MC 3080: Exam 1

What courts are bound by the decision of a federal circuit court of appeals?

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What does it mean for circuit courts to "conflict?"

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What is an example of such a conflict?

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Please be able to identify when the O'Brien test is appropriate to apply and be prepared to apply the test.

1. Is the regulation within the constitutional power of the government? 2. Does regulation further an important or substantial government interest? 3. Is the regulations unrelated to the suppression of expression? 4. Is the incidental restriction no greater than is essential (narrowly tailored)?

What are the three general levels of a court system (trial courts, intermediate courts of appeal and final court of appeal)?

1. trial courts: District Courts, State District Courts 2. intermediate courts of appeal: Courts of Appeals, State Courts of Appeals 3. final court of appeal: U.S. Supreme Court, State Supreme Court

What does it mean for a law to be underinclusive?

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

What is a facial challenge?

A broad legal argument that the challenged law or policy can never operate in compliance with the Constitution.

What is the diversity of citizenship jurisdiction?

A form of subject matter jurisdiction in which a United States District Court has to hear a civil case because the persons that a re parties are "diverse" in citizenship—usually meaning they are citizens of different states or non US citizens.

What is categorical balancing?

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

What are some examples of government action from the text?

A private school may censor a newspaper, because it is not government action. MTV may censor a music video, because it is a private entity and takes no government action.

What is the Incorporation Clause of the Fourteenth Amendment?

Also known as due process. The Supreme Court looked at the fourteenth amendment and declared that states have to provide all rights guaranteed by the federal constitution. This is a bridge of the first amendment, applied to state law.

What are arguments for and against each restraint upon expression?

Arguments for: necessary to protect in times of war if it will hurt the country, troops; if it's obscene, if it will incite violence, promote overthrow of the government.

What is the significance of the Supremacy Clause of the U.S. Constitution?

Article 6 of the U.S. Constitution includes Supremacy Clause so the U.S. constitution is the supreme law and others must follow.

What is the modern day incitement test?

Brandenburg Test

What is a legal precedent? What sets a precedent?

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

What types of issues do federal courts hear?

Cases that deal with the constitutionality of a law. Copyright laws. Media asking court to hold public proceedings dealing with illegal aliens. Legal issues related to ambassadors and public ministers. Disputes between two or more states. Whether US citizen captured in war zone has the right to face accusers in court. Bankruptcy.

What types of civil cases may be filed in federal trial court?

Civil actions arising under the Constitution, laws, and treaties of the United States; Certain civil actions between citizens of different states; Civil actions within the admiralty or maritime jurisdiction of the United States; Civil actions in which the United States is a party.

Man entered LA County courthouse wearing a shirt that said "F the Draft" and was charged with disturbing the peace through his offensive conduct.

Cohen v. California The issue of law addressed: First Amendment. The issue of law developed: freedom of expression Test: strict scrutiny test Unconstitutional in its application -14th amendment state laws cannot deny persons of the rights guaranteed by the US constitution

What is compelled speech?

Compelled speech is being forced to convey a message whether you want to or not.

How may a case generally move through the federal system or state system to reach the highest court in the land?

Congress has established two levels of federal courts under the Supreme Court: the trial courts and the appellate courts.

What are the key attributes of each source of American law?

Constitutional Law: Most powerful laws that serves as a charter for the government, specifying the government͛s form, functions and operating procedures Statutory Law: Begin as bills deliberated on by the legislature and then are vetoed or formally signed into law Administration Law: Administrative Procedure Act dictates the process by which federal agencies make and enforce regulations Common Law: Judges can create original legal rules as needed to resolve disputes Equity Law: Direct people to alter their behavior in a particular manner in order to stop harming others

How do the sources of American law interact with each other?

Constitutional Law: US Constitution - highest law of the nation that sets the framework of the federal government, including its division into executive, legislative and judicial branches and provides guidelines for the government͛s operation. State constitution - each state has their own constitution that reflects the federal constitution. Congress must approve state constitutions. Must not restrict min amount of freedoms guaranteed, but it may guarantee greater liberties. Statutory Law: Refers to the actual language of the legislative enactments as well as anyinterpretations rendered by the courts Administration Law: Regulations are invalid if they (1) exceed the scope of authority granted by Congress (2) conflict with the constitution or (3) deemed arbitrary and capricious by a court. Common Law: The doctrine of precedent means that a prior judicial decision serves as a governing model for future cases under identical or similar facts. Equity Law: Direct people to alter their behavior in a particular manner in order to stop harming others

Be able to identify examples of each type of American law.

