach to speech
not all speech created equal
freedom of expression exists in order for our democratic system to work
only speech that should be protected enhances public's self-governing faculties
Access Theory
access to mass comm mediums is not equal
access to marketplace of ideas is not equal
gov't should control access to press to ensure equality
rejected with print publications
adopted with broadcast mediums
Miami v Tornilo
USSC rejected access theory with print publications
Red Lion Broadcasting v. FCC
access theory adopted when it came to broadcasting medium
Self-realization/Self-fulfillment theory
freedom of expression is an end in itself
speech is important regardless of impact
expressing identity through speech
identity is inherent to human experience
3 issues surrounding gov't powers and the first amendment freedoms
power of govt to restrict and punish those who criticize it and publish attacks against it
power of gov't to levy taxes on press and indirectly censor it
power of govt to prohibit publication of information and ideas it believes to be harmful
years of sedition laws:
Alien and Sedition Acts
1798
Espionage Act
1917
Sedition Act
1918
Smith Act
1940
Alien and Sedition Act of 1798
enacted 7 years after 1st Amend
passed by Federalist Congress to curtail criticism by Jeffersonian party
prohibited false, scandalous and malicious publications against US gov't, Congress and president
15 prosecutions
USSC never had to decide on its constitutionality
What was the historical context of seditious libel in the early 1900s?
labor unrest and movements
disenchantment with capitalism drove people to socialism
Espionage Act 1917
criminalized willful conveyance of false reports with the intent to interfere w/ the war effort. dealt with espionage and punished those that interfered with the war effort
Sedition Act 1918
amend to espionage act meant to give gov't more power to suppress dissenting voices since it meant to target disloyal or profane speech and was intended to cause contempt of or scorn for federal gov't, Constitution, flag or uniform of armed services
Smith Act
directed at Communists
made it a crime to advocate the violent overthrow of the govt, to conspire to advocate the violent overthrow of the gov't, to org a group that advocated the violent overthrow of gov't
Yates v US
held that gov't couldn't prosecute under Smith Act only when it provides evidence that the defendants "advocated for actual action aimed at forcible overthrow of the gov't" USSC made a distinction between abstract threats and real action against gov't
Schneck v US
opinion by Justice Holmes
clear and present danger test
Whitney v CA
concurring opinion by Justice Brandeis
modified clear and present danger test
added immediacy
clear and imminent danger test
Brandeis used marketplace of ideas theory
Dennis v US
opinion by Chief Vinson
another modification to Holmes Clear and Present Danger test
clear and probable danger
Brandenburg v OH
per curiam opinion
incitement test
modern version of Holmes clear and present danger test
what are the 4 elements involved in the incitement test?
intent, imminence, lawless action, probability
T/F Brandenburg established that 1st amendment protects abstract advocacy of violence, but not direct incitement of imminent lawless action
true
US v Strandlof or US v Alvarez
courts held Stolen Valor Act unconstitutional because it punished mere utterance of words without harm
Brandenburg Incitement Test
courts use incitement test to determine whether or not a particular media entity should be liable for harmful and illegal conduct of others
T/F Plaintiffs suing media for harmful conduct of others rarely succeed under Brandenburg incitement test because it's difficult for them to meet the intent element of test
true
Hold your Wee for a Wii and Locate the DJ contest are examples of
negligence
Contradt v NBC Universal
To Catch a Predator case
foreseeable risk that he'd kill himself
Brown v Entertainment Merchants Association
USSC held that CA law banning sale and rental of violent video games to minors was unconstitutional
judicial review applied
video games are speech
law was content based
strict scrutiny judicial review
law was vague and no compelling interest
Gitlow v. NY
USSC incorporates first amend into due process clause of 14th amend...extended first amend rights to individuals against state action
prior restraints
stop expression before it occurs
What are the rules of prior restraints?
