SMAD 370- Test 1

Near v. Minnesota (Prior Restraint)***

***one of first cases to use prior restraint -Near published Saturday Post, claimed Jews were in charge of organized crime -feature was prohibited and called "scandalous matter" ***This is the first time USSC declared a state's prepublication statute as unconstitutional; thus, declaring all prior restraints as unconstitutional

Common Law

-"stare decisis" -developed in England 200 years after Norman conquest -court based law

Cox Broadcasting v. Cohn (Prior Restraint)

-A TV station reports the name of a rape victim which was in violation of a Georgia statute -heard the name in an open court where the trial was ***USSC ruled a state does not have the right to punish the media if the information is obtained in an open court room.

U.S. v. Progressive (Prior Restraint)

-A federal judge stops Progressive from publishing an article how to build an H-bomb (based on public information) -Violates Atomic Energy Act ***Fed. gov't drops suit after info similar to the Progressive's article is published elsewhere -Gov't is successful in restraining the publication and ultimately altering the content of the article

Hazelwood School District v. Kuhlmeier (First Amendment)

-A principal censors an article about teen pregnancies and divorce from a student newspaper ***Is this prior restraint by the principal? -USSC decides that public high school principals can censor high school newspapers -"High school students have less rights than other citizens -This doesn't apply to college students!!!

Florida Star v. BJF (Prior Restraint) ***

-A reporter-trainee acquires BJF's (robbed and sexually assaulted) name from a press release, publishes in violation of a state statute ***USSC rules that a media defendant cannot be punished for lawfully gained information (rules with Florida Star) -However, if the statute was drawn more narrow, then the media could be punished for publishing truthful information

Arkansas Writer's Project, Inc. v. Ragland (Prior Restraint)

-Arkansas imposed a sales tax on general circulation of magazines, but NOT religious, professional, trade, or sports journals (prior restraint) ***Discriminating against non religions, trade and sports magazines

Citizens United v. Federal Election Commission (First Amendment)

-Bipartisan Group moved to have Hilary Clinton movie not advertised or shown within 30 days of Dem. primaries -Ruling: The USSC ruled against the prohibition. ***USSC held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. --->Corporations are the same as citizens

Chaplinsky v. New Hampshire (Two-tiered)

-Chaplinsky stands on soapbox yelling at passersby, deputy tries to stop him, calls deputy bad things, fighting words charge added -Convicted, says his words should be protected, USSC denies him ***Fighting Words Doctrine: words that create physical reaction will not be protected (obscene, defamation)

Anthony Comstock

-Comstock Act (1873): illegal to use federal mail system to distribute pornography/obscenity

Zoning Requirements (Obscenity)

-Concentration Zoning: take all sex toy shops and put them in one isolated location -Dispersal Zoning: spread out sex toy shops and keep them away from certain places (schools, churches, libraries, etc.)

Dennis v. US (Evil Tendency)

-Dennis was a communist in 1954, USSC upholds ruling under the Smith Act -Smith Act says we're going to repress anyone who advocates fascism

ACA v. Douds (Balancing)

-Doud goes to speak at ACA building, but has to sign a loyalty contract -Doud says that's limiting his speech ***ACA wins, private companies can set their own rules

Regina v. Hicklin (Obscenity)

-English litigation -Distribution of immoral publication -Prosecuted under Obscene Publication Act of 1857 ***created Hicklin Test to determine obscenity

Gitlow v. NY (1925)

-Gitlow writes left-wing manifesto to overthrow gov't -Gitlow ruled against **court used 14th amendment to due process to say citizen has rights given to them by constitution

Postal Regulations (Obscenity)

-Goldwater Act -Card can be filled out making sure sexually explicit materials are not sent somewhere

Grosjean v. American Press (Prior Restraint)

-Governor got larger taxes put on publications with a larger circulation (because they didn't support him) ***Deemed prior restraint because they were restricting the dissemination of information

Brandenburg v. Ohio (Clear & Present Danger)

-KKK meets and invites TV reporter; Grand Dragon gives speech threatening members of congress -gets convicted for anarchy statute -USSC reverses decision, change C&PD to "imminent lawless action likely to succeed" they were not likely to succeed

Kovacs v. Cooper (Preferential Position)

-Kovacs owns a soundtruck, Cooper (representing NJ) says it disturbs his privacy -Kovacs loses for violating sound ordinances, he appeals saying this is a violation of 1st amendment rights -preferential position: higher regards to 1st amendment than other rights (?)

