MCOM Exam 1 Review - Chapters 1-3

Speech not protected by the First Amendment

- "Fighting Words" - Words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" - Fighting words may be prohibited if: 1) There is a face-to-face encounter 2) The encounter could result in an immediate breach of the peace

Sedition law: The Alien and Sedition Acts of 1798, purpose and outcome

- "Sedition" - attempt / plotting/ plan to overthrow the government - Alien and Sedition Acts of 1798: Forbade false, scandalous, and malicious publications against the United States government, Congress, and the president - Punished people who sought to stir up sedition or urged resistance to federal laws - John Adams, a Federalist, who was the President at the time the law was passed and Thomas Jefferson, a Republican, were rivals - Law aimed at silencing criticism of Federalists in Jeffersonian political newspapers - There were 15 prosecutions under the Sedition Act, including editors of eight Jeffersonian newspapers - Adams lost his bid for re-election in 1800 largely, because of his unsuccessful attempts at silencing critics with the Sedition Act - The Sedition Act expired in 1801 & Jefferson, now president, pardoned all those who had been convicted under the Act

"Stare decisis" - meaning and application; how can courts handle precedents

- "Stare decisis" means let the decision stand - Latin expression for the concept that judges look to past decisions to make future ones and rely on precedents.

What is the reason judges are not questioning the judgment of school officials as closely when it comes to limiting student speech and expression?

- "legitimate pedagogical concerns" - School shootings like those at Columbine in 1999?

Snyder v. Phelps - Westboro Baptist case significance to free speech

- 2012: Restrictions placed on funeral protests by amending federal statute. - Tactics of Westboro Baptist Church were in part a reason for the statute change - Supreme Court ruled the rights of the church to engage in hate speech are protected, with restrictions

How the Brandenburg incitement test has been utilized in recent years

- According to the high court, "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions." - The Brandenburg test for incitement to violence is used by courts in wrongful death, negligence, and product liability lawsuits against media products that play some part in inciting a person to commit illegal acts -Used to challenge media products in court: video games, movies, books

Clery Act - requirements and purpose for schools

- All colleges and universities that participate in federal student aid programs are required to give timely warnings of campus crimes that represent a threat to the safety of students and/or employees and to make public their campus security policies. - Mandates that colleges and universities collect data & statistics on a # of specific crimes and report the info to the campus community on an annual basis (ASRs - Annual Security Report) - Increases safety & data helps student journalists in reporting problems on their campus

The Doctrine of Counterspeech, and what First Amendment theory applies

- Believes the proper response to negative speech is to counter it with positive expression. - It derives from the theory that audiences, or recipients of the expression, can weigh for themselves the values of competing ideas and, hopefully, follow the better approach. - The counterspeech doctrine is one of the most important free expression principles in First Amendment

Distinguish between bench trial and jury trial

- Bench trial: a trial conducted before a judge without a jury. - Jury trial: a group of twelve people (the jury) listens to the evidence and renders the verdict

Book banning: how courts have failed to provide clear guidance

- Courts have failed to offer specific criteria to guide librarians in censorship decisions - What justifies a "Clear and Present Danger" is not explicitly stated

When agencies like FTC and FCC create rules, they are considered what kind of law?

- Create rules considered:Administrative Law - Federal Communications Commission (FCC) & Federal Trade Commission (FTC)

Statutory Law

- Created by elected legislative bodies at the local, state, and federal levels - Deals with problems that affect society or large numbers of people - Criminal laws in the United States are all statutory laws - Collected in codes and law books, instead of in reports

Equity Law

- Differs in procedures and remedies in comparison to common law - Rulings in equity suits are judicial decrees, not yes or no judgments & equity courts can issue restraining orders Typical Remedies in Equity Law: - Temporary Restraining Order / Preliminary or Permanent Injunction

