MMC LAW 3200 TEST REVIEW

What are the conditions for Time, Place, and Manner restrictions?

-They must be content neutral -They must be applied universally

What are two ways to argue a statute violates the First Amendment:

1. Attacking problems with its wording, terms, and language. 2. Attacking problems with its actual application to a particular scenario.

When can courts overturn the ruling of administrative agencies?

1. If the original set that established the committee or agency is unconstitutional 2. If the commission or agency exceeds its authority 3. If commission or agency violates its own rules 4. If there is no evidentiary basis whatsoever

What is the order of superiority of U.S. Courts?

1. Supreme Court 2. District Courts of Appeals 3. Circuit Courts 4. County Courts

What are some remedies in Equity Law?

1. Temporary Restraining Order 2. Preliminary Injunction 3. Permanent Injunction

Federal courts hear cases involved with:

1. U.S. Constitution, U.S. Law, U.S. treaties 2. Ambassadors and ministers 3. Admiralty and maritime law 4. Controversies when U.S. is a party to the suit 5. Controversies between state and a citizen of another state. 6. Controversies between two or more states 7. Controversies between citizens of different states

What are some implications of Personal Injury Liability?

1. Was a reasonably foreseeable risk of injury created by the communication? 2. Did injury occur? 3. Was the careless communication an approximate cause of the injury 4. Did the injury actually incite harmful conduct?

What is a heckler's veto?

A heckler's veto is when a crowd or audience's reaction to a speech or message is allowed to control and silence that speech or message.

What is the hunch theory of jurisprudence?

A judge decides a case based on a gut feeling of what is right and wrong and then seeks out precedents to support decision.

What is the bottom line?

A law is unconstitutional if it restricts more communication than necessary to achieve its purpose. If a less restrictive alternative is available then the law is considered over-broad.

What is void of vagueness?

A law will be declared unconstitutional and struck down if a person of reasonable and ordinary intelligence would not be able to tell, from looking at at its forms, what speech is allowed and what speech is prohibited.

Aspects of Criminal Cases:

Case Brought By: Government Remedy: Fine/Prison Burden of Proof: Beyond Reasonable Doubt Common Examples: Obscenity

Aspects of Civil Cases:

Case Brought By: Injured Party Remedy: Compensation Burden of Proof: Preponderance of evidence Common Examples: Most Cases like Libel or Copyright

What is common law?

Common law is the collection of hundreds of thousands of decisions handed down by courts over centuries.

What is the chilling effect?

Communicators censor themselves and don't say things that would be protected speech simply because they don't know what will be protected and what won't be.

What is the First Amendment ?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably assemble, and to petition the government for a redress of grievances.

What is punishment after the fact?

Courts wait till after the fact to punish the producer.

What is symbolic speech?

Covers actions that are primarily designed to express an idea rather than physically impact someone.

What is seditious libel?

Criticizing the government

What are trial courts?

Fact-finding courts

What is the Meiklejohnian Theory?

Freedom of expression is a means to an ends. (self-government)

What is the Preferred Positioning Balancing Theory?

Giving freedom of expression a preferred position presumes that government action that limits free speech and free press to protect other interests is usually unconstitutional.

What is the Balancing Test?

Government can restrict expression based on two things: 1. Show that it has a very good reason to do so 2. Restrict no more expression than necessary to address its overriding

Why is compelled speech restricted?

Government cannot compel people to speak

Plurality Opinion:

In cases where no single opinion is signed by five or more justices, the opinion with the most signatures is called the plurality opinion.

What is the Access Theory?

It is a constitutional guarantee of freedom of expression

What does speech need to be protected by the First Amendment?

It requires a compelling reason.

What is statutory construction?

Judicial interpretation of ambiguous words and phrases.

What are appellate courts?

Law-reviewing courts

Per Curiam Opinion:

Opinion or precedent is made by the court or judicial decree.

What are executive orders?

Orders issued by elected officials

What is the Ad Hoc Balancing Theory?

Responsibility of the court to balance freedom of expression with other values.

What are administrative rules?

Rules generated by administrative agencies.

What is a judicial decree?

Rulings made in equity law

What is the Self-Realization/Self-fulfillment theory?

Speech is important to an individual regardless of its impact on politics or its benefit to society at large.

What is the Bradenburg Incitement Standard?

Standard established in Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. The standard developed determined that speech advocating the use of force or crime could only be proscribed where two conditions were satisfied: (1) the advocacy is "directed to inciting or producing imminent lawless action," and (2) the advocacy is also "likely to incite or produce such action."

What does the 1st Amendment apply to?

The First Amendment applies to all levels of government, speech not behavior, and speech that is defined broadly.

What is jury nullification?

The power of a jury in a criminal case to ignore a law and to return a verdict according to its conscience.

What is the problem with licensing?

The problem with licensing is that courts wait until after the fact to punish the producer.

How many different judicial systems are there in the United States?

There are 52 different judicial systems in the United States, one for the federal government, and one for each of the 50 states, plus the District of Columbia

Concurring Opinion:

This is an opinion signed by justices who voted on the same side as the majority but who did so for different reasons. In other words, some justices might believe the majority came to the right decision for the wrong reasons.

Dissenting Opinion:

This is an opinion signed by one or more justices on the losing side of the vote. Although it carries no weight of precedent, the dissenting opinion allows the losing side to explain what they think the majority got wrong.

Majority Opinion:

This is an opinion that is signed by at least five justices. In other words, these justices not only agreed on which side should win but they also agreed on WHY that side should win. This is the most important opinion because it's the only opinion that carries the weight of precedent. In other words, the court is more or less obligated to decide similar cases in the exact same way because it should apply the same logic.

What were the Alien And Sedition Acts of 1798?

This law forbade false, scandalous, and malicious publication against the U.S. government, Congress and the President.

Why are vague laws problematic?

Vague problems are problematic because they don't provide fair notice of what speech is permitted, and can be enforced unfairly and discriminatorily because they give too much discretion to those who enforce them.

What is sitting on banc.?

When a larger panel of judges hears a case

What is direct appeal?

When a litigant has an apparent right, guaranteed by federal statues, to appeal a case to the Supreme Court.

What is prior restraint?

When the government restricts publication beforehand

When government restrict speech?

When there's a compelling reason to do so, and when the law doesn't restrict any more speech than needed to solve the problem.

What is the over-breadth doctrine?

a law is over-broad if it does not aim only at problems within the allowable area

What is the Sedition Act?

an Amendment to the Espionage Acts, this law passed making it a crime to attempt to obstruct the recruiting service.

Memorandum Order:

court announces vote w/o giving an opinion

What is writ of certiorari?

discretionary order issued by the court when it feels that an important legal question has been raised.

What are statutes?

laws that deal with problems affecting society or large groups of people, in contrast to common law, which usually deals with smaller, more individual problems.

Who is the defendant?

party against whom the suit is brought.

Who is the plaintiff?

party who commences or brings a civil lawsuit.

What is the marketplace of ideas?

repugnant speech should be countered by speech rather than government censorship

What is the judicial review?

right of any court to declare any law or official government action invalid because it violates a constitutional provision.

What is the absolutist theory?

the government cannot censor the press for any reason. No exceptions, no caveats, and no qualifications.

What is the Espionage Act ?

the law provided that it was a crime to willfully convey a false report with the intent to interfere with the war effort.