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237 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Five Sources of Laws
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Common Law, Constitutional Law, Statutory Law, Executive and Administrative Orders, Equity Law
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What does article one of the Constitution establish?
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Legislative Branch
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What does the second article of the Constitution establish?
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Executive Branch
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What does the third article of the Constitution establish?
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Judiciary Branch
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Who interprets the Constitution?
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US Supreme Court
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What grants basic rights?
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Constitution
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T/F States can grant broader rights in their Constitutions.
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true
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What are the two ways to declare a law unconstitutional?
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void for vagueness doctrine or overbreadth doctrine
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When is a law declared vague?
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When a person of reasonable and ordinary intelligence is unable to tell what speech is allowed
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Why is vagueness bad?
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chills speech and gives too much discretion to gov't officials
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What is the overbreadth doctrine?
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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
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example is US v Stevens: animal crush videos
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What are the characteristics of common law?
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-developed in England
-judge made law -stare decisis -role of precedent |
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What are the characteristics of statutory law?
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-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 |
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Who passes federal laws?
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Congress
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Who passes state laws?
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state legislatures
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What are the characteristics of equity law?
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-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 |
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how many judicial systems does the US have?
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52
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What are the courts that make up the 52 judicial court?
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-each 50 states has its own judicial system
-federal judicial system -D.C. |
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What are the two types of courts that each system is composed of?
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appellate court
trial court |
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What are appellate courts?
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review whether trial courts erred in their application of the law
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What court hears the facts in a case?
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trial court
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What are the two types of jurisdiction?
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-federal question jurisdiction
-diversity jurisdiction |
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What are the courts in the federal system?
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Supreme Court (appellate)
Circuit Court of Appeals (appellate court) US District Courts (trial courts) |
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When is the USSC using original jurisdiction?
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when USSC is the first to hear a case and acts as a trial court
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disputes between two or more states and usually involves natural resources
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Who establishes the USSC's appellate jurisdiction?
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Congress
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How does a case reach the USSC?
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direct appeal
writ of certiorari |
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What is the terminology used in writ of certiorari?
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petitioner is called appellant
respondent is called appellee |
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What is the discretionary process used for a case to reach USSC?
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rule of four
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What are the steps after the USSC has granted certiorari?
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oral arguments, legal briefs, amici curiae
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What are the seven types of USSC opinions?
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opinion of the court (majority)
concurring opinion dissenting opinion (minority) plurality opinion per curiam opinion (unsigned opinion) memorandum order |
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How many district courts are there in the US?
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94
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T/F Each state has at least 1 federal district court
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true
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What hearings go to trial courts?
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civil and criminal
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T/F Congress has power to create district courts
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true
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How many US Circuit Court of Appeals are there?
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13
1 of appeals/circuit 11 numbered 12 is admin agency rulings 13 is patents and trademarks |
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Are federal judges elected or appointed?
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appointed but for life, senate must confirm appointment
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What do state constitutions establish?
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-structure of its judicial system
-establishes jurisdiction of its court |
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T/F Every state has its own court system
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true
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T/F all states have the same court structure
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true
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what is the state court structure?
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trial court
intermediate appellate court state supreme court |
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State judges are _______
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elected
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What is judicial review?
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the right of any court to declare any law or official gov'tal agency invalid because it violates a constitutional provision
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T/F Any court can exercise power
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true
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What is judicial maxim?
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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
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plaintiff vs defendant
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civil lawsuits
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civil complaint
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civil lawsuits
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pleading
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civil lawsuits
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service
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civil lawsuits
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answer
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civil lawsuits
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demurrer/motion to dismiss
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civil lawsuits
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discovery
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civil lawsuits
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summary judgment
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civil lawsuits
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judicial instructions
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civil lawsuits
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BOP = preponderance of the E
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civil lawsuits
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verdict
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civil lawsuits
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judgment of the court...JNOV
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civil lawsuits
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damages
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civil lawsuits
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indictment...grand jury
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criminal prosecution
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information...prosecutor
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criminal prosecution
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arraignment
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criminal prosecution
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pretrial hearings
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criminal prosecution
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trial
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criminal prosecution
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BOP = beyond a reasonable doubt
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criminal prosecution
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judgment of acquittal (JOA)
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criminal prosecution
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jury instructions
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criminal prosecution
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verdict
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criminal prosecution
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sentencing
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criminal prosecution
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What did freedom of the press mean in England?
