JMS 494: Exam 1
Chelsea Manning
"She is a former United States Army soldier who was convicted by court-martial in July 2013 of violations of the Espionage Act and other offenses, after disclosing to WikiLeaks nearly 750,000 classified, or unclassified but sensitive, military and diplomatic documents" (regarding Afghan war) She is currently in jail and continuing to testify in front of a grand jury against Julian Assange
Julian Assange
"an Australian editor, publisher and activist who founded WikiLeaks in 2006. WikiLeaks came to international attention in 2010 when it published a series of leaks provided by Chelsea Manning" Sweden issued international arrest warrant for Assange after allegations of sexual assault for him to be extradited to the US He was granted asylum by Ecuador but then in April 2019, it was withdrawn and he was arrested → currently incarcerated in HM Prison Belmarsh under the Espionage Act
common law
-"judge-made" law comprised of the principles and traditions established through court rulings; precedent-based law. (Basis for all our law) -laws established by judges in England and were common to the entire country. -The doctrine of precedent began during Common Law
Brown vs. Entertainment Merchants Association
-A california law prevented the sale of violent video games to minors without parental supervision and required labeling for violent content, just like cigarettes -Ruling: The SC applied the strict scrutiny test and struck down the law as unconstitutional, giving the Entertainment Merchants Association, a trade group, 1st Amendment protection -Class: Government can simply shut down video games, this came out of california, supreme court said no
Morse v. Frederick:
-A high school student (Joseph Frederick) sued his school district after the principal disciplined him for holding a sign that read "Bong Hits 4 Jesus" during an off campus event (2007) -Ruling: The SC ruled that a school may restrict the right of students to display a sign advocating the illegal use of drugs
Chaplinsky vs. New Hampshire
-A man was convicted of disturbing the peace after disturbing Jehovah's Witness pamphlets calling an officer a "********* racketeer" and a "****** Fascist" (1942) [QUIZLET MADE ME CENSOR] -The Supreme Court upheld his conviction because vulgar speech and "fighting words" didn't contribute to the expression of ideas or possesses any social value -NH won
R.A.V. vs. City of St. Paul
-A teenager burned a cross on the lawn of an African-American family. He was arrested and charged with the city's Bias-motivated Crime Ordinance, which banned symbols that "[arouses] anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender." (1992) -Ruling: The SC ruled that the language in the ordinance was overbroad
Cohen vs. California:
-A vietnam war protestor was charged with disorderly conduct when he wore a jacket inside a Los Angeles courthouse with the words "F the draft" on the back (1971) -The Supreme Court ruled in favor of Cohen and said his speech was protected, even during wartime. First amendment is all about the ability to say something that may be offensive to someone else. In this case, there was no imminent danger. It didn't meet the test, it was pure speech not symbolic.
Symbolic speech:
-Action that warrants some 1st Amendment protection because its primary purpose is to express ideas. -EX: Arm band case, Tanker, Texas VS. Johnson, burning the flag: Actions that purposefully convey a particular message or statement to those viewing it.
Content-neutral laws (intermediate scrutiny):
-Book: laws enacted to advance government purpose unrelated to the content of speech -Generally regulate the nonspeech elements of messages, such as time, the place or the manner (size or volume) in which the speech occurs -EX: first established with O'Brien ripping his draft card
Brandenburg vs. Ohio
-Clarence Brandenburg led a KKK rally in Ohio against the government but his words were insufficient to cause a Clear and Present Danger (1969) -Ruling: The SC established a test to determine if a party would lose 1st amendment protection by advocating imminent or immediate violence against the government. Brandenburg did not meet the test and his conviction was overturned
U.S. vs. Richard Nixon (case, issue, outcome)
-Criminal case -US = California, Richard Nixon = former president of the United States -President Nixon refused to submit tape recordings and other subpoenaed materials to a federal court in Washington (1974) -Precedent: the case became the precedent for limiting a President's executive privileges -Ruling: a unanimous court ruled against the President. Chief Justice Rehnquist recused himself as he served as Assistant AG in the Nixon administration -Richard Nixon became the first president in U.S. history to resign. The house judiciary committee had charged him in a bill of impeachment with "high crimes and misdemeanors" In the cover up of Watergate crimes he misused government agencies such as the FBI the CIA and IRS
Virginia vs. Black:
-Defendants were convicted of trying to light a cross on an African-American neighbor's property and of burning a cross at the KKK rally, both in violation of Virginia law stating that any such burning shall be evidence of an intent to intimidate a person or group of persons (2003) -Ruling: The SC ruled the law was unconstitutional because defendants must prove they did not intend for the cross burning to be intimidation
Constitutional Law
-Established by the nature, functions, and limits of government. The US constitution is the supreme law of the land. "Where we spend most of our time" -The US Constitution is the supreme law of the United States -Book: the set of laws that establish the nature, functions, and limits of gov
Texas vs. Johnson
-Gregory Lee Johnson, a member of the revolutionary communist youth brigade, burned the American flag during the Republican National Convention in Dallas (1989) -Ruling: The SC held that Johnson had a right to burn the flag as a form of protected speech
Near v. Minnesota