Miami Herald v. Tornillo (First Amendment)

-Miami Herald refuses to publish a reply to the paper's criticism of Tornillo, a candidate for state legislature -Equal Access Law: If Dems and Repubs advertise, they need to have equal ability to do so (right of determinative) ***USSC holds that newspapers have stronger 1st Amendment rights than electronic media

Miller v. California (Obscenity) ****

-Miller convicted for conducting a mass-mailing campaign to advertise four books and a film containing sexually explicit pictures and drawings ***Miller test NOW identifies what is obscene

Minneapolis Star & Tribune v. Minn. Commissioner of Revenue (Prior Restraint)

-Minnesota taxes papers that use large amounts of ink and paper ***couldn't discriminate based on their size, prior restraint

Morison v. US (Prior Restraint)

-Morison, Navy analyst, convicted of violating Espionage Act of 1917 after passing on a secret satellite photo of a Soviet aircraft carrier to a magazine ***Gov't may punish an individual for leaking national security information to unauthorized persons at peace-time

Evil Tendency (First Amendment Interpretation)

-Most Repressive -just the thought of something like this happening sucks so much that it needs to be repressed

Miller Test (Obscenity)

-New Test: SLAPS (Serious Literary Artistic Political Scientific value) -Average person applying contemporary community standards, taken as a whole appeals to prurient interests, work is patently offensive

R.A.V. v. City of St. Paul (First Amendment)

-RAV burns a cross inside a fenced yard of a black family -He is charged under a city ordinance against hate crimes (could've/should've prosecuted for arson and trespassing) ***See: fighting words/Chaplinsky -USSC declares a city ordinance which was based on "race, color, creed, religion, or gender" fighting words was unconstitutional content regulation

Roth v. U.S. & Alberts v. California (obscenity)

-Roth convicted for mailing an obscene book, circular, and advertising -Alberts was convicted for the distribution of obscene books in California ***USSC ruled that obscenity must be determined by the average person, as a whole, and obscenity is utterly without redeeming social value -Hicklin is now DEAD (null and void)

Display Laws (Obscenity)

-Sexually explicit magazines are displayed or hidden in stores (check IDs, limit sale)

Snepp v. US (Prior Restraint)

-Snepp (former CIA) publishes novel divulging secret CIA info, without telling CIA first (he had signed a contract saying he would tell these things before, signed away 1st amendment rights) ***Nondisclosure employment contracts are not a prior restraint and are not unconstitutional.

Texas v. Johnson (First Amendment)

-Statutory Construction: coming up with words not in the Constitution -State of Texas has a law against flag desecration -Johnson burns a flag in protest at RNC in Dallas ***USSC ruled that flag burning is covered under freedom of symbolic speech

Prior Restraint Options

-Stopping of information -In essence: if the court wants to restrain you and provides an injunction (TRO), you have two options 1) Violate, be held in contempt of court 2) Use court process and appeal injunction

Constitutional Law

-Supreme law of the land -"Congress shall make no law..." -First Amendment (freedom of religion, press, speech, assembly) -Due Process -USSC has final rule over what is constitutional

Landmark Communication, Inc. v. Virginia (Prior Restraint)

-The Virginian Pilot publishes the name of a judge being investigated for misconduct -This violates a state law -Prevents media from publishing info about judges (discriminatory/prior restraint) ***Everything about this is discriminatory, unconstitutional, and a prior restraint

Smith v. Daily Mail Pub. Co. (Prior Restraint)

-Two newspapers identify a 14-year-old who shot and killed a classmate at a junior high school. Violates a WVA statute -Electronic media CAN name a juvenile, print CAN NOT (discriminatory) ***USSC rules WVA statute is overbroad because it only singles newspapers, interest of highest order

Whitney v. California (Clear & Present Danger)

-Whitney goes to Communist Convention that calls for economic revolution -convicted under Anarchy statute -upheld under C&Pd -later pardoned saying they needed more free speech, not less

Yates v. US (Evil Tendency)

-Yates is a communist, convicted under Smith Act -USSC reverses decision ***Smith Act no longer rules against communists - they differentiate between 1) advocacy of abstract doctrine- theoretical discussions are protected by the 1st amendment 2) advocacy of action- not protected by the 1st amendment

Definitional (Balancing)

-apply a certain instance to future instances (long term) -being consistent

Self Regulation (Obscenity)

-ask businesses to display discretion (doesn't really work)

Blackstone (England)

-creates stare decisis -argued against prior restraint -doesn't mean you're protected from what you say, you still have to suffer the consequences

Statutory Law

-decided by legislative branches -Federal law v. State law -Found in code books (State codes & US codes) -anticipates/reacts to problems

VA Supreme Court

-final level of state court (stenographer) -7 judges, 12 yr. terms

Absolutist (First Amendment Interpretation)

-follows what the law initially says to a T "congress shall make NO LAW" Hugo Black, Meicklejohn

Patently Offensive

-hard-core sexual conduct.

Milton's "Aeropagetica"

-have truth grapple with false statements -don't silence the whackos because they could be right, and everyone else might not know the truth -silencing them is like prior restraint

Meicklejohn (Absolutist)

-if your speech is political speech, its absolutely protected; balance rights for all other communication -two types of speech: political (protect at all costs) and all others (come up with different ways)

Marketplace Approach to 1st Amendment

-just because there's something you don't like at the market doesn't mean you try to get rid of it, you just don't buy it

Administrative Law

-laws created by administrative agencies (SEC, FCC, FTC) -admins. have final adjudication of law

Prurient Interests

-lustful thoughts or sexual desires.