Executive Orders and Administrative Rules

- Executive Orders: Legal orders or declarations issued by elected officers of localities or states or by the president of the United States - Administrative Agency: Decide laws and legal principles governing the administration and regulation of government agencies - (Courts may review administrative agency decisions and can overturn a ruling)

Florida v. Georgia (2021) Supreme Court original jurisdiction case

- In 2018 the Supreme Court exercised its original jurisdiction in a case concerning an interstate river basin involving the Flint and Chattahoochee Rivers, which begin near Atlanta and flow south and meet the Apalachicola River in Florida. - In 2013, Florida had sued Georgia, asking the Court to issue a decree, or order, that would equitably apportion the basin's waters. Florida claimed that Georgia was consuming more than its fair share of water from the interstate network of rivers. The Sunshine State asserted that the Peach State's alleged overconsumption harmed Florida's economic and ecological interests. - In 2021, however, the Court in Florida v. Georgia agreed with the recommendation of the special master "that Florida failed to prove by clear and convincing evidence that Georgia's alleged overconsumption caused serious harm to Florida's oyster fisheries or its river wildlife and plant life." - The Court thus ruled for Georgia and dismissed Florida's lawsuit.

USA v. Bolton (2020) equity law - injunction case

- Justice Dept. sought preliminary injunction against former National Security Adviser John Bolton over memoir about Trump White House. - Department claimed classified information was in the book. - Court denied the injunction: book had already been printed and shipped, and the injunction would be ineffective.

Intermediate scrutiny standard - meaning and limitations

- Meaning: rules and restrictions should meet the intermediate scrutiny standard of judicial review - Limitations: 1) Rules must be content-neutral both on the face and in the manner in which they are applied 2) Law must not constitute a complete ban on one kind of communication 3) Rules must be justified by a substantial state interest against restraint on speech 4) Law must be narrowly tailored to not restrain more speech than necessary to further the stated governmental interest

Distinguish between plaintiff and defendant in a court case

- Plaintiff: Party who initiates a civil suit and can be awarded monetary damages if he or she wins - Defendant: Party against whom the suit is directed

Know the kinds of Supreme Court opinions and their meanings:

- Primary majority: The decision of the Court in a case, which includes the rationale for the decision - Concurring: Written by justices who agree with the outcome of the court's opinion, but not the rationale - & Dissenting opinions: Written by justices who disagree with the majority decision

The problems that faced publishers and printers in the colonial era

- Seditious Libel laws: used to punish citizens who criticize the government and did not matter whether the criticism was truthful or not - Licensing or Prior Restraint Laws: required printers to obtain prior approval from the government or the church before printing their handbills, pamphlets, or newspapers - Licensing lasted until the mid-1720s in the American colonies - Most publishers refused to buy the tax stamps and there was little retribution by the British

Brown v. Entertainment Merchants Association - video games significance

- The Court in Brown struck down a California law that prohibited the sale or rental of "violent video games" to minors and required the packages of such games to carry an "18" warning label. - The Court held that the California law was content based because it singled out a particular type of content in video games-namely, violent content-for regulation. Video games with other types of content were not regulated by the California law. -Because the law was content based, the Court applied the strict scrutiny standard of review described earlier. -The Court determined that the social science evidence offered by California was insufficient to prove the existence of a compelling interest necessary to support the statute under strict scrutiny.

Citizens United case - landmark ruling on corporate campaign spending

- The Supreme Court declared as unconstitutional a law prohibiting unions and corporations, both for-profit and non-profit, from using general treasury funds to pay for advocacy ads close to the time of an election - "Speech restrictions based on the identity of the speaker are all too often simply a means to control content"

Bethel School District v. Fraser - significance

- The Supreme Court found that officials at Bethel High School did not violate the free speech rights of Matthew Fraser when they suspended him for making a sexually suggestive nomination speech for a fellow classmate - Court refused to apply the political speech standard in Tinker, ruling that society has an interest "in teaching students the boundaries of socially appropriate behavior" - Court held that schools can punish students who use "offensively lewd and indecent speech" that is "unrelated to any political viewpoint" - Unprotected expression

