MC 4163 Media Law - First Exam

What is the wording of Article II section 22?

"Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press."

Doctrinal Approach

"The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. ... Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology."

When is the Oklahoma Supreme Court the final arbiter on a case? When can't the U.S. supreme court overturn an Oklahoma Supreme Court ruling?

"if the question presented is one purely of state law, the Oklahoma court is the final arbiter. An opinion of the Oklahoma Supreme Court, based on the Oklahoma Constitution, affording greater right than those preserved by the united states Constitution may not be overturned by the United States supreme court."

What three main approaches do state courts have to interpreting the scope of individual rights guaranteed under state constitutional provisions that parallel those in the U.S. constitution?

- not binding on state supreme courts when decision involves purely state law (US supreme court) - binding on district federal courts and state courts in circuit (US courts of appeals) - final authority on meaning of its laws when no federal issues is present (state supreme court)

How does statutory law differ from the common law?

-statutes tend to deal with problems affecting society or large groups of people -statutory law can anticipate problems, common law must wait until something has already happened -statutory law is collected in codes and law books, instead of reports

The Supreme Court typically grants what percentage or number of petitions for a writ of certiorari each year?

1%

What are the three typical functions of a constitution?

1. organizational plan for the government: 3 branches of government - outlines duties powers and responsibilities of the various elements of government 2. it divides power between the federal and state governments 3. it guarantees certain basic rights to the people: bill of rights, first 10 amendments to the U.S. constitution, 27 amendments to the U.S. constitution

How many judges are in the state court of civil appeals?

12

How many amendments does the Constitution have? The first 10 amendments are known as what?

27 amendments, first 10 are the bill of rights

How many votes are required for a writ of certiorari to be granted?

4

How many judges are on the state court of criminal appeals?

5

How many justices are on the Supreme Court?

9

How many justices are on the state supreme court?

9

dissenting opinion

A statement written by a judge who disagrees with the results of the case

How are courts involved in the development of constitutional law?

Accept Modify or change it Distinguish Overrule

Safety Valve

Allowing dissidents to expound their views enables them to let off steam. Free speech provides a balance between stability and change in a society

concurring opinion

An opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning.

Explain whether free speech in Oklahoma is limited to the news media.

Freedom of speech and press belongs to every person

Self-Fulfillment / Self-Realization

Individual realization of character and potential as a human being means the right to form your own beliefs/opinions and the right to express those beliefs/opinions.

What are inductive and deductive systems of law? How are they different?

Inductive - legal rule arrived at after consideration of great number of previous cases Deductive - expounds the existing rules for the court to follow in deciding the legal situation Difference - inductive uses other cases, deductive applies to the situation

In what way is a constitution a yardstick against which all other government actions must be measured? what is the supreme law of the land?

It's a yardstick because state constitutions may expand upon the freedoms provided by the U.S. constitution but may not lessen them

Who is the Chief Justice of the United States now?

John Roberts

Checking value

Media act as a counterweight to the government

Constitutions can come in what form?

National, State, and City

May state constitutions give greater rights to their residents than provided under the U.S. Constitution? May they reduce the rights provided under the U.S. Constitution?

No and No

Which court makes the majority of appellate decisions in civil cases?

Oklahoma Court of Civil appeals

Explain if Oklahoma's provision applies to the right to distribute information

Oklahoma's constitutional guarantee "contemplates not only the right to print, but also the right to distribute"

In Oklahoma, all litigations are entitled to how many appeals?

One appeal

writ of certiorari

Order by the Supreme Court directing a lower court to send up the records of a case for review

What is statutory construction? When judges rule on the meaning of a statute, their determination should be based upon what and not upon what? Legislative intent is ascertained from what? To ascertain intent, courts look to what? Why?

Statutory Construction- judicial interpretation of statutes should be based on determination of legislative intent, not what the judges want the law to mean Legislative intent is ascertained from the whole act based on its general purpose and objective

Understand what the First Amendment permits and prohibits regarding religion in public schools. Does it prohibit students from quietly praying before a test?