-presumed unconstitutional
-gov't has burden of rebutting presumption of unconstitutionality, usually need to show compelling interest
-must be narrowly tailored
-tier 3 speech that falls outside the first amendment can be restrained after a judicial proceeding where court finds that speech is unprotected
Near v. Minnesota
5-4 decision
PRs presumed to be unconstitutional but are permissible under certain circumstances
NYTimes v US
6-3 decision
gov't argued that publication of materials would compromise national scrutiny
stands for principle that the govt has the burden of proving why a PR is needed
US v Progressive
district court case
never reviewed by an appellate court
judge enjoined a magazine article that taught readers how to construct a hydrogen bomb
judge found that the article would likely cause a direct, immediate and irreparable injury to this nation
US v Bell
3rd circuit court of appeals
involved false and fraudulent commercial speech
how to avoid tax website
court held that speech at issue was protected by 1st amendment and therefore the same standard that applies to protected speech doesnt apply here
PR was permissable
What are the first 10 amendments called?
bill of rights
What branch of the constitution encompasses the USSC
judiciary branch, article 3
If a law doesn't comply with the US Constitution then...
not good law, unenforceable
two ways laws can be challenged
as applied
on its face
as applied challenge
that law as it applies to facts of my case is unconstitutional and violates my rights
on its face
attacking language of the law for being void or vague and would make law unconstitutional for everyone
needed to challenge a law:
standing and be prosecuted
4 ways to treat precedents
1. accept/apply
2. modify/update
3. distinguish
4. overrule
copyright law is ex of
statutory law
differences between common law and statutory law
common law is case by case created by judge and can't predict future
statutory law collected in code books and can predict
where common law is found:
case opinions
how federal bills are passed:
1. start as idea and call local congressman
2. idea presented to Congress and becomes a bill
3. committee debates bill
4. House of Representatives vote
5. if yes sent to Congress and they vote
6. sent to white house to sign
7. if signed then becomes a law
executive order 9066
FDR - Japanese Americans secluded
what do you sue for in common law cases?
money damages
equity sue for...
someone to stop or start doing something (ex restraining order)
intent:
did speaker intend to promote unlawful action?
imminence:
how close in time was speech and action? proximity
lawless action:
unlawful conduct, must break criminal law
probability:
how likely is it that a person will act on your words? how close to speaker?
incitement legal definition
"...where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions"
Brandenburg test established that first amendment protects:
abstract advocacy of violence
T/F Brandenburg test protects direct incitement or imminent lawless action
false
incitement ------>
unlawful action
negligence ------->
foreseeable risk of harm
diversity jurisdiction
someone sues a person in a different state, diversity of citizenship
federal jurisdiction
involves Constitution or case involves federal law
what establishes jurisdiction?
Constitution
writ of certiorari
grants review of case
rule of 4
if 4 justices feel a case has merit then it will be reviewed
amici curiae
involved with writ of certiorari...people who have interest in case but aren't directly involved in the case
majority opinion
at least 5 justices
concurring opinion
agrees with majority but for different reasons and writes them down
dissenting opinion
law out opinion for why disagree with majority
plurality opinion
very bad. no majority opinion on reasoning but agree with outcome
per curiam opinion
unsigned, justices work on opinion but don't put names on it
memorandum opinion
no opinion, just because and don't explain opinions
uncommon and no definite rulings in opinions
per curiam and memorandum
sitting en banc
all hear arguments
case goes to what court first?
district then circuit
lawsuits
private person sues private person
criminal cases
state vs person
service
served notice of being sued and has to answer
types of service answers:
admit, deny, no idea
demurrer
defendant admits wrong, but no legal grounds for suing
discovery
both sides see each others arguments
JNOV
judgment notwithstanding the verdict...judge gives totally different answer than the jury
civil complaint
lawsuit
pleading
plaintiff alleges and asks for remedy
directed verdict
judge awards plaintiff because defendant didn't respond
summary judgment
ask judge to choose your side if not settled then case goes to trial
indictment ---> grand jury
case seen by jury, prosecutor can't be blamed, community's decision
in loco parentis
in place of parents
Tinker is a _____ standard
reactive
Barber v. Dearborn
very similar to Tinker case, boy wore Bush shirt to school, no interference or disruption, passive
Palmer v. Waxahacie
school had dress code that said no messages on clothing, boy wears John Edwards shirt, lost case because time manner place restriction with dress code
Dean v. Utica Community Schools
only case where school officials lost when trying to apply Hazelwood standard because student did good research, no errors and journalistic standard
how America was different from England in terms of pre-1st amendment times?