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licensing system (prior restraints)
seditious libel patents and monopolies |
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What was freedom of press in the American colonies?
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licensing systems (prior restraints)
taxes and sedition laws jury nullification community censorship |
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Declaration of Independence
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1776
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Articles of Confederation
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1781
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US Constitution ratified
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1787
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Bill of rights ratified
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1791
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1st amendment doesn't protect against ____________
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community censorship
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What are the 5 freedoms guaranteed by the first amendment?
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speech, press, assembly, petition, religion
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What did the framers intend when they ratified the first amendment?
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freedom from prior restraints/censorship/licensing systems
not necessarily post-publication punishment |
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what are alien and sedition acts of 1798 and espionage act of 1917 examples of?
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post-publication publishment
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What are the 7 first amendment theories?
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absolutist
ad hoc balancing marketplace of ideas preferred position balancing meiklejohnian/self-governance access self-realization |
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What is absolutist theory?
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congress shall make no law
Justice Black most haven't adopted categories of unprotected speech |
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Ad hoc balancing theory
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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 |
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Marketplace of ideas theory
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search for truth rationale
Milton, Mill, Justice Oliver Wendell Holmes dominates 1st amendment jurisprudence highly criticized |
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Preferred Position Balancing Theory
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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 |
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Meiklejohnian/Self-Governance Theory
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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 |
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Access Theory
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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 |
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Miami v Tornilo
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USSC rejected access theory with print publications
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Red Lion Broadcasting v. FCC
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access theory adopted when it came to broadcasting medium
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Self-realization/Self-fulfillment theory
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freedom of expression is an end in itself
speech is important regardless of impact expressing identity through speech identity is inherent to human experience |
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3 issues surrounding gov't powers and the first amendment freedoms
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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 |
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years of sedition laws:
Alien and Sedition Acts |
1798
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Espionage Act
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1917
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Sedition Act
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1918
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Smith Act
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1940
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Alien and Sedition Act of 1798
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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 |
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What was the historical context of seditious libel in the early 1900s?
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labor unrest and movements
disenchantment with capitalism drove people to socialism |
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Espionage Act 1917
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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
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Sedition Act 1918
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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
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Smith Act
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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 |
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Yates v US
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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
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Schneck v US
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opinion by Justice Holmes
clear and present danger test |
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Whitney v CA
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concurring opinion by Justice Brandeis
modified clear and present danger test added immediacy clear and imminent danger test Brandeis used marketplace of ideas theory |
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Dennis v US
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opinion by Chief Vinson
another modification to Holmes Clear and Present Danger test clear and probable danger |
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Brandenburg v OH
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per curiam opinion
incitement test modern version of Holmes clear and present danger test |
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what are the 4 elements involved in the incitement test?
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intent, imminence, lawless action, probability
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T/F Brandenburg established that 1st amendment protects abstract advocacy of violence, but not direct incitement of imminent lawless action
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true
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US v Strandlof or US v Alvarez
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courts held Stolen Valor Act unconstitutional because it punished mere utterance of words without harm
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Brandenburg Incitement Test
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courts use incitement test to determine whether or not a particular media entity should be liable for harmful and illegal conduct of others
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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
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true
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Hold your Wee for a Wii and Locate the DJ contest are examples of
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negligence
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Contradt v NBC Universal
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To Catch a Predator case
foreseeable risk that he'd kill himself |
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Brown v Entertainment Merchants Association
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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 |
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Gitlow v. NY
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USSC incorporates first amend into due process clause of 14th amend...extended first amend rights to individuals against state action
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prior restraints
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stop expression before it occurs
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What are the rules of prior restraints?
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-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 |
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Near v. Minnesota
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5-4 decision
PRs presumed to be unconstitutional but are permissible under certain circumstances |
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NYTimes v US
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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 |
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US v Progressive
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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 |
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US v Bell
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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 |
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What are the first 10 amendments called?
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bill of rights
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What branch of the constitution encompasses the USSC
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judiciary branch, article 3
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If a law doesn't comply with the US Constitution then...
