Comm Law Terms

underinclusive

A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment.

originalist

A Supreme Court justice who interprets the Constitution in line with the meaning or intent of the framers at the time of enactment.

hate speech

A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like.

subpoena

A command for someone to appear or testify in court or to turn over evidence, such as notes or recordings with penalties for noncompliance

Injunction

A court order prohibiting a person or organization from doing some specified act

Defamation

A false statement that harms someones reputation and subjects them to ridicule.

time, place, and manner restrictions

A first amendment concept that laws regulating the conditions of speech are more acceptable the those regulating content, also the laws that regulate these conditions

writ of certiorari

A petition for review by the Supreme Court of the US; certiorari means "to be informed of"

Federalism

A principle according to which the states are related to but are independent of each other and are related to yet independent of the federal government.

amicus brief

A submission to the court from an amicus curiae, or "friend of the court," an interested individual or organization who is not party in the case.

Symbolic expression

Action that warrants some First Amendment protection because its primary purpose is to express ideas.

important government interest

An interest of the government that is substantial or significant (i.e., more than merely convenient or reasonable) but not compelling.

concurring opinion

An opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning.

seditious libel

Communication meant to incite people to change the government; criticism of the government

strict construction

Courts' narrow interpretation and application of a law based on the literal meaning of its language. Especially applied in interpreting the Constitution.

Clear and Present Danger

Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm.

Permptory Challenges

During jury selection, a challenge in which an attorney rejects a juror without showing a reason. Attorneys have the right to eliminate a limited number of jurors through peremptory challenges.

Due Process

Fair legal proceedings by the Fifth and 14th Amendments to the U.S. Constitution.

Sedition act of 1798

Federal legislation under which anyone "opposing or resisting any law of the United States, or any act of the President of the United States" could be imprisoned for up to two years. The act also made it illegal to "write, print, utter, or publish" anything that criticized the president or Congress. The act ultimately was seen as a direct violation of the First Amendment and expired in 1801.

viewpoint-based discrimination

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally.

textualist

Judges - in particular, Supreme Court justices - who rely exclusively on a careful reading of legal texts to determine the meaning of the law. ​

Traditional Public Forum

Lands designed for public use and historically used for public gathering, discussion and association (e.g., public streets, sidewalks and parks). Free speech is protected in these areas.

equity law

Law created by judges to apply general principles of ethics and fairness, rather than specific legal rules, to determine the proper remedy for legal harm.

laws of general application

Laws such as tax and equal employment laws that fall within the express power of government. Laws of general application are generally reviewed under minimum scrutiny.

en banc

Literally "on the bench" but now meaning "in full court" The judges of circuit Court of appeals will sit en banc to decide important or controversial cases.

De novo

Literally, "new" or "over again." On appeal, the court may review the facts de novo rather than simply reviewing the legal posture and process of the case.

voir dire

Literally, "to speak the truth"; the questioning of prospective jurors to assess their suitability.

ad hoc balancing

Making decisions according to the specific facts of the case under review rather than more general principles

Discretion

The authority to determine the proper outcome

chilling effect

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right.

stare decisis

The doctrine that courts follow precedent the basis of common law, it literally means to stand by the previous decision.

original jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.

venue

The locality of a lawsuit and of the court hearing the suit. Thus, a change of venue means a relocation of a trial.

CH 2 Original Intent

The perceived intent of the framers of the First Amendment that guides some contemporary First Amendment application and interpretation.

facial meaning

The plain and straightforward meaning.

Judicial Review

The power of the courts to determine the meaning of the constitution and decide whether laws violate the constitution.

discovery

The pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered.

burden of proof

The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. In libel law, for example, the plaintiff has the burden of proof.

probable cause

The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.

fighting words

Words not protected by the First Amendment because they cause immediate harm or illegal acts.

per curiam opinion

a brief, unsigned court opinion

Strict Scrutiny

a court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance its compelling interest

Compelling interest

a government interest of the highest order, an interest the government is required to protect

