MASS MEDIA LAW EXAM 1

Explain Schenck v. United States and the impact it had on future sedition law.

"Avoid the draft" >> Violation of espionage act Impact on sedition law: The question in every case is whether the WORDS USED are in such circumstances that would create a clear and present danger that they will bring about substantial evils that Congress has the right to prevent

Frederick v. Morse (2007)

"Bong Hits 4 Jesus" SC 9th Circuit supported schools decision to suspend Frederick for banner because "schools make take steps to safeguard students from explicit speech" Ruling narrow and limited, the court in Morse did not overrule Tinker, Hazel, or Bethel; those decisions remain intact

Chaplinsky v. New Hampshire (1942)

"Fighting words" are not protected by the First Amendment 9-0 vote > Fighting words doctrine

Ad Hoc

"Freedom of expression" is considered on a case by case basis

Stare Decisis

"Let the decision stand" - Decisions are based on precedents from previous cases

Explain why the 14th Amendment has been an integral part of Incorporation and other first amendment cases

- After the passage of the 14th Amendment, the SC favored a process called "selective incorporation". - Under selective incorporation, the SC would incorporate certain parts of certain amendments, rather than incorporating an entire amendment at once

Why have lawsuits seeking the banning of dissemination or creation of violent video games never been successful?

- Brandenburg test set the standard - You must prove that the violent video game in question is: 1. Inciting or producing imminent lawless action 2.. Likely to incite or produce this action *Hard to prove

Explain Brandenburg v. Ohio and how it resulted in the Brandenburg Test

- Final decision on political speech - Brandenburg gives speech at KKK rally, and burned a cross, and portions of that speech ended up on TV - After aired on TV, Brandenburg arrested and charged for promoting violence as a means for social change + $1000 + 1-10 years in prison - Appeals to the SC, who reversed the lower courts decision because since it was a political speech, it is protected by the First Amendment right

Explain precedent and relevance to law making:

- Helps build predictability and consistency into the law - Fosters judicial legitimacy. - Courts perceived as more legitimate if they are predictable and consistent in their decision making process - Rarely is a court presented with only one precedent

Explain the concept of jury nullification and how it relates to the trial of John Peter Zenger in 1734.

- Jury nullification: the power of a jury in a criminal case to ignore a law and return a verdict according to its conscience (typically not guilty) - John Peter Zenger: jailed to silence him after he published the New York Weekly Journal of several stinging attacks on William Cosby (a political opponent) - Attorneys convinced jury that "no man should be imprisoned or fined for publishing criticism of the gov that was both truthful and fair" - Acquitted Zenger - Important triumph in politics but did nothing for the legal precedent >>>Caused many angry people to see the abuse in control from the govt and the press

What is a court of limited jurisdiction?

- Lowest level courts - Judges have limited power and limited category of problems to discuss

Near v. Minnesota and prior restraint laws

- Near and Guilford debated that 1925 Minnesota Public Nuisance Law violated freedom of speech >> Convicted of violating the so-called "gag law", they then appealed to the Supreme Court - Supreme court struck down a state law allowing prior restraint as unconstitutional - Near v. Minnesota stands for the proposition that under American law prior censorship is permitted only in very unusual circumstances; it is the EXCEPTION, not the rule

Barber v. Time

- Newspaper published a picture and story about a 12 year old girl that gave birth. - Parents sue for invasion of privacy - Missouri court ruled that to photograph a patient in a hospital room against their will and then publish a story on them is in fact invasion of privacy - Concept of Importance: Precedent

From when the printing press first became widespread through 1776, how did the British Crown policed publishers?

- Printing developed during a period of religious struggle in Europe. - Printing presses made communication with hundreds of people easy - Gave power to small groups or individuals who owned or could use a press - The British government realized that unrestricted publication and printing could dilute its power. Information is a potent tool in any society, and those who control the flow and content of information exercise considerable power - The printing press broke the Crown's monopoly of the flow of info, and therefore control of printing was essential Between 1476 and 1776 the British used several means to limit or restart the press in England