The First Amendment only prohibits government officials from endorsing or promoting a particular religion. It does not prohibit students from doing so on their own. For example, while it would be unlawful for a public school teacher to have his class recite the Lord's Prayer prior to handing out a test, nothing prohibits his students from quietly praying on their own.

Who determines today's meaning of the First Amendment? (Answer requires critical thinking on your part.)

The U.S. supreme court

Does the First Amendment limit the authority of public-school officials to strip-search students?

The first amendment protects students while at school. In its landmark decision, Tinker v. Des Moines Indep. Community School Dist. (1969), the U.S. Supreme Court, in what has become a much-quoted statement, ruled that neither "students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. o While the federal Constitution does restrict the authority of school officials to conduct strip searches, it is the Fourth Amendment — not the First — that protects students' rights in such cases.

Appellee

The party opposing an appeal from a lower court to an appellate court.

What do the terms vague and substantially overbroad mean?

Vague - law fails to giver ordinary citizens sufficient notice of which conduct will subject them to prosecution or criminal liability Substantially overbroad - law targets a broader category of speech than necessary to achieve the governments goal

When determining the constitutionality of statutes, the Oklahoma Supreme Court is guided by what "well established principles"? What if the statute infringes on the freedoms protected by Article II Section 22, of the Oklahoma Supreme court?

When interpreting the constitutionality of a statute, a court is bound to consider the statute constitutional unless its unconstitutionality is shown beyond a reasonable doubt

Judicial Review

a constitutional doctrine that gives to a court system the power to annul legislative or executive acts which the judges declare to be unconstitutional

per curiam opinion

a usually very brief unanimous opinion to the court as a whole and not to any particular judge

majority opinion

an opinion in a case that is written by one judge and in which a majority of the judges on the court join

plurality opinion

an opinion with which a majority of the judges on the court concur in result but not reasoning

Stare de cisis: "Let the decision stand"

beneficial because it attempts internal consistency by judges in decisions/ proves consistency and continuity in law

In Oklahoma, the common law remains in full force unless what? How is that determined?

common law "remains in full force unless a statute explicitly provides to the contrary. The common law's legislative abrogation may not be affected by mere implication. It must be clearly and plainly expressed. A presumption favors and preservation of common-law rights. In this State's legal system the common law forms a 'dynamic and growing' body of rules that changes with the conditions of society."

What is the source of statutory law?

created by legislative bodies at local, state, and federal levels

Explain whether statutory law is inductive or deductive:

deductive

What are federal district courts?

district courts resolve disputes by determining the facts and applying legal principles to decide who is right

Why are facts important to a case?

law is often highly fact sensitive, which is a fancy way of saying that the proper legal outcome depends on the exact details of what happened

How are federal judges and justices selected?

nominated by the president and confirmed by the senate

How do attorney general opinions in Oklahoma differ from those in many other states? Who can request an attorney general opinion?

o "If the question presented is one purely of state law, the Oklahoma Supreme Court is the final arbiter. An opinion of the Oklahoma Supreme Court, based on the Oklahoma Constitution, affording greater rights than those preserved by the United States Constitution may not be overturned by the United States Supreme Court."

First Amendment Theory: what is the wording of the first amendment?

o "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abriding the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

Understand diversity of citizenship jurisdiction. In which court system are such cases heard? Which law - federal or state - does the court apply? What is meant by citizenship? What assures this "right"? Why does diversity of citizenship most likely exists? NOTE: The amount at issue must be at least $75,000, not $10,000.

o -Federal Court if the parties on the two sides of the case are from different states o -Federal law unless there is no diversity then the case must be pursued in a state court o -Citizenship means that the individual has a residence in the state and intends to have the residence as his or her present home o -residence plus this intent makes that place the individual's domicile, and a party can have only one domicile at a time o -gives a person contemplating a lawsuit the opportunity to change his or her domicile just before serving legal papers that start an action o -started when the US Constitution was first adopted an was intended to balance national purposes with the independence of the states.