-JM Near, the publisher of the Saturday Press Newspaper, sued Minnesota because of the state's public nuisance law in 1925 which provided for permanent injunctions for publishing "malicious, scandalous and defamatory" newspapers -Ruling: The SC ruled that the Minnesota law was prior restraint on the Sat Press and was unconstitutional under the 14th amendment. The case was cited as precedent in the Pentagon Papers case -The first major media law press case all about prior restraint
trial courts:
-Judges or juries review the facts -Where nearly all cases begin -Only court to use juries -Do not establish precedents
Karen Forseca (case, issue, outcome)
-Karen Fonseca put a custom made sticker on the back of her pickup that read F..Trump and F..You for voting for him." Fort Bend County (Texas) Sheriff Troy Nehls posted a photo of the truck on facebook and threatened to arrest her for disorderly conduct -"The elements of the crime of disorderly conduct are not met." said Fort Bend County District Attorney John Healey (yay first amendment rights!) -Fonseca was arrested for possession and use of a fake identification in 2014 → she was prosecuted on disorderly conduct
administrative rules
-Laws passed by a regulatory agency; (ie FCC, FTC) -Book: the orders, rules, and regulations promulgated by executive branch administrative agencies to carry out their delegated duties
Espionage Act of 1917:
-Made it a crime for anyone to give information that could interfere with US military prosecution of the war -Was an issue in 1917 and today; is still pertinent today. -EX: Schenck v US (Justice Oliver Wendell Holmes Jr) -Designed to discourage people from doing anything which might impair the government from a national security standpoint -Criminal act → penalty = death (Fees are up to $10,000) -Very serious when someone is charged with this
Protection of speech:
-Political speech receives the greatest protection EX: Charlottesville, police officer with KKK application in his house -Libel, obscenity, and "fighting words" receive no protection -Advertising receives less protection than political speech but more protection than libel, obscenity and "fighting words"
Public and private forums
-Public forum: government property held for use by the public, usually for purposes of exercising rights of speech and assembly -EX: Snyder vs. Phelps (public vs. private forum) They were on public property and within their rights → first amendment protects public picketing even when the messages "fall short of refined social or political economy" -When private property replaces or functions as a traditional public space → it may be treated as a public forum but the law in this area is unclear
Tinker vs. Des Moines Independent Community School District
-Students wore black armbands to school to protest the Vietnam War (1969) -Ruling: The SC ruled that armbands were protected by the 1st amendment as a form of symbolic speech and that students did not shed their 1st amendment rights "at the schoolhouse gate" -Tinker won
Snyder vs. Phelps
-The Phelps family and the Westboro Baptist Church protested at the funeral of a Marine killed in Iraq (2011) -Ruling: The protestors had the right to protest on public property even though it caused emotional distress for the Snyder family
New York Times Co. vs. U.S.
-The newspaper published classified documents (Pentagon Papers) about the Vietnam war that the gov didn't want disclosed for national security reasons (Espionage Act of 1917) -Precedent: Near vs. Minnesota -Ruling. The SC ruled that the gov can't restrain the media from publishing info prior to publication unless it can show a compelling reason to do so
statutory law
-Written law formally enacted by city, county, state and federal legislative bodies. Passed by legislators -EX: California Senate Bill 1421 which allows the release of records, including sexual misconduct, dishonesty in reporting and investigating crimes and officer-involved shootings -City county, state and federal legislative bodies enact statutory law -Statutes are written down like constitutions
Sources of law
-common law -equity law -statutory law -constitutional law -executive orders -administrative rules
equity law
-created by judges to decide cases based on fairness and ethics and also to determine the proper remedy. -Rules/Procedures are more flexible. No jury. -EX: Restraining orders that require paparazzi to stay away from celebrities is a form of equity law. -About a judge providing fairness
appellate courts
-judges review the law and how it was applied by the trial court, courts may affirm, overrule or remand, judges my concur or dissent -Decisions in appellate courts are based primarily on which are arguments, or briefs, and on short oral arguments from the attorneys representing each side of the case -Two levels: intermediate courts of appeal and the supreme court
Roger Stone
-person who is going to trial because he talked to much under a gag order -Political consultant, lobbyist, and author who worked in the political campaigns of Richard Nixon and Donald Trump
Brian Karem vs. Donald Trump (case, issue, outcome)
-playboy whitehouse correspondent, Judge said whitehouse was wrong for taking away press pass → example of a Civil Law -He was denied his due process because they took away his press pass Judge ordered that he will immediately regain access to the White House -Karem argued that the White House was violating the 1st amendments and denying him due process
Content-based laws (strict scrutiny):
-test that courts have to apply to see if this speech is legal -Strict scrutiny finds that discriminate on the basis of content unconstitutional unless they use the least restrictive means to advance a compelling government interest (p. 133) -Book: laws enacted because of the message, the subject matter or the ideas express in the regulated speech
define Clear and Present Danger:
-used in dealing with freedom of speech within the first amendment to determine whether or not a statement is protected under the amendment. If the person says something that may cause danger to the people around them, their speech is not protected by the first amendment. Schneck vs U.S., Brandenburg vs Ohio.