Petagon Papers Case

- Secret report documents of evidence of the govt lying about the reasons the war is being fought and the probability of success - Daniel Ellsberg, Pentagon Analysis, doesn't believe Nixon and starts sharing docs to the NY Times - NY Times debate on publishing them, never happened before "What right do they have/don't have?" - Sunday, June 13 1971, NY Times starts releasing document series, lands in federal court under the "risk of national security" - After landing in SC, ruling was: Govt failed to prove case to court and ban on publication was presumed to be unconstitutional to the First Amendment. - ***FIRST TIME US GOVT ENTERS THE COURTROOM iN HISTORY + THAT A NEWSPAPER IS PREVENTED FROM PUBLISHING A STORY - FOR WIKILEAKS/MODERN CASES: PLANTIFF MUST SHOW WHY IT IS NOT A VIOLATION OF THE FREEDOM OF THE PRESS A minor victory for the press, for it did little legally to strengthen First Amendment protections

Lawrence v. Texas, 2003

- State laws making sodomy (gay sex) a crime VIOLATES equal protection clause (fails rational basis test because only possible reason for law is homophobia) - Concept of importance: overruling precedent

What is the Bill of Rights and when was it ratified?

- The first 10 amendments to the United States Constitution - Ratified December 15, 1791 - Created to address objections raised by anti-federalists - Incorporation by the 14th Amendment, 1868 - Guarantees of personal freedoms and rights - Clear limitations of the government's power - Specification that powers not explicitly delegated to Congress are reserved for the states or the people

What does it take to change the Constitution of the United States?

- Very difficult 1. An amendment may be proposed 2. Amendments must be approved either by 3/4th of the state legislature or by 3/4th of the constitutional conventions called in all the states 3. Congress decides which method of ratification or approval is to be used

Options concerning precedent

1. Accept/follow: adopt precedent and follow it for guidance 2. Modify/update: modification of the precedent in order to have it correspond more accurately with circumstances or society 3. Distinguish: identify the differences from current cases if facts or issues are not the same 4. Overrule: declare that the prior decision was wrong and thus no longer law.

List the two elements that must be satisfied in order for courts to treat conduct as speech.

1. Actor: the person engaging in the conduct must intend to convey a particular or specific message with their conduct 2. Audience: there must be a great likelihood that the ppl who witness it will reasonably understand the particular message that was intended by the actor

7 first amendment theories

1. Ad Hoc Balancing Theory 2. Absolutist Theory 3. Preferred Position Balancing Theory 4. Meiklejohnian Theory 5. Marketplace of Ideas Theory 6. Access Theory 7. Self-realization Theory

How does a case get into the federal court system, as opposed to the court system in the state where the plaintiff originated the suit?

1. Cases that arise under the US Const, US law and US Treaties 2. Cases that involve ambassadors and ministers, duly accredited, of foreign countries 3. Cases that involve admiralty and maritime law 4. Cases that involve controversies when the US is party to the suit 5. Cases that involve controversies between two or more states 6. Cases that involve controversies between citizens of different states 7. Cases the involve citizens of different states

What are the types of speech that fall outside the scope of the First Amendment?

1. Child pornography involving real minors, as well as obscenity 2. Fighting words 3. Incitement to violence 4. True threats of violence 5. Certain types of libelous statements 6. Advertising that is false, misleading or about an unlawful product or service

List and explain the five sources of the American legal system

1. Common Law 2. Equity Law 3. Statutory Law 4. Constitutional Law 5. Executive Law and Administrative Rules

Intent

1. Explicit expressions of intent 2. Actual policy and history of practice in using the property 3. Natural compatibility of the property with the expressive activity

What five freedoms does the First Amendment guarantee?

1. Freedom of Religion 2. Freedom of Speech 3. Freedom of the Press 4. Freedom to Assemble Peacefully 5. Freedom to Petition the Government for a Redress of Grievances

Courts overturning executive orders

1. If the original act that established the commission or agency is unconstitutional 2. If the commission or agency exceeds its authority 3. If the commission or agency violates its own rules 4. If there is no evidentiary bias whatsoever to support the ruling

List and explain the types of Supreme Court opinions

1. Opinion of the Court 2. Concurring Opinion 3. Dissenting Opinion 4. Plurality Opinion 5. Per curiam 6. Memorandum Opinion

Executive Orders and Administrations

1. Orders issued by elected officers 2. Rules generated the administrative agencies of government, at the federal, state, and local levels - Varies widely from city to city or state to state - Laws that go beyond Congress' knowledge

4 Rules of Prior Restraint (Rule 1)

1. Prior restrains on speech by the government are presumptively unconstitutional. The burden falls on the government to prove in court that a prior restraint is justified

Methods used by the Crown to police publishers:

1. Seditious Libel 2. Licensing or prior restraint laws 3. Bonds

Regarding time, place, and manner restrictions, what four criteria must be met for a law to be constitutional? Is this strict scrutiny, intermediate scrutiny, or rational basis review?

