Exam 1

Traditional Public Forums

Lands designed for public use and historically used for public gathering, discussion and association (ex. 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.

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 government purpose unrelated to the content of speech.

The U.S. Supreme Court established the power of courts to interpret laws in its decision in ______.

Marbury v. Madison

Symbolic Speech

Nonverbal gestures and actions that are meant to communicate a message.

True Threat

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

Categorical Balancing

A judge's or court's practice of deciding cases by weighting different broad categories, such as political speech, against other categories or interests, such as privacy, to create rules that may be applied in later cases with similar facts.

Concurring Opinion

A separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles.

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.

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.

Originalist

Supreme Court justices who interpret the Constitution according to the perceived intent of its framers.

Constitutional Law

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

Heckler's Veto

The suppression of free speech by the government or government actors due to a potential threat from those listening to the speech.

Strict Scrutiny

The 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 a compelling interest.

Overrule

To reverse the ruling of a lower court.

Common Law

Unwritten, judge-made law consisting of rules and principles developed through custom and precedent.

Symbolic speech exists when ______.

actions are closely related to speech and are intended to send a message that others will understand

The Supreme Court has said that, under the First Amendment, political speech is ___________.

at the core of the protected freedom of speech

The Supreme Court generally interprets freedom of speech and freedom of the press by __________________.

combining the two terms into freedom of expression

Laws that protect national security by punishing speakers who incite violent actions are ______.

constitutional if they pass the Brandenburg test

Federal trial courts are called ______________.

district courts

Of the amendments proposed to the U.S. Constitution, ______.

few of them have been approved or ratified

Wars generally, and the current "war on terror" specifically, ______.

increase the willingness of Congress and the Supreme Court to accept laws that punish speech that might undermine national security and international effectiveness

If the First Amendment stands as a nearly complete ban on prior restraints, they nonetheless may be constitutional to prevent _______________________.

obscenity, incitements of violence, interference with ongoing military operations in times of war, and incitements to overthrow the government

Aristotle believed the law should achieve a just balance between __________.

personal and communal interests

Although the Supreme Court's decision in Elonis v. United States did not clearly define them, the Court previously established that true threats may be punishable when ______.

the speaker intends to threaten physical harm or to create pervasive fear in a targeted individual or group

The U.S. Supreme Court has said the First Amendment requires particularly sensitive or vulnerable individuals ______.

to avert their eyes and ignore most offensive expression

The types of speech that threaten national security ______.

vacillate with the political and social climate of the times

In New York Times v. United States, the Supreme Court said that ___________________________.

...

Select the proper legal citation for a case decided on May 22, 2009, by the District of Columbia Circuit of the U.S. Court of Appeals and published starting on page 1,095 of volume 566 of the Third Series of the official Federal Reporter.

566 F.3d 1095 (D.C. Cir. 2009)

TMP Laws

A First Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content: also, the laws that regulate these conditions.

Compelling Interest

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

Writ of Certiorari

A petition for review by the Supreme Court of the United States.

O'Brien Test

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

Precedent

Case judgment that establishes binding authority and guiding principles for cases to follow on closely analogous questions of law within the court's jurisdiction.

Civil Suits

Cases that generally involve two private individuals or organizations that cannot resolve a dispute.

Seditious Libel

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

Executive Orders

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

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.

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.

Designated Public Forums

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

Nonpublic Forums

Government-held property that is not available for public speech and assembly purposes.

Courts of Appeal

Intermediate court that reviews the legal basis for the decisions of lower courts.

Stare Decisis

Literally, "stand by the previous decision".

Ad Hoc Balancing

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

Incorporation Doctrine

The Fourteenth Amendment concept that most of the Bill of Rights applies equally to the states.

Bradenburg Test

The U.S. Supreme Court's ruling that the First Amendment does not protect advocacy intended to incite imminent unlawful action that the audience for the advocacy is likely to commit.

USA Patriot Act

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The act gave law enforcement agencies greater authority to combat terrorism.

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.

Negligence

The failure to exercise reasonable or ordinary care.

Jurisdiction

The geographic or topical area of responsibility and authority or a court.

Affirm

To ratify, uphold or approve a lower court ruling.