Prior restraint:
A form of government censorship that is presumed unconstitutional; the government must show a compelling interest and the restraint must be very narrow. Restraining someone prior to publication EX: NYT vs. US
Elonis vs. U.S.
Anthony Eloni sent threatening posts to his wife on Facebook while they were going through a divorce. It was the first case the Supreme Court decided about true threats and the limits of speech on social media (2011) Ruling: The SC ruled that the gov had not proven intent by Elonis
Schenck vs. U.S.
Charles Scheneck, a member of the Socialist Party, was charged with and convicted of violating the Espionage Act of 1917 for distributing leaflets opposing US involvement in World War I The Supreme Court upheld his conviction, Justice Oliver Wendell Holmes wrote that the violation was a "clear and present danger" to the US -Reason this happened was because of the judge -Danger was clear → not enough soldiers to go to war
State courts (process + what each court covers)
County, municipal, traffic, magistrate, etc (minor cases, arraignments) → special court (divorce, juvenile, family, housing cases heard) → superior court (hears serious cases, most trials held here) → court of appeals (hears appeals from lower courts) → state supreme court (hears appeals from court of appeals)
Nicholas Sandmann and The Washington Post
Court says it was opinion and they're entitled to publish that Nathan Phillips there for Indigiouness people march and Sandmann there for protest against abortion Nicholas Sandmann, a high school student in Kentucky, faced off with Nathan Phillips in Washington, DC in Jan. 2019 Sandmann sued The Washington Post for $250 million claiming it defamed him by suggesting that he "assaulted and/or physically intimidated" the Native American activist "engaged in racist conduct," and "engaged in taunts," among other behaviors US District Court Judge William Bertelsman dismissed the lawsuit, saying "the Court accepts Sandmann's statement that, when he was standing motionless in the confrontation..." Phillips saw himself as being blocked and not able to retreat → they may have been erroneous but they are opinion protected by the First Amendment. And the Post is not liable for publishing these opinions, for the reason discussed in opinion
Edward Snowden
Former NSA agent who copied and leaked classified information from the National Security Agency in 2013 without authorization. National security takes on a more important role during war time
1st Amendment
Freedom of Speech and press (most important to this class)
define amicus curiae
Friend of the court. People who have no specific legal stake in a lawsuit but are allowed to appear on behalf of one of the parties in the case. EX. Media organization files a complaint..Brian Karem sued the US, a civil complaint in Federal trial court. Media Orgs came in as a friend of the court. They filed a brief of support.
define "imminent and immediate" violence:
Immediate threat: one that is ongoing, the possibility of mortal injury is measured in terms of finite time. It is happening NOW. Imminent threat: Threat is defined by actions or outcomes that MAY occur during an encounter. It does not have to be instantaneous. Ex. Charlottesville (two sides facing each other)
14th Amendment
Laws that apply to the U.S. also apply to the States
define rule of law
No person is above the rule of law in this country EX. being tested rn with Trump
executive orders
Orders from a government executive, such as the president; a governor or a mayor, that have the force of law.