1. The rule must be neutral as to content both on its face and in the manner in which it is applied, viable time, place, and manner 2. The law must not constitute a complete ban on a kind of communication 3. The state must articulate a substantial interest or argument to justify this restraint on speech 4. The law must be narrowly fixed so that it emphasizes state interest BUT does NOT restrain more expression than is actually required to further the interest

Private property has no first amendment guarantees except for what?

1974 California Excerption

4 Rules of Prior Restraint (Rule 2)

2. The government's burden is high, with courts often requiring it to prove there is a compelling interest or an interest of the highest order justifying the restraint

4 Rules of Prior Restraint (Rule 3)

3. The scope of any prior restraint (how broadly the restraint is drafted and how much speech is restrained) must be very narrow - This is so it doesn't stop the publication of any more speech than actually necessary to serve the govt's compelling interest

4 Rules of Prior restraint (Rule 4)

4. Speech that falls outside the scope of First Amendment protection (obscenity, child pornography, and false advertising) can be restrained by the government, but ONLY after a judicial proceeding where a court has determined that the speech is not protected

Strict Scrutiny

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal

Per Curiam Opinion

A brief, unsigned opinion issued by the Supreme Court to explain its ruling written by a member of the majority.

What are the two ways a case can make it to the Supreme Court? What do they mean and which is more common?

A case will come before the Supreme Court for review in one of two principal ways: 1. Direct appeal - You have the right to appeal your case to the SC if you don't agree with the conviction - Most rejected - Used by states if federal court decalres that a state statute violates the US Const. or conflicts with the US law 2. Writ of certiorari - Court issued order to send up the record of the case for the SC to review if a legal question has been raised - Most common - Each request is considered by the entire nine-member court

Plurality opinion

A decision of the Supreme Court in which a majority of the Court agrees on a decision, but there is no majority agreement on the reason for the decision. - When 5+ justices disagree despite being joined by more justices than usual

Split authority

A disagreement among lower courts on the same legal issue - More likely to be heard by the SC

Prior restraint

A government censorship of information before it is published or broadcasted

"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 the decision

Dissenting opinon

A justice that disagrees with majority decision

Bucky v. Valeo (1976)

A landmark decision of the US Supreme Court on campaign finance. A majority of justices held that limits on election spending in the Federal Election Campaign Act of 1971 are unconstitutional after SC held a $1,000 per election limit on individual contributions to prevent "corruption and the appearance of corruption"

Common Law

A legal system based on custom and court rulings - Judge made/discovered law - An INDUCTIVE system where legal rules/standards are arrived after consideration of precedents - Stare Decisis

Opinion of the Court (Majority Opinion)

A signed opinion of a majority of the Supreme Court

Intermediate Scrutiny

A test used by the Supreme Court in gender discrimination cases that places the burden of proof partially on the government and partially on the challengers to show that the law in question is unconstitutional

As-applied attack

Addressing problems with actual application

Facial attack

Addressing the problems with the wording

Hosty v. Carter (2005)

Administrators at Governors State University in Illinois demanded prior review and approval of the student newspaper before publication The case centered around whether the "legitimate pedagogical concerns" standard of Hazelwood could be applied to college newspapers The 7th Circuit agreed with the university saying that just bc a college newspaper is an extracurricular activity and not part of the curriculum does not mean that it necessarily escapes all university control or regulation

Media Administrative Agencies

Advances in technology caused Congress to create specialized federal administrative agencies because Congress was being asked to resolve matters like budgets, wars, and treaties - FCC - FTC

Concurring opinion

An opinion that agrees with the majority in a Supreme Court ruling but for a different reason

R.A.V v. St. Paul (1992)

An ordinance that banned the display of any symbols promoting hatred based on race, gender or religion was voted UNCONSTITUTIONAL due to under-inclusiveness and viewpoint discrimination. SC said gov't may not punish those who "communicate messages of racial, gender or religious intolerance just because the ideas may be emotionally painful."