Fighting Words

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

Statutory Law

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

Executive orders represent ____________.

a power of the executive branch often targeted by political opponents

In reviewing the constitutionality of laws, the Supreme Court has established that an important government interest is _______________________.

a significant but not compelling interest

Laws of general application ______________________.

apply to the media in the same way as other businesses

Statutes may be enacted by legislatures ____________.

at the federal, state, or local level

To determine the constitutionality of government actions, the Supreme Court employs ____________________.

different tests to respond to the different impacts of government actions on constitutionally protected rights and freedoms

The Supreme Court has found that public schools may regulate student expression when it ______.

disrupts education, is lewd or obscene, is sponsored by the school, or is likely to be understood to represent the school

Laws that make viewpoint-based discriminations are ______.

especially objectionable to the First Amendment

Courts of appeal ______________.

establish precedent

En banc decisions of federal appeals courts _________________.

generally rehear decisions made by a three-member panel of the same court

Instrumentalists argue that the First Amendment advances all of the following goals except ______________.

obscenity

To guide its application of the First Amendment, the Supreme Court relies on ______________________.

original intent, textual interpretation, ad hoc balancing, and categorical balancing

Courts find content-based restrictions of speech constitutional if they _____________________.

pass strict scrutiny

An unsigned opinion of the court is called a(n) __________.

per curiam opinion

Research shows a real but uncertain link between media depictions of violence and violent actions by viewers. As a result, ______.

successful lawsuits for media negligence must show the media were the proximate cause of the harm they could reasonably foresee

The First Amendment prohibits abridgments of the freedom of speech and the press by _____________________.

the federal government only

The U.S. Constitution is _________________.

the supreme law of the United Stated and is difficult to ammend

Underinclusive

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

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.

Symbolic Expression

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

Important Government Interest

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

Public Forums

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

Textualists

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

Proximate Cause

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

Trial Court

The lowest level court in the court system. The court reaches decisions by applying existing law to the specific fact before them, and the only court to use juries.

Administrative Law

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

Defendant

The party accused of violating a law, or the party being sued in a civil lawsuit.

Appellee

The party against whom and appeal is made.

Appellant

The party making the appeal; also called the petitioner.

Plaintiff

The party who files a complaint; the one who sues.

Original Intent

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

Judicial Review

The power of the courts to determine the meaning of the language of the Constitution and to assure the no laws violate constitutional dictates.

The legal citation McConnell v. Federal Election Commission, 540 U.S. 93 (2003), refers to ______.

a Supreme Court decision in an appeal brought by McConnell

Sybil often played the video game "Die Now." One afternoon, Sybil deliberately ran her car into James's car. James sued the makers of "Die Now," claiming the game caused Sybil to become aggressive and cause James's injuries. If a court applies the incitement test to determine if the "Die Now" manufacturer was responsible for James's injury, James must prove the manufacturer ______.

intentionally meant for game players to become aggressive and cause harm

Under strict scrutiny, a law is constitutional only if it __________________.

is narrowly tailored to serve a compelling governmental interest

The First Amendment's protection of disruptive speech ______.

is variable and uncertain

XYZ television network presents a movie showing two 10-year-old boys playing with a gun owned by one of the children's parents. The gun accidentally fires, severely injuring one of the boys. Shortly after the movie runs, two young brothers find a gun in their house. While playing with the gun, the gun fires and kills one of the boys. The brothers' parents sue XYZ television network. The parents will ______.

lose because XYZ television network could not have foreseen that those children would watch the movie and try to imitate what they saw

A pharmacist wrote a book about drugs people can buy without a prescription. The author said Drmxz, an over-the-counter cold medication, had no side effects. However, Drmzx can cause serious problems in people who have liver problems. Cheryl, who has liver trouble, read the book, bought and took Drmzx, and suffered severe symptoms. Cheryl sued the book publisher for causing her injuries. Cheryl likely will ______.

lose, because courts say book publishers cannot verify all the information in every book they publish

In Near v. Minnesota, the Supreme Court ruled that _______________________.

prior restraints pose a serious threat of censorship as well as that laws that punish past actions by banning future publications are a form of prior restraint

The First Amendment ______.

protects the right of citizens to assemble in non-violent gatherings

Traditional public forums include _______________________________________.

public property designed and historically used for public gathering and association

When the Supreme Court reviews the constitutionality of laws, it applies _______________________.

rational review, intermediate review, or strict scrutiny

Out-of-court settlements in civil suits and plea bargains in criminal proceedings __________.

resolve the vast majority of U.S. trials

The explicit text of the U.S. Constitution ______.

says nothing about different First Amendment rights for children and adults