media law exam 1

the rule of law

"the legal standards that guide the proper and consistent creation and application of the law means that government in all its actions is bound by rules fixed and announced beforehand--rules which make it possible to forsee with fair certainty how the government will use its coercive powers in given circumstances limits the power of the government because it prohibits government from infringing on the rights and liberties of the people - ensures governmental power to punish those who violate laws

world justice project says four foundations of the rule of law based on internationally accepted universal standards

1. all individuals and private entities are accountable under the law 2. the laws are fair, clear, public and stable 3. the processes by which the laws are enacted, administered and enforced are open, robust and timely for all 4. those who apply the law are competent, ethical, independent, neutral and diverse

Seven elements to prove defamation

1. assertion of fact 2. defamatory (cause harm) 3. identification 4. publication 5. falsity 6. fault 7. damages +actual malice for public figures

two ways to amend the constitution....

1. both chambers of congress to pass a proposed constitutional amendment by a two-thirds vote in each 2. two thirds of the state legislatures to vote for a constitutional convention, which then proposes one or more amendments (proposed amendment must receive a 3/4 majority vote in order to proceed)

Lon Fuller says the rule of law requires eight desired outcomes or "desiderata" to guide how laws should be created and employed...

1. general and not discriminatory 2. widely known and disseminated 3. forward-looking in their application rather than retroactive 4. clear and specific 5. self-consistent and complementary of each other 6. capable of being obeyed 7. relatively stable over time 8. applied and enforced in ways that reflect their underlying intent

points of law three part test for specific court jurisdiction

1. the defendant purposefully conducted activities in the jurisdiction of the court 2. the plaintiff's claim arose out of the defendant's activities within that jurisdiction 3. it is constitutionally reasonable for the court to exercise jurisdiction

4 part test for commercial speech

1. whether the expression is protected by the first amendment. to determine if its protected, the speech must concern lawful activity and not be misleading 2. whether the asserted governmental interest is substantial 3. a court must determine whether the regulation directly advances the governmental interest asserted 4. whether it is no more extensive than necessary to serve that interest

citizens united v FEC

A 2010 decision by the United States Supreme Court holding that independent expenditures are free speech protected by the 1st Amendment and so cannot be limited by federal law. conflict centered less on whether to apply precedent and more on which precedents to apply

bill of rights

The first ten amendments to the Constitution - James Madison attempted to change the text of the constitution to satisfy the request of the democratic republicans

federal court system

US district courts (94) --> US circuit courts of appeals (13) --> surpreme court of US

defamation

a false communication that wrongfully injures the reputation of others libel - written slander - spoken

anti-SLAPP

a lawsuit whose purpose is to harass critics into silence, often to suppress those critics' first amendment rights with anti-SLAPP law, the plaintiff has the burden to show that they will prevail in the lawsuit; otherwise, the suit is dismissed

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

traditional public forum

a publicly owned property thats a place "amendable to wide open expressive use" ex: public parks, sidewalks and areas that have been traditionally open to public speech and debate

concurring opinion

a separate opinion of a minority of the court or a single judge or justice agreed with the majority opinion but applying different reasionsing or legal principle

dissenting opinion

a separate opinion of a minority of the court or a single judge or justice siagree with the result reached by the majority and challenging the majority's reaonsing on the legal basis of the decision

public meetings

applies to any meeting of a public body (elected or appointed groups with policy functions) holding an official meeting (any assembling to serve those functions) minutes requirement - must be written or otherwise recorded and made avialable to the public public notice required - post schedule required (so public knows when meetings are)

distinguish from precedent

asserting that factual differences between the current case and the precedent case outweight similarities

closed meetings

attorney-client privileged information criminal investigation discussions discussion of awards economic development incentives personnel discussions

intentional infliction of emotional distress (damage claim)

being frightened or extremely anxious/nervous *plaintiff must show the emotional injury is so serious or severe that she or he experienced considerable mental pain or anguish

New York times v Sullivan (1964)

civil rights group ran ad in the new york times criticizing the actions of Birmingham, Al officials referenced police action against students engaged in civil rights demonstrations and a leader of the civil rights movement not all the elements of the ad were correct plaintiff (commissioner of public affairs, sullivan) was not named in the ad but he claimed statements in teh ad referred to him because he oversaw police sullivan won $500,000 in damages in lower courts, but US surpreme courts reversed found that public official must prove "actual malice"

not protected in first amendment

clear and present danger fighting words libel and slander obscenity conflict w legitimate social/gov't interests time/place/manner

constitutions (state and federal)

constitutional law establish nature, functions and limits of government

hierarchy of state court system

county --> special court --> superior court --> court of appeals --> state supreme court

rule of stare decisis

courts should follow each other's guidance -- once a higher court has establishes a principle relevant to a certain set of facts, fairness rewuires lower courts to try and apply the same principle to similar facts

apply precedent

decision of a higher court binds lower court rulings

legislative branch

enacts laws the senate and the house of reps pass laws

judicial review

established in Marbury v madison case -- the court can strike down laws deemed to conflict with the US constitution

supremecy clause

establishes the US constitution as the "supreme law of the land" (federal law takes precedence over state law)

