Comm Law Terms
underinclusive
A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment.
originalist
A Supreme Court justice who interprets the Constitution in line with the meaning or intent of the framers at the time of enactment.
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.
subpoena
A command for someone to appear or testify in court or to turn over evidence, such as notes or recordings with penalties for noncompliance
Injunction
A court order prohibiting a person or organization from doing some specified act
Defamation
A false statement that harms someones reputation and subjects them to ridicule.
time, place, and manner restrictions
A first amendment concept that laws regulating the conditions of speech are more acceptable the those regulating content, also the laws that regulate these conditions
writ of certiorari
A petition for review by the Supreme Court of the US; certiorari means "to be informed of"
Federalism
A principle according to which the states are related to but are independent of each other and are related to yet independent of the federal government.
amicus brief
A submission to the court from an amicus curiae, or "friend of the court," an interested individual or organization who is not party in the case.
Symbolic expression
Action that warrants some First Amendment protection because its primary purpose is to express ideas.
important government interest
An interest of the government that is substantial or significant (i.e., more than merely convenient or reasonable) but not compelling.
concurring opinion
An opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning.
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.
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.
Permptory Challenges
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.
Due Process
Fair legal proceedings by the Fifth and 14th Amendments to the U.S. Constitution.
Sedition act of 1798
Federal legislation under which anyone "opposing or resisting any law of the United States, or any act of the President of the United States" could be imprisoned for up to two years. The act also made it illegal to "write, print, utter, or publish" anything that criticized the president or Congress. The act ultimately was seen as a direct violation of the First Amendment and expired in 1801.
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.
textualist
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.
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.
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.
en banc
Literally "on the bench" but now meaning "in full court" The judges of circuit Court of appeals will sit en banc to decide important or controversial cases.
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.
voir dire
Literally, "to speak the truth"; the questioning of prospective jurors to assess their suitability.
ad hoc balancing
Making decisions according to the specific facts of the case under review rather than more general principles
Discretion
The authority to determine the proper outcome
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.
stare decisis
The doctrine that courts follow precedent the basis of common law, it literally means to stand by the previous decision.
original jurisdiction
The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.
venue
The locality of a lawsuit and of the court hearing the suit. Thus, a change of venue means a relocation of a trial.
CH 2 Original Intent
The perceived intent of the framers of the First Amendment that guides some contemporary First Amendment application and interpretation.
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.
discovery
The pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered.
burden of proof
The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. In libel law, for example, the plaintiff has the burden of proof.
probable cause
The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.
fighting words
Words not protected by the First Amendment because they cause immediate harm or illegal acts.
per curiam opinion
a brief, unsigned court opinion
Strict Scrutiny
a court 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 its compelling interest
Compelling interest
a government interest of the highest order, an interest the government is required to protect
Grand jury
a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt
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
Forum Shopping
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
overbroad
a principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary
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 that the court terminate a case without permitting it to go further
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.
libel per se
a statement whose injurious nature is apparent and requires no further proof
Libel per quod
a statement whose injurious nature requires proof
O'Brian Test
a three-part test used to determine whether a content-neutral law is constitutional
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
memorandum order
an order announcing the vote of the Supreme Court without providing an opinion
supremacy
established that federal law takes precedence over or supersedes state laws
black letter law
formally enacted, written law that is available in legal reporters or other documents
Ch 3 USA patriot act
gives law enforcement agencies greater authority to combat terrorism
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 laws
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 govt purpose unrelated to the content of speech.
vague law
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
content nuetral laws
laws that incidentally and unintentionally affect speech as they advance other important government interests
Strict Liability
liability without fault; liability for any and all harms, foreseeable or unforseen, 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 then appear in court for voir dire; a change of venire means a change of the location from which potential jurors are drawn.
ch 4 damages
monetary compensation that may be recovered in court by any person who has suffered loss or injury. damages may be compensatory for actual loss or punitive as punishment for outrageous conduct.
executive orders
orders from a government executive, such as the president, a governor or a mayor, that have the force of law
doctrines
principles or theories of law that shape judicial decision making
tort
private or civil wrong for which the law grants a remedy
political questions
questions not subject to judicial review because they fall into areas properly handled by another branch of government
true threat
speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety
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
holding
the decision or ruling of a court
negligence
the failure to exercise reasonable or ordinary care.
Judisdiction
the geographic or topical area of responsibility and authority of a court
deference
the judicial practice of interpreting statues and rules by relying heavily on judgements and intentions of the administrative experts and legislative agencies that enact the laws
proximate cause
the legal determination of whether it is reasonable to conclude 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.
communications decency act
the part of 1996 telecommunications act that largely attempted to regulate internet content.
appellee
the party against whom an appeal is made.
Defendant
the party being accused of violating the law (the party being sued"
Appellant
the party making the appeal; also called the petitioner
Plaintiff
the party who is suing
categorical balancing
the practice of deciding cases by weighing different broad categories, such as political speech, against other categories of interests, such as privacy, to create general rules that may be applied in later cases with similar facts
statutory construction
the process by which courts determine the proper meaning and application of statutes
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
Rule of Law
the standards of a society that guide the proper and consistent creation and application of the Law
Affirm
to ratify, uphold or approve a lower court ruling
Overrule
to reverse the ruling of a lower court
Remand
to send a case back to a lower court to be tried again
Statutory Law
written law formally enacted by city, county, state and federal legislative bodies