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89 Cards in this Set
- Front
- Back
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Sources of Law
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-constitutional law (by constitution)
-statutory law (passed by legislators) -administrative law (by admin agencies like FCC) -executive actions (by president) -common law (court's ruling) -law of equity (no law; freeze; decide on a new law) |
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Most important SMAD amendment
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1st amendment (freedom of speech, religion, press, assembly and petition)
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constitutional law
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-"supreme law of the land" (rights you are born with)
-USSC has last word on meaning of constitution |
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investiture
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official swearing in of a justice
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USSC
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-justices: 9
-chief justice: John Roberts -last appointed: Elena Keagan |
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statutory law
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-found in Code Books
-deal with problems affecting society or large groups |
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Where to find laws
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-Federal law: US Code
-Virginia law: Code of VA |
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administrative law
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-rules and decision made by administrative agencies (FCC, SEC, FTC, etc)
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executive actions
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-made by president
-congress can vote on laws and president has veto power |
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common law/"courts ruling"
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-applies to everyone equally
-stare decisis Options: *court can accept precedent and rule same way *court can modify precedent *court can distinguish precedent** *court can overrule precedent *court can ignore precedent **ex. Daily News Record vs Jane Doe (one is involuntary, i.e. illness, while one is voluntary; i.e. sex=baby) |
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stare decisis
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-to stand by past decisions
-consistent in terms of ruling ex. student and professor DUI in Hburg |
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law of equity
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-temporary restraining order= law of equity
-normally a keep calm situation while dissolving a case ex. husband/wife sperm case (freeze everything, talk to each other, hoping to reach an agreement) |
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court citation
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ex. Adderly v. Smith 385 U.S. 39 (1966)
-Adderly= plantiff (individual initiating lawsuit) -Smith= defendant -365=volume where decision can be found -U.S.= source where decision can be found -39= page where decision can be found -1966= year case was decided |
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civil citation
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-involves two private parties
-burden of preponderance (if it is 51% likely that the Defendant committed the alleged negligent act or created the breach of contract they are liable) ex. Smith v. Jones -Smith= plaintiff/instigator -Jones= defendant/responder |
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criminal citation
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-statatory law (breaking some type of statute)
-burden of beyond reasonable doubt (proof having been met if there is no plausible reason to believe otherwise) ex. Virginia v. Adderly -Adderly= defendant -CommofVA= initiaring criminal litigation |
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crimes against the person
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murder/manslaughter
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crimes against the habitation
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burglary/arson
ex. go into open apartment while in class and take TV **can be charged with both theft and burglary |
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crimes against the property
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thefts/larceny
-thefts= more major, more money -larceny= less major, less than $1,000 in VA ex. depriving you of property outside your residence (someones takes book-bag in carrier or ECL) **can be charged with both theft and burglary |
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crimes against morality & decency
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vagrancy (being a prostitute, being a drunkard, being a gambler, loitering, etc.)
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crimes against the public peace
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criminal libel (written or spoken communication that harms a person's reputation)
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crimes against sovereignty, justice and authority
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tax evasion
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crimes against public safety, health and comfort
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nuisance laws (urinating in public, walking with an open container, etc.)
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Court opinions
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-Majority: 9-0 vote or majority of SC
-Concurring: voted with majority but has a different opinion -Dissenting: lost; defending decision -Plurality: no clear majority opinion -Per curium: decision is based on court briefs submitted and is usually unsigned -Memorandum: announcement of the vote; no opinion |
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Amendments Important for Mass Comm Law
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1st: individual rights protected against the U.S. gov
5th: protection against prior restraint, national security and grand jury (prior restraint: gov monitors and censors information from media--> ex. president Alger DUI and the Breeze) 6th: right to a speedy public trial (protected until proven guilty) 14th: no denial of life, liberty or property without due process of law (allowed to have an appeal) |
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Historical Influences, Legal
William Blackstone, England |
-judge
-wrote down his decisions (stare decisis) -was an advocate against prior restraint |
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Historical Influences, Legal
John Peter Zenger, 1733 |
-printer
-printed article against Governor who is appointed by God -appointed Hamilton as attorney -Hamilton argued to ignore the law (was article truthful; truth should serve as a defense) -Zender didn't write letter, just published it **NY passed the truth and libel bill as a result |
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Historical Influences, Legal
Croswell's Trial, 1800s |
-Croswell v NY
-same facts as Zenger case -Hamilton argued same 2 points (was article truthful; truth should serve as a defense) -Appellate court tied -Croswell walked out free **NY passed the truth and libel bill as a result |
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Historical Influences, Philosophical
Milton's "Aeropagetica" |
-said that we need to allow the truth to grapple with false statements (if its really the truth, its going to stand up to false statements)
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Historical Influences, Philosophical
Mill's "On Liberty" |
-said that truth has no chance in a society that silences communication because ultimately we may be silencing the truth, i.e. a lie
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Historical Influences, Phil.