Grand jury

a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt

facial challenge

a legal argument that the challenged law or policy is unconstitutional in every application; there are no situations in which the law can be interpreted to be constitutional

as applied

a legal phrase referring to interpretation of a statute on the basis of actual effects on the parties in the present case

Forum Shopping

a practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff's favor

overbroad

a principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary

demurrer

a request that a court dismiss a case on the grounds that although the claims are true they are insufficient to warrant a judgment against the defendant

motion to dismiss

a request that the court terminate a case without permitting it to go further

dissenting opinion

a separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority's reasoning or the legal basis of the decision

Intermediate Scrutiny

a standard applied by the courts to review laws that implicate core constitutional values; also called heightened review

Rational Review

a standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review.

libel per se

a statement whose injurious nature is apparent and requires no further proof

Libel per quod

a statement whose injurious nature requires proof

O'Brian Test

a three-part test used to determine whether a content-neutral law is constitutional

Prior restraint

action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication

memorandum order

an order announcing the vote of the Supreme Court without providing an opinion

supremacy

established that federal law takes precedence over or supersedes state laws

black letter law

formally enacted, written law that is available in legal reporters or other documents

Ch 3 USA patriot act

gives law enforcement agencies greater authority to combat terrorism

nonpublic forum

government held property that is not available for public speech and assembly purposes

Public forum

government property held for use by the public, usually for purposes of exercising rights of speech and assembly

Designated public forum

government spaces or buildings that are available for public use (within limits)

Common Law

judge made law comprised of the principles and traditions established through court rulings; precedent based laws

content based laws

laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech

Content-neutral laws

laws enacted to advance a govt purpose unrelated to the content of speech.

vague law

laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish

content nuetral laws

laws that incidentally and unintentionally affect speech as they advance other important government interests

Strict Liability

liability without fault; liability for any and all harms, foreseeable or unforseen, which result from a product or an action.

venire

literally "to come" or "to appear"; the term used for the location from which a court draws its pool of potential jurors, who must then appear in court for voir dire; a change of venire means a change of the location from which potential jurors are drawn.

ch 4 damages

monetary compensation that may be recovered in court by any person who has suffered loss or injury. damages may be compensatory for actual loss or punitive as punishment for outrageous conduct.

executive orders

orders from a government executive, such as the president, a governor or a mayor, that have the force of law

doctrines

principles or theories of law that shape judicial decision making

tort

private or civil wrong for which the law grants a remedy

political questions

questions not subject to judicial review because they fall into areas properly handled by another branch of government

true threat

speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

moot

term used to describe a case in which the issues presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is susceptible to repetition but evades review

incorporation doctrine

the 14th amendment concept that most of the bill of rights applies equally to the states

holding

the decision or ruling of a court

negligence

the failure to exercise reasonable or ordinary care.

Judisdiction

the geographic or topical area of responsibility and authority of a court

deference

the judicial practice of interpreting statues and rules by relying heavily on judgements and intentions of the administrative experts and legislative agencies that enact the laws

proximate cause

the legal determination of whether it is reasonable to conclude the defendant's actions led to the plaintiff's injury

Administrative Law

the orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties

precedent

the outcome of a previous case that establishes a rule of law that courts within the same jurisdiction rely on to determine cases with similar issues.

communications decency act

the part of 1996 telecommunications act that largely attempted to regulate internet content.

appellee

the party against whom an appeal is made.

Defendant

the party being accused of violating the law (the party being sued"

Appellant

the party making the appeal; also called the petitioner

Plaintiff

the party who is suing

categorical balancing

the practice of deciding cases by weighing different broad categories, such as political speech, against other categories of interests, such as privacy, to create general rules that may be applied in later cases with similar facts

statutory construction

the process by which courts determine the proper meaning and application of statutes

Summary Judgement

the resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgement

constitutional Law

the set of laws that establish the nature, functions and limits of government

Rule of Law

the standards of a society that guide the proper and consistent creation and application of the Law

Affirm

to ratify, uphold or approve a lower court ruling

Overrule

to reverse the ruling of a lower court

Remand

to send a case back to a lower court to be tried again

Statutory Law

written law formally enacted by city, county, state and federal legislative bodies