Gitlow v. New York (1925)

Anarchist, Gitlow, calling for overthrow of the government. Established precedent of federalizing Bill of Rights (applying them to States); States cannot deny freedom of speech - protected through due process clause of Amendment 14 - This case marked the beginning of attainment of a full measure of civil liberties for the citizens of the nation

Memorandum opinion

Announces vote without decision

Changing State constitutions

Approved or changed by a direct vote of the people

The Rule of Four

At least four Supreme Court justices of must vote to consider a case before it can be heard

What is the earliest source of Anglo-American law?

Common Law - Principles and rules of law that derive their authority not from legislation but from community usage and custom ("King's Court") - Beneficial bc it built consistency within the law, which contributes to legitimacy

Which source of law was named to distinguish itself from church law?

Common Law - To distinguish it from the ecclesiastical (church) law prevalent at the time

Criminal Lawsuits

Defendant is prosecuted by the government Gov. can impose fines, imprisonment, and occasionally the death penalty Government's case must be proved "beyond a reasonable doubt" Arraignment, plea, either sentence or trial Judge CANNOT overturn a jury decision ***The result of the trial is not enforced until the final appeal is exhausted.

What was the Espionage Act of 1917 and the Sedition Act of 1918 aimed at preventing?

Espionage Act: It was a crime to willfully convey a false report with the intent to interfere with the war effort (show disloyalty, refuse duty, etc.) Sedition Act: It was a crime to speak, write or publish disloyal or profane language intended to make the US govt look bad **Aimed at preventing bad image of the US and refusal to fight in the military

Meiklejohnian Theory

Expression that relates to the self-governing process must be protected absolutely by the First Amendment. Presents a hierarchical approach to First Amendment theory, with political speech placed at the top of this hierarchy.

Preferred Positon Balancing Theory

Freedom of expression is considered to have greater importance than other freedoms and rights. ex. Often seen in defamation and privacy cases

Absolutist Theory

Government cannot censor speech or the press for any reason. EVEN all instances of defamation, obscenity, pornography, hate speech, and threats of violence

Tinker v. Des Moines (1969)

Guaranteed a student's right to peaceful protest Vietnam war (wearing armbands). Sets Tinker Precedent

Barber v. Dearborn Public Schools (2003)

High school junior, wore a t-shirt to school with a photo of President George W. Bush "International Terrorist"; when one student complained, Barber was asked to remove the shirt 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"

Explain why the TYPE of high school newspaper makes a difference if it can be censored or not

High school newspapers are allowed to be censored that are apart of the curriculum or school sponsored and include "legit pedagogical concerns" Ruling doesn't apply to high school papers published as extra curricular where any student can write

Dean v. Utica Community Schools (2004)

High school pleas to censor student written article about if school buses are causing illness and injuries to locals. Judge rejects plea to censor and applies Hazelwood precedent The judge found the censorship to be unconstitutional viewpoint-based discrimination (the superintendent just didn't agree with the article's opinion) Impact: High schools know now that there are limits to what they can censor in student publication

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. - Judge made - Not tried before a jury - Rules more flexible than common law - ex. restraining order

Statutory Law

Law passed by elected legislative bodies at the local state and federal levels - Large group issues - Anticipatory - ALL criminal laws - Collected in codes and law books

Constitutional Law

Law that involves the interpretation and application of the U.S. Constitution and state constitutions - The most important source of law in the US - Provides plans for Congress - Outlines duties, responsibilities, and powers of govt - Changing it is very difficult

Content Based

Laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech, what is communicated

Seditous libel

Laws made to punish those who criticized the govt or the Crown (no matter if it was true or not)

Stare decisis

Let the decision stand; decisions are based on precedents from previous cases

What are executive orders and who are able to give them?

Orders issued by elected officers of government (executive orders) and rules generated by the administrative agencies of government at the federal, state and local levels

Designated public forums

Places created by the government to be used for expressive activities, among other things. Govt must have an intent to create a public forum. ex. City owned auditorium, fairgrounds, student newspapers (sometimes)

Civil Lawsuits

Plaintiff Complaint Hearing Defendant - Between 2 private parties (demurrer, disputes, summary judgements) - Liable, not "guilty" - Judge not always bound to jury's decision *****The result of the trial is not enforced until the final appeal is exhausted.