Lock's "Self-Righting Process" |
-same beliefs as Milton
-we need strong and heathy debate (when in an argument, we should sit down and talk it out and figure out what is the truth for us) |
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Historical Influences, Historical
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-Stamp Act
-Declaration of Independence -Articles of Confederation -Constitutional Convention -Madison v. Hamilton (Madison for strong fed government and guarantee of rights; Hamilton for strong state government and don't need Bill of Rights) ** still have this argument today -Bill of Rights (first 10 amend.) |
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Historical Influences
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-Constitutional ratified: 1790
-Alien and Sedition Act: 1798 (overturned 1803) *alien immigration and sedition during French Rev. *sedition: criticizing the form of gov. ("Democracy sucks!") *seditious libel: nasty comments directed toward someone in government ("Obama sucks!") -14th (due process) and 15th (voter rights) -Gitlow v. NY 1925 (another slide) |
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Gitlow v. NY (1925)
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-Gitlow wrote "Left Wing Manifesto" which called for economic revoltion in U.S.
-NY has syndicalism act (makes anti government preaching illegal; i.e. conspiring) -Gitlow charged with syndicalism -conviction upheld by SC--> states all citizens of US protected and guaranteed rights of Constitution via 14th amend. due process clause -Gitlow rotted in prison, we all benefited |
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syndicalism
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makes anti government preaching/conspiring illegal
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1st A Interpretation Continuum
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More Freedom (Absolutist) --> Clear and Present Danger
--> Less Freedom (Evil Tendency) |
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1st A Interpretation Continuum
Absolutist Theory |
-Hugo Black: ex-justice of SC
-Alexander Miekeljon: professor; said there is political speech(protected absolutely) and everything else -absolutists believe first amendment was written that congress shall make no law; protect everything |
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1st A Interpretation Continuum
Preferred Position (when rights are in conflict, preferencial treatment will be given to those protected by the 1st A) |
-Kovacs v. Cooper
-Kovacs drove up streets in truck sending out political message -Cooper said Kovac invaded his peace and quiet -court ruled Kovac had right under 1st A (no solitude listed in Constitution) |
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1st A Interpretation Continuum
Two-Tiered Position (there are words that are protected and some that are not; do some go in both?) |
-Chaplinsky v. N.H
-Chaplinsky was giving a speech in NH that was slamming everyone -crowd became restless -Chaplinsky called a police officer "a god damn fascist" -was charged with fighting words and breach of peace -fighting words=motivate individuals to react physically -fighting words not protected by 1st A -conviction upheld (chaplinsky punished) |
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1st A Interpretation Continuum
Clear and Present Danger Theory (clear danger, danger is present, there is a substantive evil that may result) |
-Schenck v US, 1919
-Schenck is a socialist, violates the Espionage Act of 1917 by mailing flyers against draft to potential frafties -SC (all 9) rules Schenck is guilty -Oliver Wendall Holms wrote opinion and indicated the clear and present danger doctrine |
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1st A Interpretation Continuum
Clear and Present Danger Theory (clear danger, danger is present, there is a substantive evil that may result) |
-Abrams v US, 1919
-Soviet students in US protest US involvement in Russia with flyers -convicted of violating 1918 amendment to the Espionage Act -SC upheld 7-2 for Clear and Present danger doctrine -**Holms and Brandize write dissenting opinions saying they are misinterpreting the doctrine. -"Marketplace Theroy": allow different ideas to occur and the truth will come about |
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1st A Interpretation Continuum
Clear and Present Danger Theory (clear danger, danger is present, there is a substantive evil that may result) |
-Whitney v California, 1950
-Whitney attended communist labor party which called for an economic revolution -prosecuted under the state anarchy statute -conviction upheld -SC opinion: need to protect speakers; moving towards true interpretation of clear and present danger doctrine |
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1st A Interpretation Continuum
Clear and Present Danger Theory (clear danger, danger is present, there is a substantive evil that may result) |
-Brandenburg v Ohio, 1960
-Brandenburg was a clan member who address a group in Cinn Ohio -talking about threatening congress, lite cross infront of TV film crew -prosecuted under syndicalism act of Ohio -SC reverses conviction and uses the final interpretation of clear and present danger doctrine that we use today --> "it is imminent lawless action that is likely to succeed" -safety valve issue (free speech--> safety valve to release tension) i.e. better for people to speak out and not let it build and build and fester |
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1st A Interpretation Continuum
Balancing (how we weigh them will tip in terms of favor of group) Ad Hoc (have one charge and your done, just look at one case--> does not apply to other cases) Categorical/Definitional (established rule of in future how we are weighing rights longer --> stare decisis) |
-American Com Asso v Douds
-Douds wants to deliver speech in bilding owned by ACA -ACA agreed and wanted Douds to sign a loyalty oath, Douds refused -1st A rights -Federal court of appeals rules for ACA saying that a private company can establish rules |