Fault
Private individual = negligence Public official = actual malice
Rolling Stone magazine and the University of Virginia
Public official: Dean of UV Rolling Stone magazine published an article in 2014 about a sexual assault at the University of Virginia frat house based on the allegations by a woman named "jackie" Rolling Stone later retracted the article and there was an investigation by the police and the Columbia Journalism Review Involved: Nicole Eramo, Associate Dean of Students, Phi Kappa Psi frat and three of its members, Student Jackie Coakley, Journalist Sabrina Erdley, Rolling Stone magazine "Eramo's lawyers wrote in their complaint that the magazine defamed her casting the former associate dean as the villian in the article, portraying her as the public dace of an administration indifferent to rape victims" WP reported Lawyers for Rolling Stone countered that while the magazine made a mistakes it hadn't acted with "actual malice," the standard needed in defamation cases involving public figures, according to The Post Rulings "The jury decided that Rolling Stone and Erdely were liable for $3 million in damages to Eramo" "Phi Kappa Psi filed a $25 million lawsuit against Rolling Stone in state court "to seek redress for the wanton destruction caused to Phi Kappa Psi by Rolling Stone's intentional, reckless, and unethical behavior". In September 2016, the magazine sought to have the lawsuit dismissed; however, a circuit court judge ruled that the suit could proceed. On June 13, 2017, the lawsuit was settled for $1.65 million."
What you have to prove if you're public vs private individual
Public officials (actual malice) private individuals (negligence)
Censorship:
Seditious libel laws made it illegal to criticize the government Licensing: You have to have a permit to do certain things as a journalist Taxation: Taxed so heavily you are put out of business Prior restraint: The government can't restrain (or censor) the press prior to publication. If it does the government must show a compelling interest and the restraint must be very narrow -EX: the NYT company v. US (national security, The Pentagon Papers), Nebraska PRess Association v. Stuart (legally obtained information) and Near v. Minnesota (nuisance publications)
Sheriff Joe Arpaio (case, issue, outcome)
Sheriff Joe Arpaio of Arizona was convicted (and later pardoned) of criminal contempt of court for "disregarding a federal judge's orders to stop detaining people solely on the suspicion that they were in the country illegally."
define due process
Someone gets a fair hearing 5th amendment
US vs. Roger Stone
Stone: Political consultant, lobbyist, and author who worked in the political campaigns of Richard Nixon and Donald Trump A focus of special counselor Robert Muller's investigation into Russian interference in the 2016 presidential election Indicted and arrested in 2019 for witness tampering, obstructing an investigation and making false statements → trial set for Nov. 2019 "This is a criminal proceeding, not a public relations campaign," said US District court judge Amy Berman Jackson. "I believe it is better for counsel and parties to do their talking in pleading, not on courthouse steps, not on the talk show circuit." Judge Berman said she was considering a gag order to make sure Stone recieved a fair trial The trial is still pending and he still remains charged with obstruction, giving false statements and witness tampering charges.
New York Times Co. vs. Sullivan
The commissioner of public safety in Montgomery, Alabama sued the NYT after it printed an advertisement that contained factual errors The SC ruled that Sullivan was a public official and had not provided actual malice
The Watergate scandal and The Washington Post.
The house judiciary committee had charged him in a bill of impeachment with "high crimes and misdemeanors." In the cover-up of Watergate crimes he misused government agencies such as the FBI, the CIA and the internal revenue service
define 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. "Tells the courts to stand by what courts have decided previously". Go back to the past to figure out how a judge is going to handle a case / rule today EX: NYT vs. US
Seditious libel:
These laws make it illegal to criticize the government. Libeling the government; criticizing the government or government officers.
define "clear and present danger"
This happened in WW1 era, it came out of the case of Charles vs. Shank that the danger was clear and present
federal courts
US district courts → US circuit court of appeals → Supreme court of the US
define hate speech
Words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender or sexual orientation. It's controversial, but not altogether uncommon.
define gag order
a judge's order that a case may not be discussed in public. EX. Roger Stone (person who is going to trial because he talked to much under a gag order)
Libel per se:
a statement whose injurious nature requires no futher proof. On its face → defamatory words
Libel per quod:
a statement whose injurious nature requires proof Have to add some words to show this is possibly libel
absolutist theory
first amendment, congress shall make no law (these people are far and few between) EX: Justice Gorsich
ad hoc balancing theory
making decisions according to the specific facts of the case under review rather than more general principles. Balance between some government interest and the first amendment.
define "fighting words":
speech that directly incites damaging conduct Fighting words are a category of speech that is unprotected by the First Amendment. spoken words intended to incite hatred or violence from their target
preferred position balancing theory
the 1st amendment is preferred over other interests Look at rights of the media, rights of the government
define Jurisdiction
the official power to make legal decisions and judgments. The court's authority to hear a case. "Federal courts had no jurisdiction over the case". The location of the court, does this court have the authority. EX. If you're in a trial court and should be in an appellate court, that court doesn't have jurisdiction