Constitutional Law: outlines powers of various branches Statutory Law: state legislatures enact legislation Administration Law: Legislative bodies delegate some of their lawmaking authority to administrative agencies that add to the body of the law by passing administrative regulations Common Law: The binding principles and rules that originate from these case-by-case judicial decisions Equity Law: injunctions (i.e. New York Times v. United States)

Identify and define the major sources of American law.

Constitutional Law: provides framework for government Statutory Law: Congress votes on bill and enacts legislation and state legislatures enact legislation Administrative Law: law made by regulatory agencies Common Law: "judge made" law Equity Law: standard is fairness

What is the difference between content-based and content-neutral laws?

Content-Based laws are enacted because of the message, subject matter or ideas expressed in the regulated speech. Content-Neutral laws regulate the non speech elements of a message, such as the time, place or manner in which the speech occurs.

Be able to define both concepts and to identify regulations that fall under content-based and content-neutral.

Content-based laws: Subject to the strict scrutiny test, Laws that prevent desecration of the American Flag Content-neutral laws: Laws that regulate the size and placement of billboards, Ordinances that limit noise in hospitals

What is content-based regulation?

Content-based regulations that target the message conveyed by expression.

What is content-neutral regulation?

Content-neutral regulations refer to the non speech elements of a message, such as time, place or manner in which speech occurs.

What are some examples of protected political speech?

Ex: ballots and voting, political cartoons and blogs, petitions, campaign spending, electioneering speeches and lobbying, contributions and yard signs

What is an example of a public forum?

Example: Ward v. Rock Against Racism Members of a rock group claimed inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression - ordinance advanced compelling government interest.

Gitlow v. New York

First case established the bridge between the 14th and 1st Amendment. The issue of law addressed: First Amendment. The issue of law developed: you can't post about overthrowing government

What type or form of action is necessary for the constitutional protections of the First Amendment to protect speech?

For first amendment protections to kick in, there must have been some state action—a term often used to apply to any government action that potentially infringes on expression.

What did Whitney v. California clarify about distinctions between speech that is protected by the First Amendment and speech that may be considered unlawful advocacy for political change?

Freedom of speech is not "an absolute right to speak, without responsibility"

What is viewpoint-based discrimination?

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

What is a public forum?

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

Why is the doctrine of Incorporation important with regard to the First Amendment?

Incorporation prevents the states, as well as the federal government, from abridging protected First Amendment rights.

What level of constitutional scrutiny is applied to TPM restrictions?

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

Under the test from Near v. Minnesota, what must be shown to justify a prior restraint on the press?

It looked at whether prior restraints can be constitutional or not.

What is the significance of Marbury v. Madison to judicial review?

Judicial review clarified that court had to have those powers to stay whether or not statutorily law are unconstitutional.

What is the clear and present danger test from Schenck v. United States?

Justice Holms what might be said in ordinary times might be different than what is said during a time of war - we're in WWI at the time

Near v. Minnesota

Landmark decision by SCOTUS that recognized freedom of press by roundly rejecting prior restraints on publication The issue of law addressed: First Amendment The issue of law developed: prior restraint are always unconstitutional prior restraint is only constitutional when: it's a threat to national security, obscene publications, or incites overthrow of the government

What is a stare decisis?

Literally, "stand by the pervious decision."

What is ad hoc balancing?

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

landmark SCOTUS decision on campaign finance that imposed limit on contributions was unconstitutional (used strict-scrutiny test)

McCuthceon v. FEC

"Compelling editors or publishers to publish that which reason tells them should not be published" is unconstitutional.

Miami Herald v. Tornillo

What types of issues do state courts hear?

Most criminal cases, probate (involving wills and estates), most contract cases, tort cases (personal injuries), family law (marriages, divorces, adoptions).

sued for libel after the newspaper ran an advertisement claiming that Alabama police officers mistreated civil rights protestors.

New York Times v. Sullivan The issue of law addressed: First Amendment. The issue of law developed: actual malice Strict liability standard was unconstitutional as applied for a matter addressing a public official on matters of public concern.

Be able to identify key cases discussed in class in which the O'Brien Test was applied.

