FINAL FOR JO 350

4 Foundations of the Rule of Law

(World Justice Project) 1. Accountability of all individuals/private entities under the law 2. Laws are clear, public, stable, and just; are applied evenly; and protect fundamental rights 3. The process by which laws are enacted, administered, and enforced is accessible and fair 4. Justice is delivered in a timely manner by competent, ethical, independent, and neutral representatives who serve the public good

forum shopping

(no longer a thing) 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

Six Sources of The Law From Which Journalism and Mass Communication Laws Originate

1. constitutional law 2. equity law 3. statutory law 4. common law 5. administrative law 6. executive orders CESCAE

time/place/manner 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. THIS MEANS THAT CONTENT NEUTRAL LAWS are legal

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. Laws against hate speech are usually unconstitutional; laws fall under strict scrutiny test

defamation

A false communication that harms another's reputation and subjects him or her to ridicule and scorn; incorporates both libel and slander.

petit jury

A jury of 6 to 12 persons that determines guilt or innocence in a civil or criminal action.

important government interest

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

supremacy

Article IV, Part 2 of the US Constitution (commonly called the Supremacy Clause) establishes that federal law takes precedence over, or supersedes, state laws

US v. O'Brien

Burning draft cards does NOT fall under the protection of free speech.

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.

peremptory challenge

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.

threat test

For speech to become a punishable threat, a speaker must... 1. direct the threat toward one or more individuals or a group 2. with the intent to threaten and 3. knowing a reasonable recipient will perceive a threat

Brandenberg v. Ohio (1969) (TEST)

Government can punish speech provoking illegal activity only if facts showed that the speaker 1. intended to and was likely to incite 2. imminent violent or illegal action

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.

textualists

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.

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.

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.

en banc

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

voir dire

Literally, "to speak the truth"; the questioning of prospective jurors to assess their suitability, the jury selection process

originalists

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

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.

venue

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

original intent

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

discovery

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

statutory construction

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

8 "Desiderata"

The rule of law requires laws to be... 1. general and non-discriminatory 2. widely known and dispersed 3. forward-looking in their application rather than retroactive 4. clear and specific 5. self-consistent and complimentary of each other 6. capable of being obeyed 7. relatively stable over time 8. applied and enforced in ways that reflect their underlying intent

USA PATRIOT Act

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

subpoena

a command for someone to appear or testify in court or to turn over evidence, such as notes or recordings with penalties for non-compliance

injunction

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

strict scrutiny

a court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is... 1. using the least restrictive means available 2. to directly advance its compelling interest and 3. the law must be necessary

compelling interest

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

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

writ of certiorari

a petition for review by the Supreme Court of the United States; certiorari means "to be informed of"

Federalism

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

overbroad law

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

tort

a private or civil wrong for which a court can provide remedy in the form of damages

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 to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way

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; under rational review, a law is constitutional if the government can show it serves a rational purpose

amicus curiae brief

a submission to the court from amicus curiae, or "friends of the court," which are interested individuals or organizations that are parties in the case

content neutral

a term to describe government actions that incidentally and unintentionally affect speech as they advance other important government interests unrelated to the content of the speech

content based

a term used to describe government actions prompted by the ideas, subject matter, or position of the message

O'Brien Test

a three-part test used to determine whether a content-neutral law is constitutional. A law is constitutional under O'Brien intermediates scrutiny if it falls within the power of government and... 1. advanced an important government interest 2. that is unrelated to suppression of speech 3. is narrowly tailored to only incidentally restrict First Amendment freedoms

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; is considered constitutional if it passes strict scrutiny

symbolic expression

action that warrants first amendment protection because its primary purpose is to express ideas

memorandum order

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

per curiam opinion

an unsigned opinion by the court as a whole

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

due process

fair legal proceedings guaranteed by the 5th and 14th amendments to the US Constitution

black-letter law

formally enacted, written law that is available in legal reporters or other documents (this includes constitutional law and statutory law)

rule of four

four justices must approve a writ of certiorari before a case will be heard on appeal before the Supreme Court

negligence

generally, the failure to exercise reasonable or ordinary care; the plaintiff must show that the media defendant had a duty of care, the defendant breached that duty, and the breach caused the plaintiff's injury

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 law

Equity Law

law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy

vague laws

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

categorical balancing

legal reasoning that weighs different broad categories, such as political speech, against other interests, such as privacy, to create general rules that may be applied in later cases with similar facts (ex: Lane v. Franks)

stare decisis

let the decision stand; the doctrine that a court follows precedent; the basis of common law, it literally means to stand by the previous decision

strict liability

liability without fault; liability for any and all harms, foreseeable or unforeseen, 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 appear in court for voir dire; a change of venire means a change of the location from which potential jurors are drawn

Clear laws

made to limit government's discretion

ad hoc balancing

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

executive order

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

political questions

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

true threats

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

dicta

statements in a court opinion that are not central or essential to its reasoning or holding

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

original jurisdiction

the authority to consider a case at its inception, as contrasted with appellate jurisdiction

discretion

the authority to determine the proper outcome

holding

the decision or ruling of a court

jurisdiction

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

deference

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

proximate cause

the legal determination of whether it is reasonable to conclude that 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

defendant

the party accused of violating a law, or the party being sued

appellee

the party against whom an appeal is made

appellant

the party making the appeal; also called the petitioner

plaintiff

the party who files a complaint; the one who sues

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

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

The Rule of Law (Fuller)

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

modify precedent

to change rather than follow or reject precedent

distinguish from precedent

to justify an outcome in a case by asserting that differences between that case and preceding cases outweigh any similarities

overturn precedent

to reject the fundamental premise of a precedent

remand

to send back to the lower court for further action (usually done when lower court did not fully explore facts/issues of the case)

media negligence test

to win a lawsuit for injury caused by media negligence, the plaintiff must prove breach of media's duty of care because the content presented 1. reasonably foreseeable harm or 2. proximate (directly related) cause of the harm

fighting words

words not protected by the 1st amendment because they are 1. directed at an individual and 2. innately inflict emotional harm or trigger violent response

Statutory Law

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