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1st A Interpretation Continuum
Bad Tendency Theory (if advocating something that could effect us, we can repress your free speech) |
-Gitlow v NY
--Gitlow wrote "Left Wing Manifesto" which called for economic revoltion in U.S. -NY has syndicalism act (makes anti government preaching illegal; i.e. conspiring) -Gitlow charged with syndicalism -conviction upheld by SC--> states all citizens of US protected and guaranteed rights of Constitution via 14th amend. due process clause -Gitlow rotted in prison, we all benefited **got 1st amendment rights guaranteed to all citizens due to 14th A (extended all constitutional rights to everyone under due process) |
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1st A Interpretation Continuum
Evil Tendency (think outcome is horrendous -->immediate arrest) |
-Dennis v US, 1952
-Dennis= communist -prosecuted under the Smith Act (can't advocate fascism) demonstrates ability for individuals to find a law, guilty under law that didn't mean to hurt communism -'evil nature of communism, discounting it to beat capitalism merits repression (evil is bad) |
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1st A Interpretation Continuum
Evil Tendency (think outcome is horrendous -->immediate arrest) |
-Yates v US, 1957
-Yates=communist party (identical to Dennis) -prosecuted under Smith Act by lower courts -SC reversed Yates conviction because of two ways of advocacy: *abstract doctrine: discussion of what it would be like to be communism; suggests *action: performing an action -found advocacy of abstract doctrine to be protected by 1st A while action is not |
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Prior restraint
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-stopping the flow of information
-Collateral Bar Rule: a party against whom an injunction is issued must obey that order until dissolved or reversed on appeal |
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*** Near v Minnesota
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-Jay Near published a racist paper, Saturday Press
-claimed jews were in charge of organized crime in city -Near declared a nuisance and injunction issued prohibiting future "scandalous matter" Importance: SC ruled injunction was unconstitutional because it constitutes a prior restraint thus declaring all prior restraints as unconstitutional |
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Grosjean v American Press
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-Governor Huey Long convinced LA legislature to pass a license tax that taxed large newspapers (small paper were happy)
Importance: prior restraint because it picks out certain individuals --> unconstitutional |
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New York Times v US
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-NY Times attempted to publish stories on Pentagon during Vietnam War --> "Pentagon Papers"
-Elsberg said the public should have this info; he took documents and xeroxed them Importance: -Attorney General was able to convince judge to shut down our 1st A rights -6 to 3 decision, 9 separate opinions, SC ruled gov. had not met its burden of proof to restrain press -NY Times won |
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Minneapolis Star and Tribune v Minn. Commissioner of Revenue
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-Minnesota decided to tax newspapers that used large amounts of ink (motivate individuals to cut down on ink)
Importance: SC said tax was discriminatory against large papers and prior restraint |
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Arkansas Writer's Project, Inc. v. Ragland
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-Arkansas imposed sales tax on circulation of magazines but not on religious, trade, sports or professional journals
Importance: SC rules tax unconstitional |
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Cox Broadcasting v Cohn
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-TV station reported name of rape victim
-in violation of Georgia statute (no one can print the name of someone who is a victim of rape) -Cohn= victims father suing for revealing her name Importance: SC ruled state does not have right to punish media for information obtained in open court room (reporter reported what was already an open fact) |
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Landmark Communication, Inc. v Virginia
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-Virginia Pilot published name of judge being investigated for misconduct
-this violated state law (if judge is under review, cannot print name) Importance: SC declared VA could not punish media for publishing truthful info |
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Smith v Daily Mail Pub. Co
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-2 newspapers identified 14 yr old who shot and killed classmate
-obtained name by asking witnesses, police and attorney -violated WVA statute (electronic media can broadcast name of juvenile but print media cannot) Importance: prior restraint because treating print and electronic media differently **interest of the highest order: there maybe, in the future, a justifiable reason to restrain the press |
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US v Progressive
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-federal judge stopped Progressive from publishing article describing how to build an H bomb
-violated Atomic Energy Act (cannot put nuclear info together) -Morland chopped up article and sent the pieces to other newspapers so they could all be printed separately *case was dropped |
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Sneep v US
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-Frank Snepp published book, Decent Interval
-violated his CIA contract because he did not submit manuscript to CIA Importance: not a prior restraint because it is a pre-employment contract (you can sign your 1st A rights away) |
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Morison v US