O'Brien Test: a three part test used to determine whether a content-neutral law is constitutional. A content-neutral law is constitutional if it: 1. Is not related to the suppression of speech 2. Advances an important government interest 3. Is narrowly tailored to achieve that interest with only an incidental restriction of free expression

How is symbolic speech protected by the First Amendment?

Only actions that are "closely akin to 'pure speech'" are viewed as symbolic speech.

What is media liability to negligence?

Plaintiffs suing the media for causing physical harm most often argue the defendants negligently distributed material leading to injury or death.

What is the difference between a prior restraint and a subsequent punishment?

Prior restraint are restrictions on expression imposed before publication. Subsequent publication is punishment imposed after (a crime).

Please be able to identify examples of prior restraint and subsequent punishment.

Prior restraint: taxes, licensing requirement, injunctions. Extra taxes on newspapers over a certain size, not allowing the publication of certain types of content, licensing where governor was given power to decide who did and did not get licenses, not fair. Subsequent punishment: fining someone or putting them in jail after putting up a political sign

When are prior restraints constitutional?

Publications that would jeopardize national security in wartime. Obscene publications. Publications that threaten to incite violence and or the violent overthrow of the government.

What is a prior restraint?

Restrictions on expressions imposed before publication or broadcast because communication occurred.

What is the highest court in the nation?

SCOTUS

What did Cohen v. California reveal about First Amendment protection for offensive speech?

SCOTUS overturned the decision: we cannot forbid particular words without ruling the risk of suppressing the ideas in the process

What is a political speech?

Speech that favors or disfavors a particular public issue, policy position or candidate.

What does government action, or state action, mean in that context?

State action may come in the form of laws, court orders, or the judgments and actions of individual officers.

What are the steps of the strict scrutiny test? Be ready to apply that test.

Step 1: is the restriction necessary Step 2: advance a compelling government interest Step 3: regulation is narrowly tailored to the least restrictive means available to achieve the goal meaning it harms the 1st Amendment as little as possible

What steps would a court ask to evaluate whether conduct is expressive?

Steps to evaluate expressive conduct: 1. is there intent to send a message? 2. is there a likelihood the message would be understood by a witness?

How is expressive conduct protected under the First Amendment?

Symbolic speech (expression) is action that warrants First Amendment protection because its primary purpose is to express ideas; when speech and action are intertwined to express an idea. Highly protected by First Amendment.

What is a time-place-manner (TPM) restriction?

TPM is 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.

Identify key cases discussed in which the strict scrutiny test was applied.

Texas v Johnson, Miami Herald v Tornillo, Simon Schuster v New York Crime Victims Board

burning American flag in act of protest

Texas v. Johnson The issue of law addressed: First Amendment. Johnson convicted for violating the Texas Flag Desecration Act because he was holding the US flag as it was burning. The rule of law developed: The Value of Protection and Speech Test: Strict Scrutiny. Was the Texas act as unconstitutional content-based abridgement of Johnson's exercise of his First Amendment rights? If there was (1) an intent to convey the message and (2) likelihood that witnesses would precede discontent, then YES it is unconstitutional because you are dealing with expression.

Be able to identify key cases discussed in class which the strict scrutiny test was applied.

Texas v. Johnson: Burning of the American Flag in act of protest Miami Herald v. Tornillo: Newspapers can͛t be compelled to say something Brown v. Entertainment Merchants Association: California trying to restrict sale of violent video games by making them only available with parental consent. Strict scrutiny test deemed not sufficient evidence to prove this law would achieve a compelling government interest. Research didn͛t show causation between playing violent video games and children becoming more violent.

What is that burden?

That burden has a real and immediate risk of harm to a compelling government interest.

What is the constitutional significance of the doctrine of Incorporation?

The "Doctrine of Incorporation" means that the freedom of speech/press guaranteed by the first amendment extends to the states via the incorporation clause of the Fourteenth amendment.

What do the First Amendment, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment protect?

The 1st amendment protects freedom of speech/press. The fourth amendment changed journalists' method of reporting crime. They used to have "ride alongs" with law enforcement. They have a right to privacy by the 4th amendment, and though we have free press, we can't infringe upon someone else's rights in their own home. The 6th amendment, the right to a speedy/fair public trial, ensures the public will know what is going on. The 14th amendment protects citizenship rights and equal protection of the laws.

Under what circumstances do taxes, fees or other financial burdens raise serious financial burdens that may threaten freedom of expression?