Bonds

Printers were often required to deposit with the government large sums of money in the form of bonds.

Son of Sam Laws

Prohibits offenders from profiting from their crime ex. Ted Bundy + David Berkowitz making $ off books and films

Limited public forum

Public forum the government opens for use only by certain groups that is limited to the discussion of only certain subjects or topics and not others. Viewpoint must be neutral, no discrimination

Traditional public forums

Public places that are devoted to assembly and speeches. ex. Street corners, public parks, public sidewalks, plazas in front of city hall

Public Property That is Not a Public Forum

Public property which is not to be considered for free speech and off-limits to expressive activities ex. prisons, military bases, airport terminals, postal service mailboxes, utility poles

Licensing or prior restraint laws

Required printers to obtain prior approval from the govt or the church before printing their products

Bethel School District v. Fraser (1986)

SC gave public school officials the authority to suspend students for speech considered to be lewd or indecent behavior

Self-Realization/Self-Fulfillment Theory

Speech as a form of "identity." Express who you are with no other intent

Brandenburg Test

Speech can be prohibited if 1. It's directed at inciting or producing imminent lawless action 2. Likely to incite or produce action*** The Brandenburg test continues to be the standard when Americans want to punish speech that is meant to get ppl angry to a point where they are violent

Randall v. Sorrell (2006)

Supreme court struck down the Vermont law that limited the amounts candidates for state office could spend on their campaigns AND the amounts individuals and political parties could contribute to those campaigns The court concluded that Vermont's contribution limits were simply "too restrictive", threatened "to inhibit effective advocacy by those who seek election imposed burdens in the First Amendment right of expression Seen as "a defeat for liberal reformers who wanted to lessen the impact of money in politics"

Testimony evidence

Sworn statements, witnesses - Establishes factual records, what actually took place

Hazelwood School District v. Kuhlmeier (1988)

The Court ruled in FAVOR OF SCHOOL DISTRICT censorship of student newspapers as long as censorship is related to "legitimate pedagogical concerns" Only when the decision to censor has "no valid educational purpose" is the First Amendment directly and sharply involved

What is the fundamental concept of common law?

The Role of Precedent

What is judicial review?

The Supreme Court's authority to decide if a law violates the Constitution - One of the most important powers of the courts - "Courts have the right, in fact duty, to nullify laws and executive actions and administrative rulings that do not meet the standards of the First amendment"

FCC (Federal Communications Commission)

The government agency charged with regulating the electronic media

Content Neutral

The government may not regulate assemblies on the basis on what words might be said Applies to expression without regard to its substance

Marketplace of Ideas Theory

The idea that truth will be discovered in a free and fair competition of ideas

Explain the concept of statutory construction

The interpretation of a particular statute - When courts are called to interpret the meaning of words and phrases in a statute

Statutory Construction

The judicial interpretation of a statute or an act of Congress - Judges determine what the legislature meant when it passed the law (legislative intent), not what they think the law should mean

Incorporation Doctrine

The process by which the Bill of Rights was extended to the states and localities

Void for Vagueness Doctrine

The requirement that a law imposing a criminal penalty must be invalidated if it does not fairly inform a person of what is commanded or prohibited ex. Coates v. City of Cincinnati, 1971

Overbreadth Doctrine

The requirement that even if a law properly prohibits certain types of activities, it will be struck down if it is written in such a way AS TO ALSO prohibit OTHER activities that are constitutionally protected - Trying to limit more than what is being accounted for ex. United States v. Stevens, 2010 Ersnoznik v. Jacksonville, 1975

Community Censorship

The silencing of speech by private people or business entities, typically from pressure from political activists - The First Amendment only protects against government censorship so community censorship is not given First Amendment protection

Access Theory

Those with access to the media will have greater First Amendment rights and more influence on others. - Contribution to the marketplace of ideas is not equal for all people. - Skews the "truth." - Internet has leveled it a bit

The Role of the Precedent

To use the ruling of another past case to help decide outcome of current case

Explain the difference between trial and appellate courts

Trial: - Fact finding - Juries sometimes - Empowered to consider both the facts and the law in a case - The place where nearly all cases begin Appellate: - Law reviewing - Normally consider only the law - The difference between facts and law is important here - The facts are what happened/ the law is what should be done because of the facts (what is means)