Pr Law And Ethics Exam #1

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categories of law in order of heirarchy

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constitutional law, statutory law, administrative law, case law

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constitutional law

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the constitution and the interpretation of it by the courts. A state's constitution cannot restrict freedoms outlined by the bill of rights, but may grant greater freedoms.
Ex) freedom of speech

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statutory law

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the actual language of the legislative enactments and any official interpretations by the courts. Statues begin as bills that are deliberated by legislators and then passed and signed into law or may be vetoed by chief executives (state governors or the president).
Ex) copyright laws

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school house rock

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administrative law

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law passed by administrative agencies who are given power by the state or federal legislative bodies to govern certain fields.
Ex) FCC regulates broadcasting

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case law

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the binding principles and rules that originate from case by case judicial decisions.

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doctrine of precedent

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courts are bound by their prior decisions or by the decisions of their superior courts.

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criminal law vs civil law

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criminal law = when the government prosecutes accused individuals on behalf of the public. The purpose is to impose punishment (usually a fine or jail time) rather than compensation.
civil law = private law under which harmed individuals, companies, or governments can sue other individuals, companies or governments in order to obtain some kind of legal remedy (usually $$)

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contracts vs torts

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contract = legally binding mutual promises to perform in a certain way under certain circumstances
tort = a wrong, other than a brief of contract, in which the law gives the injured party some kind of remedy. The rights protected by torts are not from agreements, but basic human relation right (like the right to protection of bodily harm)

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justiciable controversy

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the justice system is empowered to resolve specific legal disputes between people or entities whose legal rights are in jeopardy, who have formally asked the court by filing a lawsuit to intervene.

basically where it would be an advisory opinion because there's no controversy yet. so someone wants to know what would happen if X.

Ex) some govt agency didn't want to hire people who were older than 60 and they want to know if that would be constitutional

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jurisdiction

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the authority to make and administer the law. It implies rights, powers, and limits. A government may have the power to make and enforce its laws through its legislature, administrative agencies, and courts, but it can legally extend its power only to the limits of its jurisdiction.

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personal jurisdiction

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the power of a government to enforce its laws on a particular person or organization. This is largely a territorial concept.

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subject matter jurisdiction

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the subject or type of dispute over which legislatures and court systems have legal authority. Subject matter jurisdiction marks an important distinction between powers assigned to the federal government and powers reserved to the states collectively.

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federal jurisdiction

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the federal government has limited, specific powers outlined by the constitution. In terms of communications law, federal jurisdiction permits lawmaking in areas like broadcasting through congress and the FCC, copyrights and trademarks through Congress and the copyright and patent offices, and commercial advertising through Congress and the FTC.

ii. Federal Courts are authorized to resolve legal disputes that arise under laws passed by Congress and federal agencies, or under the US Constitution. Federal court jurisdiction only means exclusive jurisdiction when the federal court has declared it so.

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state jurisdiction

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each state has its own court system consisting of trial and appellate courts. It can be very difficult to determine the correct court system for a legal dispute, and this is up to the aggrieved person to select a court of proper jurisdiction when initiating a lawsuit.

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injunction

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the most frequently used court order, and orders that a person not do something or stop doing something. When payment of damages is not sufficient, a plaintiff may want the court to order the defendant to do something or refrain from doing something.

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reasons for freedom of speech

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1. social reasons (those that presuppose some particular benefit to society): discovery of truth, participation in democracy, check on government, social stability
2. Individualistic reasons: freedom of speech is a natural right of individual human beings and is fundamentally good in itself.

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doctrine of incorporation

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other provisions of the Bill of Rights apply to the states via the 14th amendment.

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expression, conduct, and expressive conduct

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as culture and technology have evolved, the Supreme Court has interpreted the word “speech” to mean all forms of expression that are designed to communicate ideas. There is a difference between expression and conduct/action. Conduct is not covered under the 1st amendment. Expressive conduct is conduct performed in a way intended to convey a particular message to others and is protected by the 1st amendment.

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prior restraint and the 1st amendment

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the FA protects against prior restraints upon the content of speech found in censorship schemes and court injunctions prohibiting publication. It is the prevention of expression done prior to publication or distribution.