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-Samuel Morison, navy analyst, was convicted of violated Espionage Act
-passed a secret satellite photo of soviet aircraft carrier to magazine Importance: government won- didn't matter if we were at peace, the fact that he is leaking info that is classified is against the law |
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Florida Star v BJF
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-reporter trainee for Florida star acquired BJF's name from sheriffs department
-rape and sexual assault case; published victims name Importance: -SC ruled media can not be punished for lawfully gained information -interest of higher order (we may publish individuals for publishing truthful info) |
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NOT MEDIA RELATED
Texas v Johnson |
-Gregory Johnson burned American flag to protest Reagan administration
-argued he was doing a form of non-verbal communication Importance: SC stated burning flag is protected by Constitution as symbolic form of speech |
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NOT MEDIA RELATED
R.A.V. v City of St Paul |
-Robert Victoria burned cross inside fenced yard of a black couple
-charged under a city ordinance (against hate crimes like race, color, creed, religion or gender) Importance: SC ruled unconstitutional because the ordinance was leaving groups out, i.e disabilities |
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Hazelwood School District v Kuhlmeier
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-principal censored article about teen pregnancy and one about divorce from school newspaper
Importance: SC said hs principals can censor hs newspapers *High schoolers do not have same 1st A rights as college students |
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Miami Herald v Tornillo
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-Miami Herald refused to publish reply to the paper's criticism of Pat Tornillo, candidate for state legislature
Importance: SC held newspapers have stronger 1st A rights than electronic media because print is private ownership while electronic is publically owned |
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Regina v Hicklin
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**Hicklin Test
1) isolated passage effect (piece of work, take a passage or sentence and if you find something obscene then it makes the entire work obscene, regardless of book's size) 2) susceptible person standard (potential who's hands made this material fall into and what effect) |
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Anthony Comstock
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-lobbyist against obscenity and pornography in the mailing system
-Comstock Act: prohibits utilizing federal mail system to use pornography and obscenity |
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Roth v US & Alberts v California
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-Roch mailing obscene material
-Alberts distributing obscene material in store -both violated Comstock Act Importance: take average person (Hicklin takes susceptible) and work must be taken as a whole (Hicklin takes parts) and some can be seen as art and have value for society |
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Miller v California
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-Miller convicted for advertising books and film containing sexually explicit pictures and drawings
Importance: take average person (Roth test); apply contemporary community standards (whatever jury decides is community), take work as a whole and see if it appears to purulent interests ("you're turned on"); see if offensive as defined by state law and the see if the work lacks SLAPS (serious, literary, artistic, political or scientific value) *all parts must be met to be deemed obscene |
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Progression of Obscene Tests
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Hicklin Test --> Roth Test --> Miller Test
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Non obscene controls on sexual expression
Zoning requirements |
-concentration zoning: zone all similar sexually explicit businesses into one location
-dispersal zoning: separate businesses from one another (ex. cannot be within 100ft of another business, school, church, etc) *sperate to restrict growth of sexually explicit material |
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Non obscene controls on sexual expression
Postal regulations |
-Goldwater Amendment
-sign up to not receive ads for explicit material |
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Non obscene controls on sexual expression
Display laws |
-ex. people walking into 7/11 and seeing explicit magazines on shelf
-put magazines behind counter or in brown bags -leave in view but put plastic plate in front of pictures |
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Non obscene controls on sexual expression
Self regulation |
**does not work
-try to not be obvious --> monitor |
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Non obscene controls on sexual expression
Civil Rights approach |
**failed
-based on 1964 Civil Rights Act -anyone who feels discriminated can bring suet to those discriminating -Andrea Dworkin: feminist writer and Catherine MacKinnon: attorney -both women said that the mere existence of sexually explicit material is deeming to all women and violates their civil rights -failed in USSC |
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RICO
(Racketeer Influence and Corrupt Organization Act) |
-established sexually explicit material as legal and pornography as illegal and obscene
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Obscenity studies
1968 President's Commission on Obscenity and Pornography (Lockhart Commission) |
-14 out of 17 said there was no link between consumption of obscene and pornographic material and criminality
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Obscenity studies
1986 Meese Commission |
-Hudson (attorney) went to 4 major metropolitan areas and did interviews on rape, pornography, etc.