What is the case method? Why is it used?

o A system of instruction or study of law focused upon the analysis of court opinions rather than lectures and textbooks; the predominant method of teaching in U.S. law schools today. o The Historical Reason ▪ The legal system that we have inherited from England is largely judge-focused. The judges have made the law what it is through their written opinions. To understand that law, we need to study the actual decisions that the judges have written. Further, we need to learn to look at law the way that judges look at law. o The Practical Reason ▪ A second reason we use the case method is that it can be hard to understand a particular legal rule, and its merits as a matter of policy, without applying the rule in the real world. It can be hard to understand the rule because the English language is quite ambiguous: even a legal rule that sounds definite and clear in the abstract may prove murky in application. You need to understand real-life applications of a rule before you can understand what the rule really means.

What are the attributes and criticisms of positivist First Amendment theories?

o Attributes ♣ Believes that first amendment was designed to further a specific affirmative value ♣ Focuses on the nature and content of the communication or the identity of the speaker o Criticisms ♣ Lack of predictive power ♣ Provide few guidelines and rules for judicial-decision making ♣ Outcomes sometimes contradict the FA

What are the differences between civil and criminal proceedings?

o Civil Proceedings - typically disputes between individuals regarding the legal duties and responsibilities they owe one another ▪ wronged party would file the case ▪ punishment - monetary damages or orders to do or not do something ▪ proof- proved by lower standards of proof such as "the preponderance of the evidence" ● less blameworthy because punishments are less severe ▪ allow juries in some instances - decided by a judge ▪ not given an attorney, must pay for one or defend him or herself o Criminal Proceedings - generally offenses against the state and are accordingly prosecuted by the state ▪ offenses against the state, or society as a whole ● prosecutor files the case in court as a representative of the state ▪ punishment- potential jail time ▪ proof- beyond reasonable doubt ▪ almost always allow for a trial by jury ▪ entitled to an attorney or state must provide one

What five freedoms are explicitly protected by the first amendment?

o Freedom of speech and expression o Freedom of religion o Freedom of the press o Freedom of assembly and petition o Freedom of association

Does Oklahoma's Constitution offer absolute freedom of speech and press? Explain.

o Freedom of speech and press under the Oklahoma constitution is "not absolute" o Oklahomas constitutional guarantee of free speech and press carries with it an explicit "responsibility for an abuse of that right" o "Freedom of the press does not impart an absolute right to publish without responsibility whatever one may choose, or an unrestricted and unbridled license that affords immunity for every possible use of language" o "Recovery should be allowed for the abuse of such freedom. Libel is one such abuse. Invasion of privacy is another"

May government officials censor speech simply because they dont like the message?

o Government officials may not censor speech simply because officials do not like its message, the Oklahoma supreme court said in 1976. o "Free expression must not, in the guise of a regulation, be abridged or denied. Board as instrumentality of state may not restrict speech simply because it finds views expressed by any group abhorrent."

Which is preferable: Holding a speaker liable for libelous speech or prior restraint stopping potentially libelous speech?

o Holding speakers and publishers responsible for what they have spoken or written is preferable to imposing prior restraint upon even potentially libelous speech

How are "negative" and "affirmative" rights different? (See footnotes) Why is that difference important?

o Negative rights: tell the government what it cannot do. These rights limit government and prevent it from affecting certain behaviors of its citizens o Affirmative rights: tell the government what it must do and citizens what they are entitled to

Does Oklahoma's Constitution provide more protection than the First Amendment? Explain.

o Oklahoma's language provides more protection than that of the first amendment o Oklahoma's supreme court in turn has compared "every person may freely speak, write, publish his sentiments on all subjects" to "congress shall make no law abridging the freedom of speech"

Explain which positivist First Amendment theory the Oklahoma Supreme Court has adopted when interpreting the provision. What is the purpose of Article II, Section 22?

o Oklahoma's supreme court has adopted a Meiklejohnian interpretation of the provision, saying its intended to protect the pulic by protecting the vigorous discussion of issues needed for a democracy. o The purpose of Article II, section 22 is intended to facilitate the functioning of a democratic government by protecting speech that relates to the self governing process

What is the correlation between the level of First Amendment protection afforded to a speaker and the power of government to censor that speaker? The correlation also exists regarding the content of speech and the medium of communication.