US constitution establishes three branches of the federal government

executive, legislative and judicial provide government a level of chaecks and balances

political speech

expression associated with the normal conduct of a democracy -- supreme court is reluctant to restrict it

commercial speech

expression intended to generate marketplace transactions -- supreme court has recognized a public interest in restricting it, but has granted it limited first amendment protection

non-forum

far fewer first amendment protections ex: airport terminals and polling places

Chaplinsky v New Hampshire (1942)

first amendment did not protect narrow categories of speech that make no contribution to the dicussion of ideas or the search for truth

the forum doctrine (publily owned property)

framework developed by the US supreme court to help courts decide when and if speech interferes with the intended use of public property what is a forum -- it can be a physical space (student newspaper, yearbook) OR it can be a metaphysical space (student election system)

content neutral law

government actions that unintentionally or incidentally affect speech trying to advance other gov't interests unrelated to the content of speech intermediate scrutiny is applied by the courts typically involve time, place and manner issues

designated public forum

government property "can sometimes be designated for communicative use by memebrs of the public" once its named a designated forum, it gets the same extra-strength legal protection as speech in a park or in anotehr traditional public forum

overbraoad law

if a law restricts more legal activity than necessary, courts must find it unconstitutional

negligent infliction of emotional distress

if one person carelessly causes another emotional harm, the injured person may sue using tort called negligent infliction of emotional distress must prove: - the defendant had a duty to use due care - the defendant negligently breached that duty - the breach causes the plaintiff's injury - the breach was to proximate cause of the plaintiffs severe emotional distress

judicial branch

interprets laws and resolves legal conflicts three levels of courts review laws and adjudicate disputes

common law

judge made law composed of the principles and traditions established through court rulings; precedent-based law often arises when a situation isn't covered expressly by statutes not written down in one place; it consists of a vast body of legal principles and precedents

equity law

law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy

clear law

laws that define their terms and details its application they limit the government's discretion when it comes to determining how to apply the law

vague laws

laws that fail to determine their terms or use language so general that it fails to inform citizens or judges with certainty what the laws permit or punish whats legal? what's not?

strict construction

narrow interpretation and application of a law based on the literal meaning of its language -- esp applied in interpreting the constitution

penalties for violating meeting laws

nullification of action from meeting taken (as if the meeting never occurred) attorney's fees remember = it's a misdemeanor to disrupt a public meeting in NC

executive orders

orders from a government executive such as the president, a governor or mayor that have the force of law changes in executive orders impact the operations of the executive agencies that implement the changes often targeted by political opponents; claim circumvention of congress

executive branch

oversees government and administers, or executes, laws president, the cabinet and the administrative agencies execute laws

plaintiff

person who is claiming that they have been defamed

jurisdiction

refers to a court's authority to hear a case the geographic or topical area of responsibility and authority of a court general = site is an individuals hom's or corps headquarters (court may hear any claim against the defendant) specific = suit ust relate to the defendant's contacts with that forum

content based law

regulate what's being said (ideas, subject matter, position) presumed to be unconstitutional -- trying to limit speech and the free low of info strict scrutiny is applied to determine constitutionality MUST use the least restrictive means to advance a compelling interest

5 freedoms under first amendment

religion, speech, the press, assembly, to petition

original intent

some judges look at perceived intent of the framers

ad hoc balancing

some judges make decisions according to specific facts of a case instead of more general principles

categorical balancing

some judges weigh broad categories to create general rules

limited purpose public figure

someone who is not so famous as to be a household name, but who has become well known with regard to a particular issue ex: a businessperson who has high visibility becasue of fundraising efforts in a community *if someone defamed them in their role as what they do for their fundraising role, they have to prove actual malice, but if they were defamed outside of this role they wouldn't have to

actual malice

statement made with knowledge of its falsity or with reckless disregard of whether it was true or false

US supreme court provided two criteria for determining existence of a forum

the "policy and practice" of the agency that operates the property the "nature of the property and its compatibility with expressive activity

duty of due care

the defendant should have foreseen that negligence could cause harm to the person or people to whom he or she owned a duty

stare decisis

the doctrine courts follow precedent; the basis of common law, it literally means to stand by the previous decision

administrative law

the orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties admin agencies (FEC, FTC) create rules, regulations, orders and decisions that execute or carry out laws enacted by congress

precedents

the outcome of a previous case establishes a rule of law for courts within the same jurisdiction to follow when hearing cases with similar issues. at the heart of common law and helps to slow down changes in laws

world justice project adds one more requirement to the rule of law....

those who apply the law are competent, ethical, indepdendent, neutral and diverse

modify precedent

to alter the precedent to respond to changed realities -- contemporary attitudes and practices no longer support

overturn precedent

to reject the fundamental premise of a precedent -- radical step and generally occurs only to remedy past errors or to reflect a fundamental rethinking of the law

virginia state board of pharmacy v virginia citizens consumer council

virginia law prohibited pharmacists from advertising prescription drug prices prescription drug consumers challenged the statute; they felt it violated the first amendement and that they had the right to receive info regarding drug prices supreme court ruled the statute unconstitutional

Central Hudson Gas & electric v Public service commission of NY

winter of 1973 NY state had an electricity shortage -- needed citizens to conserve energy the PSC of NY ordered all electricity companies to stop advertising that promoted the use of electricity shortage ended in 1976 but the ban continued- central hudson took to court supreme court found the ban was unconstitutional (established a four part test for commercial speech)

statuatory laws

written laws (black letter) formally enacted by city, county, state, and federal legislative bodies black letter law is formally enacted, written law that is available in legal reporters or other documents laws pertaining to criminal activities, copyright, broadcasting, advertising, and access to gov't meetings and information are statutory laws made to respond to and/or prevent social problems