Court Opinions

-majority -concurring -dissenting -per curiam -memorandum

Schenck v. US (Clear & Present Danger)

-member of the socialist party, distributed flyers that told people not to register for the draft -convicted by the Espionage Act of 1917 (inhibiting war efforts) -he appeals saying there's no evidence of his flyers having any affect on anyone ***creates Clear & Present Danger (Oliver Wendell Holmes)

Balancing (First Amendment Interpretation)

-more repressive -balancing 1st amendement rights vs. other rights

Bad Tendency (First Amendment Interpretation)

-more repressive -this disruption to our society may have an unsettling effect and therefore shouldn't be upheld by 1st amendment -allow regulations in this case **Gitlow v. NY: speech can disrupt society

Law of Equity

-old school England "Do the right thing for the love of God" -no stare decisis -no germane definition based on past court decisions

Executive Actions

-president makes decisions and hands down executive orders -president exercises powers over court appointments (USSC, Appeals, District courts)

Zenger (1733)

-printer who defamed gov. told to stop printing, didn't -lawyer told the jury to determine the truth of the article -truth as a defense

Stamp Act

-prior restraint when gov't would deny stamp on items that criticized gov't. -scared others from even trying, stopped the spread of gov't criticism

Ad Hoc (Balancing)

-rule on one persons's rights -case by case

Alien & Sedition Act

-said it was illegal to criticize gov't -shot down in 1883 when Jefferson was elected president

Locke

-same as Mills Allow Discourse to Occur

Croswell (1800s)

-same as Zenger -convinced NY state to pass truth law -empowers juries

Juvenile & Family Relations Court

-second level of state court -no outsiders let in -deals with divorce, adoption, kids (bullying, sexual assault, vandalizing) -records are sealed after 21

General District Court

-second level of state courts (no stenographer) -traffic court -if you lose here, you can appeal to circuit courts

Interest of Highest Order

-somewhere down the road, they could envision a statute that would say there's great priority in keeping something secret, and that would beat out prior restraint; there would be something so important that it would be more important (keeping certain info quiet)

Abrams v. US (Clear & Present Danger)

-soviet students distribute flyers to boycott ammunition plants -convicted with Espionage Act and C&PD -Oliver Wendell Holmes dissents saying C&PD is being misapplied, marketplace

Two-Tiered (First Amendment Interpretation)

-there are words that are protected and words that aren't protected -protected: Westboro Baptist Church, burning flags -not protected: obscene, child pornography, copyright, fighting words

Circuit Court

-third level of state court (stenographer) -trial court -fact finding

Mill's "On Liberty"

-truth has no chance if it's silenced

Clear and Present Danger (First Amendment Interpretation)

-what one is doing presents something that may result in being dangerous to society

Hicklin Test

1) Isolated passage: one passage deems the entire work as obscene (i.e- one sentence, one paragraph) 2) Susceptible person: if this could fall in the hands of a person and they would be influenced by the material

Common Law Options

1. Accept precedent & rule the same 2. Modify the precedent to be contemporary 3. Distinguish precedent 4. Court can overrule precedent 5. Ignore precedent

6 sources of law

1. Constitutional 2. Statutory 3. Administrative 4. Executive Actions 5. Common Law 6. Law of Equity

Magistrate

bottom of state court system (no stenographer) -establish bail -search warrants -first person you see

Crimes against habitation

burglary (breaking in with intent to steal) arson

Stare Decisis

court precedent, previous decisions by the court used to keep consistency

Crimes against public peace

criminal libel

Writ of Certiorari

decision by USSC to hear an appeal from lower court

Amicus Brief

friend of the court

Memorandum

just the vote, no reason

Crimes Against Person

murder manslaughter

De Novo

new trial at appellate level, needs more evidence

Crimes against sovereignty, justice & authority

nuisance law tax evasion public indecency noise ordinances

Civil Court Citation

person v. person

Fifth Amendment

protection against prior restraint & national security and Grand Jury.

Overrule

rejecting the decision of lower level court doesn't uphold conviction

Sixth Amendment

right to a speedy trial

Remand

send back to lower court for action

Criminal Court Citation

state v. person

Crimes against property

thefts larceny

Per Curiam

unsigned opinion, quicker way to handle a case, decision based of briefs

Affirm

upholding the ruling of lower level court

Crimes against morality & decency

vagrancy pan-handling

Dissenting Opinion

voted with minority opinion, writing opinion for the future reference of court

Majority Opinion

winning opinion

Fourteenth Amendment

DUE PROCESS OF LAW: right to an appeal, right to a fair trial, have to be able to understand the system before you can appeal to the court

Prior Restraint

Government restrains media from releasing news stories

First Amendment Interpretation Continuum

More Freedom: Absolutist Middle: Clear & Present Danger Less Freedom: Evil Tendency

New York Times v. US (Prior Restraint)***

PENTAGON PAPERS *6-3 decision (9 opinions written) ***First time the US Government filed an injunction against a newspaper. ***the USSC determined that the US Gov. had not met its burden of proof to prior restrain the press.

Concurring Opinion

agrees with majority but writes a different opinion

En Banc

all judges hear case

Collateral Bar Rule

a party against whom an injunction is issued must obey that order until it is dissolved or reversed on appeal - the defendant can not claim in a contempt of court proceeding that the order he violated was invalid.