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not good law, unenforceable
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two ways laws can be challenged
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as applied
on its face |
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as applied challenge
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that law as it applies to facts of my case is unconstitutional and violates my rights
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on its face
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attacking language of the law for being void or vague and would make law unconstitutional for everyone
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needed to challenge a law:
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standing and be prosecuted
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4 ways to treat precedents
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1. accept/apply
2. modify/update 3. distinguish 4. overrule |
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copyright law is ex of
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statutory law
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differences between common law and statutory law
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common law is case by case created by judge and can't predict future
statutory law collected in code books and can predict |
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where common law is found:
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case opinions
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how federal bills are passed:
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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 |
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executive order 9066
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FDR - Japanese Americans secluded
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what do you sue for in common law cases?
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money damages
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equity sue for...
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someone to stop or start doing something (ex restraining order)
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intent:
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did speaker intend to promote unlawful action?
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imminence:
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how close in time was speech and action? proximity
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lawless action:
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unlawful conduct, must break criminal law
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probability:
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how likely is it that a person will act on your words? how close to speaker?
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incitement legal definition
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"...where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions"
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Brandenburg test established that first amendment protects:
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abstract advocacy of violence
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T/F Brandenburg test protects direct incitement or imminent lawless action
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false
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incitement ------>
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unlawful action
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negligence ------->
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foreseeable risk of harm
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diversity jurisdiction
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someone sues a person in a different state, diversity of citizenship
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federal jurisdiction
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involves Constitution or case involves federal law
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what establishes jurisdiction?
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Constitution
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writ of certiorari
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grants review of case
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rule of 4
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if 4 justices feel a case has merit then it will be reviewed
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amici curiae
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involved with writ of certiorari...people who have interest in case but aren't directly involved in the case
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majority opinion
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at least 5 justices
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concurring opinion
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agrees with majority but for different reasons and writes them down
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dissenting opinion
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law out opinion for why disagree with majority
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plurality opinion
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very bad. no majority opinion on reasoning but agree with outcome
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per curiam opinion
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unsigned, justices work on opinion but don't put names on it
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memorandum opinion
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no opinion, just because and don't explain opinions
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uncommon and no definite rulings in opinions
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per curiam and memorandum
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sitting en banc
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all hear arguments
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case goes to what court first?
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district then circuit
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lawsuits
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private person sues private person
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criminal cases
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state vs person
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service
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served notice of being sued and has to answer
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types of service answers:
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admit, deny, no idea
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demurrer
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defendant admits wrong, but no legal grounds for suing
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discovery
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both sides see each others arguments
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JNOV
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judgment notwithstanding the verdict...judge gives totally different answer than the jury
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civil complaint
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lawsuit
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pleading
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plaintiff alleges and asks for remedy
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directed verdict
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judge awards plaintiff because defendant didn't respond
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summary judgment
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ask judge to choose your side if not settled then case goes to trial
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indictment ---> grand jury
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case seen by jury, prosecutor can't be blamed, community's decision
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in loco parentis
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in place of parents
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Tinker is a _____ standard
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reactive
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Barber v. Dearborn
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very similar to Tinker case, boy wore Bush shirt to school, no interference or disruption, passive
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Palmer v. Waxahacie
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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
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Dean v. Utica Community Schools
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only case where school officials lost when trying to apply Hazelwood standard because student did good research, no errors and journalistic standard
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how America was different from England in terms of pre-1st amendment times?