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types of 1st amendment prior restraint

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1. Licensing: prior restraint can take the form of licensing schemes for communicators. Many license requirements to speak or circulate have been deemed forms of prior restraint on the content of expression and therefore unconstitutional by the courts.
2. Informal coercion: pressuring communicators to sign oaths or threatening to prosecute or to publicly chastise.

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punishment after the fact

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generally considered a more acceptable way to deter irresponsible speech, because it allows the communicator to make reasoned decisions about whether something can and should be expressed, and then pay the penalty if the decision was improper. However, the Supreme Court has found there isn’t that much of a difference between this and prior restraint. Subsequent sanctions against speech usually come in the following forms:
i. Contempt citations issued by courts, under which communicators may face fines or jail time.
ii. Enforcement of criminal statutes and regulations, which may lead to fines, loss of privileges, or prison.
iii. Private lawsuits for torts or breach of contract.

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time, place, and manner restrictions

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Intended to ensure that government controls on expression are done for reasons related to its content. TPM restrictions may result in significant inconvenience or added expense for communicators, but the restrictions are not intended to limit or control any particular sort of content. To qualify as a TPM restriction it must be content neutral. The purpose of the restriction may not be to curb certain messages on the basis of their content. If the action is actually a content restriction in disguise, the scope of the FA protection against the restriction is much greater, and the government action is more likely to be ruled unconstitutional.

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resolving first amendment conflicts: unprotected speech

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the FA does not protect certain categories of expression. Some examples of unprotected speech include obscenity, false or misleading commercial advertisements, perjury, libel, so-called fighting words, and incitement to violence.

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resolving first amendment conflicts: minimum scrutiny

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The rational basis standard represents the minimum level of justification that all government restrictions on freedom must meet in order to comply with the due process clauses of the 5th and 14th Amendments.

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resolving first amendment conflicts: overbreadth

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Doctrine of overbreadth: legislation that punishes protected speech as well as the targeted, unprotected expression is unconstitutional. Restrictions on speech will be deemed overboard if they encompass any significant amount of protected speech along with the expression that may be regulated legitimately.

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resolving first amendment conflicts: vagueness

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Void-for-vagueness doctrine: statues and regulations that restrict speech, if they do so in terms too vague to provide clear guidance, may be struck down as unconstitutionally vague because they fail to draw a clear distinction between speech that is prohibited and that which is not.

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resolving first amendment conflicts: balancing approach

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Preferred position balancing: the general approach to interpreting the scope of the FA protections. The inquiry begins with speech occupying a preferred position, and the government must overcome that position by demonstrating sufficent reasoning why the speech in a given situation should not be constitutionally protected.

ii. Standard of judicial review: the specific balancing standard that is determined by the nature of speech or the circumstances in which the speech appeared. Assuming the speech does not fall into one of the categories of unprotected speech, the government must show at least a “substantial” interest and usually a “compelling” interest in order to override the FA. I.e. government restrictions on protected speech must undergo either strict or intermediate scrutiny.

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resolving first amendment conflicts: strict scrutiny

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government interference is only allowed if the government proves the gravest of justifications.

Compelling interest: a justification of great magnitude. It is the strictest of standards, and the government often cannot meet it.

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resolving first amendment conflicts: intermediate scrutiny

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1. Includes TPM
2. Substantial interest: when this level of scrutiny applies, the speech has a markedly lower degree of protection than in strict scrutiny situations. This is used by showing that a restraint on speech furthers a substantial government interest and is no broader than necessary to advance that interest.

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resolving first amendment conflicts: forum theory

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1. The Forum Theory: In general, government has the power to exercise control over the use of its own property. But if a public forum has been created, government attempts to control the content of speech in that forum are presumptively invalid prior restraints. A public forum is a place either specifically designed or traditionally used for the exercise of free speech by the public. So, once government installs a soapbox for the public, it cannot restrict the ideas expressed thereon.
2. The Student Press: the forum theory has played an important role in free speech disputes involving student media at public high schools and colleges. Courts have typically ruled student publications to be forums.

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6 concepts that should be included when defining public relations and how each is related to public relations

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1. deliberate: things done intentionally, with purpose
2. planned: pr is structured to achieve goals
3. performance: it is important to cover all bases
4. public interest: pr should be done in the interest of the public. This is important because good pr means people have faith in you and like you.
5. 2 way communication: pr puts out information and receives feedback and does research to find out how they're doing. You want to make sure the public wants to receive your info/product
6. management function: make sure that management/CEOs hear you, that you have a voice.