o The police have an affirmative obligation to take all reasonable steps to protect the speakers right to speak and the audiences right to hear and the protestors right to protest o Thomas Emerson 1970 believed that people who have had full freedom to state their position and to persuade others will be more willing to accept decisions that go against them. Without free expression, the real problems of society may remain hidden and fester. So by suppressing reform, censorship may transform problems into a revolution

What are the distinctions between trial courts and appellate courts?

o Trial Court - the courts where cases start ▪ both sides are present evidence to show their version of what happened ▪ most evidence comes from witnesses ▪ one judge in the courtroom - decides what evidence can and cannot be used ▪ jury is sometimes used ● criminal case the jury decides if the person is guilty or not o Appellate Court ▪ there is no witnesses and no evidence ▪ lawyers simply argue legal and policy issues before the judge or a group of judges ▪ five groups of three judges ▪ no jury ▪ can overrule a trial court decisions only if a very important legal error was made in the trial court

What is equity law? How is it related to common law?

rules and procedures are more flexible under common law

Which court is mandated by the U.S. constitution and cannot be abolished by congress?

the U.S. supreme court

Defendant

the party against whom an action or lawsuit is brought

Plaintiff

the party that institutes a suit in court

remand

to return (a case or matter) from one court to another esp. lower court or from a court to an administrative agency -to send back into custody by court order (as pending trial) -turn (a prisoner) over for continued detention

Political Self-Government / Meiklejohnian theory

• First Amendment is intended to safeguard & protect individual self-governancein a free and democratic society • Believed in absolute protection for political speech. His rationale was that the citizen is the ruler in a democracy. Political discussion assures that the citizens will have the necessary information to make the informed judgments (voting) on which a self-governing society is dependent. • He believed that free speech is not an individual right of self-fulfillment but rather serves only self government. • Freedom of speech is not a natural right but is assured only to speech bearing directly or indirectly on issues with which voters have to deal. • According to this theory, freedom of speech can't be abridged, but speech itself can be. In other words, society can punish specific speech for the sake of the general welfare. • He didn't believe in first amendment rights for private speech. In other words, speech directed toward our own interests is within the scope of the regulatory power of the legislature.

How many U.S. Courts of Appeal? Which circuit is Oklahoma in?

▪ 13 appellate courts ▪ Oklahoma is in the tenth circuit

How many district courts does Oklahoma have? Where are they located? What kinds of cases do they hear?

▪ 77 district courts ▪ They are called Oklahoma Eastern, Oklahoma Western and Oklahoma Northern. ● Oklahoma Eastern is located in Muscogee, Oklahoma. ● Oklahoma Northern is located in Tulsa, Oklahoma. ● Oklahoma Western is located in Oklahoma City, Oklahoma. ▪ The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty.

Under what circumstances might the state Supreme Court grant an appeal from the state Court of Civil Appeals?

▪ A Petition with the Court of Civil Appeals' opinion must be presented; a referee reviews the opinion, at which point he can present it to a single justice. Said justice takes a week to review and make recommendation to the Court. If accepted, the other eight justices consider the opinion and vote; certiorari is granted only when five or more justices vote in favor.

What three elements must be present before the U.S. Supreme Court will review a state court decision?

▪ A substantial federal question must be present ● must be a real question, if the issue was a long settled one, then no question exists ▪ The federal question must be crucial to the decision ▪ the losing party must have exhausted all state remedies ● involves federalism and respect for states autonomy

What are the four options a court has when faced with a precedent?

▪ Accept ▪ Modify or change it (tweak it) ▪ Distinguish cases because facts are different

Understand Judicial Philosophy: judicial activism vs. judicial restraint

▪ Activism ● see social problems and can solve it ● not going to defer to other branches: its up to us to solve it ● won't be stopped by precedent - willing to overturn it ▪ Restraint ● feels much more bound by precedent ● more willing to defer to other branches of government o let social problems be dealt with by elected officials ● only job of court is to protect the working of democratic process.. if democratic process is working, the will of the people is heard ▪ most judges are hard to categorize because they have no clear and consistent viewpoint of how to do their job ● fluctuate according to the case

Understand facial attacks and as-applied attacks on the constitutionality of statutes.