America had jury nullification: allowed jury to decide what's fair and just
Articles of Confederation 1781
central gov't, little power
Constitution 1787
central gov't, very powerful, states gave up rights
Bill of Rights 1791
limits power of federal gov't on individuals
Standards of judicial review: strict scrutiny
compelling interest (for restricting speech) and narrowly tailored (to further the issue)
Standards of judicial review: intermediate scrutiny
legitimate/significant interest and narrowly tailored
Hierarchy of Protected Speech
1. political and social expression
2. commercial and nonobscene sexual material
3. incitement, fighting words, false ads, fraud, defamation, obscenity, child porn, true threats
type of scrutiny where gov't has a better chance of winning
immediate scrutiny...very hard to win strict scrutiny
judicial review
review of gov't action
T/F no plaintiff in criminal case
true...prosecutor
Schneck v US
-dealt with Smith Act
-passed out leaflets about rich interests in WWI
-said US shouldn't be in war
-SC upheld conviction
-prosecuted under Espionage Act
-clear and present danger
-Holmes example of shouting fire in a building
-Schneck prosecuted
Whitney v. California
-deals with state sedition law
-65 year old Anita attended Communist meeting
-arrested for being there
-Brandeis agreed with upholding conviction but for different reason
-Brandeis added imminence to test
Dennis v US
-federal gov't prosecutes under Smith Act
-step back for test's progression
-11 people prosecuted for teaching communist/socialist ideas
-Chief vinson added risk test
-no imminence in this test
Brandenburg v Ohio
-modern version of Brandenburg clear and present danger test
-KKK moron gives speech
-conviction reversed
lies fall in this tier of hierarchy of protection
first
Near v Minnesota
prior restraints presumed unconstitutional...except under these circumstances: emergency (national security), obscene,, protect community from incitement
NYT v US
Pentagon Papers...showed real reason why US was in Vietnam War...papers leaked by defense analyst...upheld Near v Minnesota since gov't could prove there was a danger
US v Progressive
taught people how to build hydrogen bombs, ex of how speech can be enjoined
prior restraints upheld in these cases:
US v Bell and US v Progressive
US v Bell
unprotected speech since false advertising so prior restraints upheld
strict scrutiny
applies to top level of speech hierarchy
intermediate scrutiny
applies to 2nd level speech: commercial
Content-Based
language of the law directly affects speech, language is directed at a certain type of speech...strict scrutiny
Content-Neutral
time place manner regulations...regulates conduct doesn't affect speech...4 elements need to happen for it to be content-neutral: intermediate scrutiny, law must be content neutral, cannot ban all communication, gov't needs legitimate, significant or substantial interest and law needs to be easily tailored
most protective of speech school case
Tinker
more restrictive on speech, judges look to defer judgment to school officials
Hazelwood
Tinker v Des Moines School District
-passive expression
-political message
-no interference or disruption
-no captive audience
-arm bands
Hazelwood School District v Kuhlmeier
-school sponsored newspaper
-social expression
-teen pregnancy and divorce
-principal censored articles to protect privacy and maintain editorial balance
Bethel School District v Fraser
-student's innuendo speech at school assembly
-active expression
-lewd, profane, vulgar language
-captive audience
Morse v Frederick
-Bong hits for Jesus
-advocacy of illegal drug use
-school sponsored event with supervisors
-narrow ruling
-doesn't overrule previous cases
what standard of school speech should you try to frame your case as?