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stages of the cyclical process of pr

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research analysis > policy formation > programming > communication > feedback > program assessment and adjustment

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S.E.C.

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the Securities and Exchange Commission is a federal agency that oversees the exchange of securities to protect investors

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F.T.C.

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the Federal Trade Commission is a federal agency that maintains fair and free competition; enforces federal antitrust laws; educates the public about identity theft

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F.C.C.

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the Federal Communications Commission is a federal agency that regulates interstate and international communications by radio and television and wire and cable and satellite

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what does Warren Buffett's license plate say?

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"thrifty"

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inner vs outer scorecard

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inner scorecard: how you feel about yourself
outer scorecard: how others feel about you

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Buffett said that his company could afford to lose money but not...

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reputation

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ADR

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alternative dispute resolution: speedy and just means of resolving a dispute at a reasonable cost to both the parties and to the taxpayers.

ADR is any method of resolving any dispute that does not require the ultimate decision to be made formally by a judge or jury. The objective is to keep disputes out of the court system in an effort to cut down the cost to businesses.

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ADR: negotiations

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-the simplest form of ADR
-adversaries meet to discuss their differences and work toward resolution.

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ADR: conciliation

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-a third party successfully brings together the adversaries so that they can begin negotiations.
-the conciliator's role is to get the parties together and limit pre-negotiation counterproductive speech/attitudes
-serves to nudge the disputing parties toward resolution

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ADR: minitrials

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-good for cases where there are no constitutional or complex law issues.
-the disputing parties select an adviser who is an expert in the subject matter. based on guidelines established by both parties, the adviser oversees a basic discovery process where the parties exchange info.
-the goal is to resolve issues of fact and for the parties to settle the dispute themselves, with some input from their adviser.

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ADR: private judge

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-the parties hire a private judge, called a referee, and have their case tried in a private court.
-the referee has the full powers of a judge with the exception of the ability to find someone in contempt of court.
-the advantage of private judge is that your case is not at the mercy of the court's calendar.

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ADR: fact-finding

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-best for disputes with complex issues.
-the fact-finder is an expert in the subject matter who conducts an in-depth investigation into the specific issues in the case.
-the point is to use the fact-finder instead of a trial, or with another form of ADR.
-the basis for resolution is that settlement is best facilitated when the parties are better informed.

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ADR: baseball arbitration

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-the dispute is usually over money
-the 2 parties must have agreed that a sum of money is owed to one of the parties. After an evidentiary hearing, each side submits a figure to an independent 3rd party who may only choose one of the 2 figures proposed by the 2 parties.

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ADR: partnering

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-more of a pre-dispute deterrant
-the point is to begin a business venture with solid channels of communication and a more clear understanding of what is expected from each of the parties to the object.
-helps to alleviate disputes, and if one does occur, to establish channels and the necessary levels of communication for its quick resolution.

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ADR: facilitated negotiation

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-an independent and objective 3rd party is introduced to the negotiation sessions to assist in the steps toward settlement. Although the facilitator takes an active role, he does not meet with the parties separately and never renders an opinion or judgment. He only works to assist the parties towards more effective communication.
-the goal of the facilitator during the negotiation is to cultivate communication rather than settlement.

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ADR: mediation

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-begins with all parties signing a confidentiality agreement.
-at the proceeding, the mediator initially meets with both parties to allow them to thoroughly state their positions in the presence of the other. Each gives a brief summary of facts, positions taken, and in some cases, a settlement or demand offer. the mediator gives a brief oral recap to be sure he understands, and then repeats this with the other party. Then, the parties separate and the mediator begins meeting in short, private session with each group beginning with the plaintiff. Here the parties are more likely to reveal settlement figure "ceilings" and "floors" so the mediator can help steer them toward a settlement figure.
-the entire process is voluntary and thus lends itself better to mutually agreeable settlements.
-a dispute may still go to trial.

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arbitration

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-takes mediation and puts the decision, or reward, in the hands of a third party.
-similar to a trial
-the arbitrator has final say and usually no right of appeal exists except when arbitration is court ordered.

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med/arb

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parties enter agreements were they first mediate a dispute, and if the mediation fails to reach a resolution, they submit the dispute to arbitration.