The First Amendment was intended to preclude "any form of previous restraint upon printed publications, or their circulations including those effected by the well-known and odious methods"

What is the O'Brien Test?

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

What constitutional balancing test is applied to evaluate a content-based restriction?

The Strict Scrutiny test is applied to evaluate a content-based regulation.

What constitutional basing is applied to evaluate those restrictions?

The Supreme Court generally applies some form of intermediate scrutiny to content-neutral laws that affect the freedom of speech - Strict Scrutiny Test

What is subject matter jurisdiction?

The authority of a court to hear cases of a particular type or cases relating to a specific subject matter i.e. bankruptcy court has the authority to hear only bankruptcy cases.

According to the textbook, what is the rule of law and what is the societal purpose for the rule of law?

The framework of a society in which pre-established norms and procedures provide for consistent, neutral decision making. The rule of law limits government power.

Who has the burden of proving a prior restraint is justified?

The government bears "heavy burden" to overcome presumption.

What does jurisdiction mean?

The legal authority of a court to hear and decide a case and the geographic area over which the court has the authority to decide cases.

What is judicial review?

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

How does the First Amendment protect fighting words?

They don't.

What is an example of a vague law?

U.S. District Court judge in New York ruled that provisions of the 2012 National Defense Authorization Act were unconstitutionally vague and had a chilling effect on reporters and activists.

Also be able to identify key cases in which the O'Brien test was applied.

US v. O'Brien

lying about earning the Medal of Honor which the highest military honor awarded

United States v. Alvarez The issue of law addressed: First Amendment. Alvarez convicted for lying about earning the Medal of Honor which is the highest military honor awarded. The rule of law developed: Stolen Valor Act. Found unconstitutional because it failed to pass scrutiny.

burnt his draft card on the steps of the Boston Courthouse to protest the Vietnam war.

United States v. O'Brien The issue of law addressed: First Amendment. The issue of developed: Goal of Regulation Test: SCOTUS designed O' Brien test. 1. Is the regulation within the constitutional power of the government? 2. Does regulation further an important or substantial government interest? 3. Is the regulations unrelated to the suppression of expression? 4. Is the incidental restriction no greater than is essential (narrowly tailored)? Found constitutional.

selling videos of illegal dog fighting and "crush videos"

United States v. Stevens The issue of law addressed: First Amendment The rule of law developed: Over-breadth. Is a federal law intended to criminalize animal crush videos and videos depicting animal fighting overbroad? Yes, the content was overbroad meaning it covered more than it needed to in order to serve the government interest.

What does it mean for a law to be vague?

Vague laws 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.

What does it mean for a law to be overbroad?

Violates the principles of precision and specificity in legislation.

Performers argued that a sound ordinance in Central Park unconstitutionally allowed the city to control their expression and served no important government interest because there was not threat of public disturbance.

Ward v. Rock Against Racism The issue of law addressed: This deals a content neutral law (Time/place/manner), so the court applied the O'Brien test. The issue of law developed: content-based regulations

What must a plaintiff prove to win a lawsuit injury caused by media negligence?

When the suits such as these are based on the tort of negligence, the plaintiff must show the media defendant has a duty of due care.

What are "fighting words"?

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

Can an informal restraint, including a licensing requirement or a tax, be a prior restraint?

Yes. It is a targeted restraint, it's problematic, it's not uniformity.

What is incitement?

adopted by the US Supreme Court to determine when speech is sufficiently dangerous that it may be punished

What is the burden of proof for proving a criminal charge?

beyond a reasonable doubt

What is the difference between a civil complaint and a criminal charge?

civil complaint: alleges violation of a civil laws criminal charge: alleges violation of a criminal law

What is expressive conduct?

expressive conduct = symbolic speech

In which federal circuit is Louisiana located?

fifth circuit

Be prepared to identify how the incitement doctrine has evolved via subsequent U.S. Supreme Court rulings and how the definition of unprotected incitement has changed over time.

fighting words

What is the Supremacy Clause?

hierarchy of powers

What are the major First Amendment values for free speech?

individual liberty self-government limited government power attainment of truth safety value its own end

What is symbolic speech?

nonverbal expression

What is the burden of proof for proving a civil complaint?

preponderance of evidence

New York Times v. United States

prevent NYT from publishing Pentagon Papers. government has burden of proof in prior restraint.