Fighting words doctrine/hate speech - what courts look for

- The U.S. Supreme Court created the "fighting words doctrine" - Words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" Fighting words may be prohibited if: - There is a face-to-face encounter - The encounter could result in an immediate breach of the peace

Hazelwood v. Kuhlmeier and legitimate pedagogical concerns

- The U.S. Supreme Court ruled that it was acceptable for a school to censor a high school newspaper produced as part of a journalism class if the school's actions are reasonably related to "legitimate pedagogical concerns" - Schools could also censor material that was ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences - Censorship of Expression in Public High Schools

Constitutional Law

- The United States Constitution is the supreme law of the land; All other forms of law, whether common, equity or statutory, that conflict with the United States Constitution are unenforceable Laws could be declared unconstitutional under the: - Void for vagueness doctrine - Overbreadth doctrine

Know importance of judicial review in mass media court cases

- The right of any court to declare any law or official governmental action invalid because it violates a constitutional provision - Because the First Amendment prohibits laws that abridge freedom of press and speech, each new measure passed by Congress, by state legislatures and even by city councils and township boards must be measured by the yardstick of the First Amendment. - Courts have the right, in fact have the duty, to nullify laws and executive actions and administrative rulings that do not meet the standards of the First Amendment.

Appellate (appeals) courts - Number of U.S. Courts of Appeals & Which Circuit Tennessee is in

- There are 13 circuits of the U.S. Court of Appeals - Tennessee is in 6th Circuit

Appellate courts

- Typically, a panel of 3 judges will hear a case - "Sitting en banc" - When a larger panel of judges, usually 11, will hear an appeal - Means "all sitting together"

Langford v. City of St. Louis (2020) "void for vagueness" doctrine case

- Woman arrested for violating ordinance after women's march for failing to obey order to disperse. -She was standing in a curb lane "for impeding a parking lane." - Court ruled law was overbroad: It prohibited too much speech that was protected (standing in curb lane) and was unclear.

"Writ of Certiorari" - meaning and application

- Write of Certiorari: Discretionary order issued by the court when it feels that an important legal question has been raised. - Granting "cert": Should be requested only after all other legal remedies have been exhausted, Supreme Court orders the lower court to send the records to the high court for review - The Rule of Four: If four of the nine justices think the petition has merit, the writ will be granted (Only 75 to 80 cases a year are accepted)

The outcome of John Peter Zenger's seditious libel trial and the use of "jury nullification." What it means.

- Zenger jailed Nov. 1734 after publishing articles criticizing unpopular colonial governor William Cosby in his newspaper, the New York Weekly Journal. - Although Zenger was clearly guilty under the seditious libel laws in place at the time, a jury acquitted him

"Prior Restraint" - meaning and application

- prepublication censorship - any time the government prevents or limits freedom to publish Ex. courts forbidding publication of materials

Time, place, and manner restrictions - four factors in justifying them under intermediate scrutiny:

1) Rules must be content neutral both on the face and in the manner in which they are applied 2) Law must not constitute a complete ban on one kind of communication 3) Rules must be justified by a substantial state interest against restraint on speech 4) Law must be narrowly tailored to not restrain more speech than necessary to further the stated governmental interest

* First Amendment Theories - #1 Absolutist Theory

Absolutist Theory: - "No Law" means no law; the 1st amendment presents absolute protection against government censorship - Few supreme court justices have adopted this position; no supreme court majority has ever adopted an absolutist position

First Amendment Theories - #6 Access Theory

Access Theory: - Freedom of expression has little meaning if a citizen does not have the economic means to exercise right - If the media will not voluntarily allow the use of airwaves or print, then the government should force such access -Access theory was struck down by the US Supreme Court in Miami Herald vs. Tornillo

* First Amendment Theories - #2 Ad Hoc Balancing Theory

Ad Hoc Balancing Theory: - Compares 1st amendment and balances it with others like search/seizure - When free speech/press rights conflict with other important rights, courts must balance these freedoms with other values - Freedom of expression is determined solely on case-by-case basic

Know how to read a case citation (in the text). We see these at the bottom of nearly every page in the text.