Tinker so Tinker standard would apply
standard used with student off campus speech:
reasonably foreseeable risk of substantial disruption standard
Kincaid v Gibson
-KY yearbook
-admin didn't like cover or content so didn't allow to print
-court focused on yearbook as a designated public forum so has more first amend rights
-Hazelwood didn't apply
Hosty v Carter
-wrote harsh article in school-sponsored newspaper
-Hazelwood decision depended on if paper was considered public or nonpublic forum
what circuit gives college students more rights?
6th
hate speech
words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender or sexual orientation
-protected by 1st amend
fighting words
words "which by their very utterance inflict injury or tend to incite an immediate breach of peace"
-usually face to face
-not protected by first amend
true threats of violence
statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group...intimidation is a true threat to a person with intent of placing the person in fear of bodily harm or death
-not protected by first amend
Chaplinsky v New Hampshire
Jehovah's witness calls officer rude names
not protected by first amend
creates Fighting Words Doctrine
Fighting Words Doctrine factors
-face to face personal encounter
-words must have "a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed"
-Manner and context in which words are used
-objectively reasonable person standard
obscenity, indecency and pornography...
are not created equal under the law
obscenity
material only becomes obscene when it satisfies the Miller Test.
-term covers sexually explicit material
-legal conclusion
-not protected by first amend
indecency:
sexually explicit and graphic material that's not quite obscene
-protected by first amendment
-can be regulated in radio and TV by FCC
pornography:
no legal definition or significance
Comstock Act of 1873
no definition of obscenity, discriminatory
Hicklin Rule
material is obscene if it can corrupt minds (kids)
Roth v US 1957
USSC abandons Hicklin Rule and USSC starts 9-year definition of obscenity
-Roth-Memoirs test
Roth-Memoirs Test
-dominant theme of the material must appeal to prurient interest
-court must find material patently offensive because it affronts contemporary community standards relating to description or representation of sexual matters
-before something can be found to be obscene, it must be utterly without redeeming social value
Miller v California 1973
Miller Test is conjunctive test:
1. average person applying contemporary local community standards, find that work, taken as a whole, appeals to prurient interest
2. work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
3. work in question lacks serious literacy, artistic, political and scientific value
Miller Test: Average Person and Prurient Interest
-trier of fact (judge/jury) determines prong/element 1 of miller test
-standard of community
-children not in community
prurient interest
morbid, shameful or lascivious interest in nudity, sex or excretion
Miller Test: Community Standards
trier of facts (judge/ jury) determines community standards
-local standards
-venue shopping
-evidence of community standards not needed
Miller Test: Serious Value
-judge plays role in determination but jurors are supposed to make determination
-based on reasonable person
-expert testimony used
-designed to mitigate community censorship
Variable Obscenity Statutes:
material could otherwise be legally distributed to adults and banned from people under 18 so states can have different standards for kids and adults
child porn
not protected by first amend
sexting statutes
take from felony to misdemeanor
local laws affecting sexually oriented businesses (SOBs)
zoing regulations and expressive conduct regulation
zoning laws
upheld because it has a substantial interest in decreasing or reducing secondary effects of SOBs (ex. crime, decreased property values, decrease in quality of life)
requirements of zoning laws
constitutional if:
1. serves substantial gov't interest (immediate scrutiny)
2. doesn't completely ban all SOBs in municipality and unreasonably limit alternative avenues of communications
Expressive Conduct Regulations
designed to dictate appropriate boundaries of nudity inside SOBs
-permissable because only minimally interfere with overall expression
-intermediate scrutiny
Communications Decency Act of 1996
Reno v ACLU (1997)
-unconstitutional because language vague and overbroad
-USSC found issue with phrase patently offensive and indecent
-USSC concerned that CDA didn't have social value element
Child Online Protection Act of 1998
Ashcroft v ACLU (2004)
-unconstitutional
-COPA was content-based law and therefore subject to strict scrutiny
-didn't pass strict scrutiny because not narrowly tailored to achieve less restrictive means for regulating speech
Children's Internet Protection Act 2001
US v American Library Assoc 2003
constitutional
difference between Roth and Miller test
value standard, more serious in Miller