-he concluded that there was a link between obscene and pornographic material and criminality |
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U.S. v Ulysses
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-custom officials tried to stop importation of book Ulysses
Importance: ruled to have artistic value which can be weighed against any incidental obscenity |
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Ginsberg v New York
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-Ginsberg convicted for selling "girlie" magazines to minors
-not obscene for adults -NY has bifurcated system: what is acceptable for adults and what is acceptable for minors) Importance: SC said it is good to have this because it protects minors |
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Ginzburg v US
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-selling legal sexually explicit material
-advertisements are deemed obscene Importance: SC rules Ginzburg is guilty of pandering (advertising something as obscene while material is not) *ads prosecuted separately from material |
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New York v Ferber
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-Ferber convicted for selling police films of young boys masturbating
Importance: SC says we need to protect the mental and physical well being of victims **protect children** |
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Memoirs v Massachusetts
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-book, Fanny Hill, ruled obscene
Importance: SC, applying Roth, says the book tells a story (social value) so it is not obscene and is protected |
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Redrup v New York
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-Redrup won
-Redrup prosecuted for distributing "sexy" magazines with pinup pictures but no sexually explicit activity Importance: SC declared obscene material must be specific and narrow in scope |
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Stanley v Georgia
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-Stanley convicted for possession of obscene films found while police searching his house for illegal bookmaking
Importance: SC ruled in favor of Stanley saying private possession of obscene material is permissible |
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Hamling v US
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-Hamling was distributing pornography
-brought in an expert to access him -Miller test (said expert was not part of a community standard so allowed jury who is selected from community to decide) Importance: SC said jurors are better; no more experts **ends expert testimonies in pornography cases |
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Young v American Mini Theaters
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-Mayor of Detroit passed a zoning ordinance that prohibited adult bookstores from located close to other businesses
-American Mini Theater owned a lot of pornography shops and disputed over zoning ordinance Importance: dispersal zoning is constitutional way of controlling obscenity |
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Reno v ACLU (American Civil Liberties Union)
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-ACLU challenged Communication Decency Act (part of Telecommunications Act of 1996) which dealt with the use of the web in terms of pornography
Outcome: SC ruled CDA was unconstitutional Importance: SC ruled communication via internet deserves highest level of 1st A protection |
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Ashcroft v Free Speech Coalition
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-congress adopted amendment that barred the sale and distribution of any images that "appear" to depict minors performing sexual acts
-virtual children Outcome: SC ruled the amendment violated 1st A Importance: SC ruled that the justification for the law was insufficient since congress had failed to produce evidence linking images to actual child abuse |
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Child Pornography Legislation
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-1977: Protection of Children Against Sexual Exploitation
-1990: Child Protection Restoration and Penalties Enhancement Act -1996: Child Pornography Prevention Act -1997: Communication Decency Act (CDA) -1998: Child Online Protection Act -2001: Children's Internet Protection Act 2003: PROTECT Act |
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US v Williams
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- Williams tried to sell undercover cop photos involving 4 yr old girl
-arrested with possession of child pornography, but not the specific photos he advertised Importance: SC ruled the PROTECT Act was constitutional and upheld Williams conviction |