Adderly v. Florida, 385 U.S. 39 (1966) - 1. Case name, (Italicised) - Adderly v. Florida, 2. Volume # of case reporter - 385 3. Abbreviated name of case reporter - U.S. 4. Page # on which report of case decision begins - 39 5. Year case decided (parentheses) - (1966)

"Amici Curiae" - meaning and application, especially in Supreme Court

Amici curiae - "Friends of the court" are allowed to present briefs and are given 30 minutes in the oral arguments

"Historical Myth" about ranking the First Amendment

Because the amendment occurs first in the Bill of Rights it was considered the most important right.

Censorship of college newspapers - Unprotected expression: Bethel School District vs. Fraser (1986)

Bethel School District vs. Fraser (1986): - Unprotected expression - The Supreme Court found that officials at Bethel High School did not violate the free speech rights of Matthew Fraser when they suspended him for making a sexually suggestive nomination speech for a fellow classmate - Court refused to apply the political speech standard in Tinker, ruling that society has an interest "in teaching students the boundaries of socially appropriate behavior" - Court held that schools can punish students who use "offensively lewd and indecent speech" that is "unrelated to any political viewpoint"

Common law - what is another word for it? How are legal rules derived in this system?

Common law is also called judge-made law - Inductive system in which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts - (Judges look to past decisions to make future ones and rely on precedents) - Latin expression for this concept is "stare decisis"

Know when a court may overturn decisions made by agencies like the FCC

Courts may review administrative agency decisions and can overturn a ruling if: - The original act that established the commission or agency is unconstitutional - The commission or agency exceeds its authority - The commission or agency violates its own rules - There is no evidentiary basis whatsoever to support the ruling

Censorship of college newspapers - Protected expression: Dean vs. Utica Community Schools 2004

Dean vs. Utica Community Schools 2004: - Protected expression - A district court judge found that a student-authored article questioning whether school buses were causing injury and illness to local residents was not inaccurate and therefore could not be censored under the Hazelwood "legitimate pedagogical concerns" standard - The judge found the censorship to be unconstitutional viewpoint-based discrimination

First Amendment protection in public forums - Designated public forums

Designated Public Forums: - Places created by the government for expressive activities - City-owned auditorium, a fairground, and a community meeting hall - Some restrictions may be applied - "The government must have an affirmative intent to create a public forum in order for a designated public forum to arise" Intent may be determined by: - Explicit expressions of intent - Actual policy and history of practice in using the property - Natural compatibility of the property with expressive activity

Trial courts & Appellate (appeals) courts: Differences

Differences: Facts vs. Law Trial Courts: Facts - Determine the facts of the case - Courts of first instance - Empowered to consider both the facts and the law in a case Appellate Courts (courts of appeal): Law - Review the factual record established by the trial court - Determine whether the law was properly applied and/or legal procedures are followed - Considers only the law

ETSU 8 case: Know the facts, outcome, and Justice Marshall's dissent

ETSU 8, Protest on campus, 1968 : Norton vs. Discipline, Committee of ETSU - Eight ETSU students were suspended by school officials in 1968 for passing out pamphlets off campus. School officials said the pamphlets, critical of the administration, were inflammatory and untrue. ACLU steps in, 1968 - The American Civil Liberties announced plans to appeal a federal court ruling that upheld the ETSU decision to suspend the eight students. The university's action was upheld in the federal district court and the 6th Circuit Court of Appeals. ACLU sues for ETSU 8, 1968 President's memo - ETSU President D.P. Culp issued a memorandum to students and faculty on May 20, 1970, advising against participation in demonstrations ETSU 8, Supreme Court bows out - The U.S. Supreme Court denied a writ of certiorari to consider the case, which allowed the appellate court decision to stand. Three Supreme Court justices joined in a dissent written by Justice Thurgood Marshall. Marshall dissent in ETSU 8 case - "Officials of public universities wield the power of the State, and in my view they are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content..." - "There is a tendency to lump together the burning of buildings and the peaceful but often unpleasantly sharp expression of discontent. It seems to me most important that the courts should distinguish between the two..." Nixon visits in year of unrest, 1970 - Culminating a contentious year that included student demonstrations to eliminate the ROTC program at ETSU, President Richard Nixon spoke on campus in October.

