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