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America had jury nullification: allowed jury to decide what's fair and just
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Articles of Confederation 1781
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central gov't, little power
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Constitution 1787
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central gov't, very powerful, states gave up rights
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Bill of Rights 1791
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limits power of federal gov't on individuals
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Standards of judicial review: strict scrutiny
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compelling interest (for restricting speech) and narrowly tailored (to further the issue)
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Standards of judicial review: intermediate scrutiny
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legitimate/significant interest and narrowly tailored
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Hierarchy of Protected Speech
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1. political and social expression
2. commercial and nonobscene sexual material 3. incitement, fighting words, false ads, fraud, defamation, obscenity, child porn, true threats |
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type of scrutiny where gov't has a better chance of winning
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immediate scrutiny...very hard to win strict scrutiny
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judicial review
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review of gov't action
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T/F no plaintiff in criminal case
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true...prosecutor
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Schneck v US
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-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 |
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Whitney v. California
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-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 |
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Dennis v US
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-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 |
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Brandenburg v Ohio
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-modern version of Brandenburg clear and present danger test
-KKK moron gives speech -conviction reversed |
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lies fall in this tier of hierarchy of protection
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first
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Near v Minnesota
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prior restraints presumed unconstitutional...except under these circumstances: emergency (national security), obscene,, protect community from incitement
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NYT v US
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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
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US v Progressive
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taught people how to build hydrogen bombs, ex of how speech can be enjoined
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prior restraints upheld in these cases:
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US v Bell and US v Progressive
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US v Bell
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unprotected speech since false advertising so prior restraints upheld
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strict scrutiny
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applies to top level of speech hierarchy
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intermediate scrutiny
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applies to 2nd level speech: commercial
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Content-Based
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language of the law directly affects speech, language is directed at a certain type of speech...strict scrutiny
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Content-Neutral
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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
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most protective of speech school case
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Tinker
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more restrictive on speech, judges look to defer judgment to school officials
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Hazelwood
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Tinker v Des Moines School District
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-passive expression
-political message -no interference or disruption -no captive audience -arm bands |
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Hazelwood School District v Kuhlmeier
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-school sponsored newspaper
-social expression -teen pregnancy and divorce -principal censored articles to protect privacy and maintain editorial balance |
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Bethel School District v Fraser
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-student's innuendo speech at school assembly
-active expression -lewd, profane, vulgar language -captive audience |
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Morse v Frederick
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-Bong hits for Jesus
-advocacy of illegal drug use -school sponsored event with supervisors -narrow ruling -doesn't overrule previous cases |
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what standard of school speech should you try to frame your case as?
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Tinker so Tinker standard would apply
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standard used with student off campus speech:
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reasonably foreseeable risk of substantial disruption standard
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Kincaid v Gibson
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-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 |
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Hosty v Carter
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-wrote harsh article in school-sponsored newspaper
-Hazelwood decision depended on if paper was considered public or nonpublic forum |
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what circuit gives college students more rights?
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6th
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hate speech
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words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender or sexual orientation
-protected by 1st amend |
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fighting words
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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 |
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true threats of violence
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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 |
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Chaplinsky v New Hampshire
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Jehovah's witness calls officer rude names
not protected by first amend creates Fighting Words Doctrine |
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Fighting Words Doctrine factors
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-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 |
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obscenity, indecency and pornography...
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are not created equal under the law
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obscenity
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material only becomes obscene when it satisfies the Miller Test.
-term covers sexually explicit material -legal conclusion -not protected by first amend |
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indecency:
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sexually explicit and graphic material that's not quite obscene
-protected by first amendment -can be regulated in radio and TV by FCC |
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pornography:
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no legal definition or significance
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Comstock Act of 1873
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no definition of obscenity, discriminatory
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Hicklin Rule
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material is obscene if it can corrupt minds (kids)
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Roth v US 1957
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USSC abandons Hicklin Rule and USSC starts 9-year definition of obscenity
-Roth-Memoirs test |
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Roth-Memoirs Test
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-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 |
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Miller v California 1973
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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 |
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Miller Test: Average Person and Prurient Interest
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-trier of fact (judge/jury) determines prong/element 1 of miller test
-standard of community -children not in community |
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prurient interest
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morbid, shameful or lascivious interest in nudity, sex or excretion
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Miller Test: Community Standards
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trier of facts (judge/ jury) determines community standards
-local standards -venue shopping -evidence of community standards not needed |
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Miller Test: Serious Value
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-judge plays role in determination but jurors are supposed to make determination
-based on reasonable person -expert testimony used -designed to mitigate community censorship |
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Variable Obscenity Statutes:
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material could otherwise be legally distributed to adults and banned from people under 18 so states can have different standards for kids and adults
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child porn
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not protected by first amend
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sexting statutes
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take from felony to misdemeanor
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local laws affecting sexually oriented businesses (SOBs)
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zoing regulations and expressive conduct regulation
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zoning laws
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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)
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requirements of zoning laws
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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 |
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Expressive Conduct Regulations
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designed to dictate appropriate boundaries of nudity inside SOBs
-permissable because only minimally interfere with overall expression -intermediate scrutiny |
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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 |
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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 |
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Children's Internet Protection Act 2001
US v American Library Assoc 2003 |
constitutional
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difference between Roth and Miller test
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value standard, more serious in Miller
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