How federal judges are removed from the bench

Federal Judges: - All are appointed by the president for life terms - Can only be removed by impeachment

Know the 5 guarantees of the First Amendment!

Freedom of: - speech - religion - press - assembly - the right to petition the government

Gitlow v. New York: The incorporation doctrine - meaning and which amendments apply

Gitlow v. New York: - Benjamin Gitlow was charged under a state criminal anarchy law for publishing The Left Wing Manifesto - First Amendment was not in question because his prosecution was not under an act of Congress - At that time freedom of speech was confined to violations of federal law Incorporation doctrine: - Meaning: Gitlow states that freedom of speech is protected by the 14th Amendment - Amendments that apply: The free speech and free press clauses of the First Amendment have been "incorporated" through the 14th Amendment due process clause as fundamental liberties to apply to state and local government entities and officials, not just to Congress

Censorship of college newspapers - Censorship of Expression in Public High Schools: Hazelwood School District vs. Kuhlmeier; 1988:

Hazelwood School District vs. Kuhlmeier; 1988: - Censorship of Expression in Public High Schools - The U.S. Supreme Court ruled that it was acceptable for a school to censor a high school newspaper produced as part of a journalism class if the school's actions are reasonably related to "legitimate pedagogical concerns" - Schools could also censor material that was ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences

"Overbroad" law - meaning and application

Laws can be declared unconstitutional under the overbreadth doctrine: - If the law does not aim only at problems within the allowable area of legitimate government control but also sweeps within its scope other activities that constitute an exercise of protected expression - (Constitutional Law)

"Void for vagueness" law - meaning and application

Laws can be declared unconstitutional under the void for vagueness doctrine: - If a person of reasonable and ordinary intelligence would not be able to tell, from looking at the terms of a law, what speech is allowed and what speech is prohibited, the law will be void because it is too vague and needs to be revised. - (Constitutional Law)

First Amendment Theories - #5 Marketplace of Ideas Theory

Marketplace of Ideas Theory: - This metaphor, first introduced in the Supreme Court by Oliver Wendell Holmes Jr. currently dominates the Supreme Court's discussion of freedom of speech Critics of this theory say: - It allows hate speech with little value to be circulated Those w/ more resources are able to own and control the mass media

First Amendment Theories - #4 Meiklejohnian Theory

Meiklejohnian Theory: - Public speech (Speech or press that advances self-governance) should always be protected by the 1st amendment - Private Speech (Speech or press that addresses anything other than self-governance) Should not be protected absolutely by 1st amendment

* First Amendment Theories - #3 Preferred Position Balancing Theory

Preferred Position Balancing Theory: - looks at the right to protect rights through the sixth amendment - Courts have adopted to balance the rights of free speech and press with the constitutionally guaranteed right of a fair trial.

First Amendment protection in public forums - What are not public forums

Public Property That Is Not a Public Forum: - Public property which is not by tradition or designation a forum for public communication - Public property that is off-limits to expressive activity - Prisons, military bases, and some unencumbered beaches such as the ones in Hawaii Private Property: - Places not owned by the government - An individual's home or a shopping mall - No First Amendment guarantees of freedom of expression exist

First Amendment Theories - #7 Self-Realization or Self-Fulfillment Theory

Self-Realization or Self-Fulfillment Theory: - Speech can be inherently valuable to a person regardless of its effects on others and it can be an end in itself - Example: expressing one's identity through speech

Review First Amendment theories from absolutist to self-realization

Seven First Amendment Theories - 1. Absolutist Theory 2. Ad Hoc Balancing Theory 3. Preferred Position Balancing Theory 4. Meiklejohnian Theory 5. Marketplace of Ideas Theory 6. Access Theory 7. Self-Realization or Self-Fulfillment Theory

Know the other sources of law/distinguish from common law

Sources of the Law: - Common Law - Equity Law - Statutory Law - Constitutional Law - Executive Orders and Administrative Rules

Strict scrutiny standard - meaning and limitations

Strict scrutiny: - Meaning: requires the government to prove a compelling interest, not simply a substantial state interest - Limitations: the statute restricts no more speech than is absolutely necessary to serve that interest

If Time, place, and manner restrictions are content-based or viewpoint-based, they are reviewed under strict scrutiny, a higher standard, instead:

Strict scrutiny: - Requires the government to prove a compelling interest, not simply a substantial state interest - & that the statute restricts no more speech than is absolutely necessary to serve that interest

In what kinds of cases does the Supreme Court have original (exclusive) jurisdiction?

Supreme Court has jurisdiction in disputes: - *Controversies between two or more states* - Controversies between a state and a citizen of another state - Controversies between citizens of different states - The US constitution, US law, US treaties - Ambassadors and ministers, duly accredited of foreign countries - Admiralty and maritime law - Controversies when the US is a party to the suit

Symbolic Speech Doctrine, such as flag burning in public; requirements

Symbolic Speech Doctrine: - Actor: intends to convey a message w/ conduct - Audience: at least some who see the conduct must reasonably understand that message - (Requires witnesses) - Ex. burning a flag in a crowd, nude dancing in a club

The Pentagon Papers case and Supreme Court - why court ruled as it did

The Pentagon Papers in 1971: - High court ruled 6-3 in favor of The New York Times and the Washington Post and refused to block the publication of the Pentagon Papers - The Court did not say the Times and Post had a First Amendment right to print this story, just that the government failed to show the court why such a restraint should be imposed on the two newspapers

"Statutory construction" - what does it mean?

The process of determining what a particular statute means so that a court may apply it accurately (Statutory Law)

Know the tests outlined in Tinker v. Des Moines Independent Community School District, Barber v. Dearborn cases

Tinker vs. Des Moines in 1969: - The United States Supreme Court ruled that students could not be suspended for wearing black armbands to school in protest of the Vietnam War - Students have a First Amendment right to express their opinions on even controversial subjects like the war in Vietnam if they do so "without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others" - Students do not shed their rights at the schoolhouse gate Barber v. Dearborn Public Schools; 2003: - The court, applying the Tinker precedent, found that the request was unconstitutional - noting that "students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others"

First Amendment protection in public forums - Traditional public forums

Traditional Public Forums: - Places devoted to public speeches: street corners, public parks, or a plaza - Highest level of First Amendment protection is given to expression occurring in traditional public forums

Know the 3 examples of judicial decrees in equity law

Typical Remedies / judicial decrees: - Temporary Restraining Order - Preliminary Injunction - Permanent Injunction

Kneeling by athletes during National Anthem: VA v. San Pasqual Valley - recent decision

VA v. San Pasqual Valley (2017) - Federal court in CA issued preliminary injunction stopping a public school district from enforcing a policy that banned students from "kneeling, sitting, or similar forms of political protest" during the National Anthem - U.S. supreme court ruled that Taking a knee in this manner constitutes symbolic expression protected under the First Amendment

"Heckler's Veto" - meaning and how it works

When a crowd or audience's reaction to a speech or message is allowed to control and silence that speech or message

"Jury Nullification"

a jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice or morality

The First Amendment protects against __________ censorship, not __________.

government censorship, not private