▪ Facial: language of the statue is always unconstitutional; no application would be constitutional ▪ As-Applied- particular application of the statute to plaintiff is unconstitutional

Explain whether common law is inductive or deductive.

▪ Inductive system of law: legal rule arrived at after consideration of great number of previous cases ▪ common law depends upon the concept of stare decisis which is the practice of letting past decisions stand and abiding by those decisions (precedents) in current matters

Know where to find reported court opinions, especially U.S. Supreme Court opinions. Know how to read case citations. Know the meaning of each element in a citation.

▪ New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ● Name: New York Co. v. Sullivan ● Volume of case reporter: 376 ● Abbreviated Name of Case Reporter: United States Reports (reports only US Supreme Court decisions) ● Page Number of Which the Opinion Begins: 254 ● Parenthetical Information: the court that issued the decision when it's not apparent from the name of cited reporter volume o year of decisions was issued ▪ McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla. 1980) ● P.2d - Pacific Regional Case Reporter, which includes Oklahoma ● Okla. Oklahoma Supreme Court

Methods of judicial interpretation. Know what they are, as well as their advantages and disadvantages:

▪ Original Intent ● Historical basis, intent/motives of framers ● Advantages o to deviate from intent is to change the nature of the Constitution o law doesn't change according to interpretations of judges o starting point when faced with unanticipated circumstances: derive principles and apply to circumstances ● Disadvantages o lack of complete record: No transcript of convention debate o whose intention to follow? Whom do we mean by framers? o demands that judge know something that is in some sense unknowable: how do you truly know true intent?

When might the state supreme court retain an appeal?

▪ They may retain the case when New first impression issues or important issues of law or matters of great public interest are at stake

Which courts are binding upon which others under which circumstances?

▪ US Supreme Court binding all federal and state courts when the decisions cover points of federal law ● non binding on state courts when the decision involves purely state law ▪ US court appeals: binding on district federal courts and state courts in the circuit ● not binding on state court if matter involved purely state law ▪ state supreme court is the final authority on the meaning of its laws (constitution, statutes, common law) when no federal issue is present ▪ decisions are binding on all lower courts in that state ▪ also binding on federal courts that are interpreting the state law under diversity jurisdiction

How are Oklahoma's justices and appellate judges selected? What role do Oklahoma voters play in removing Oklahoma's justices and appellate judges? Why was Oklahoma's system of selection changed in the 1960s?

▪ What are the pros and cons of having voters select appellate judges/judges and of the current system? ▪ Each justice is selected from one of nine judicial districts, must be at least 30, have been a qualified elector for one year prior to appointment, have been a licenses and practicing attorney or judge for five years prior to appointment. Justices go up for retention vote after six-year term, which goes on a general ballot. ▪ The judicial scandals of the 1960s directly resulted in reforms in both Oklahoma judicial structure and the judicial selection process.

Courts can overturn administrative agency decisions only under what circumstances? Why do courts have limited power to review administrative law?

▪ courts have limited role in overturning administrative law ▪ reason for creating agency would be defeated if judges with no special expertise could reverse an agency ruling merely because they had a different solution to a problem ▪ courts can overturn only when ● original act that created the agency is unconstitutional ● agency has exceeded its authority ● agency has violated its own rules ● no evidentiary basis whatsoever to support the agency's ruling

What is the source of administrative law?

▪ created by administrative agencies, such as the FTC and FCC ▪ agencies are created to bring expertise to bear on complex problems

Unpublished opinions lack what?

▪ deemed to be without value as precedent and are not uniformly available to all parties, opinions so marked shall not be considered as precedent by any court or cited in any brief or other material presented to any court, except to support a claim of res judicata, collateral estoppel or law of the case

What concept is fundamental to the common law? Understand the term stare decisis. Why is following precedent beneficial?

▪ depends on stare decisis ▪ stare decisis- which is the practice of letting past decisions stand and abiding by those decisions (precedents) in current matters

Common Law: o Where and how was it created?

▪ developed in England in the 11th century, as magistrates decided causes based on local customs or traditions ▪ magistrates job was to discover the common custom of the people, to discover the proper solution to the conflict

Understand the structure of the federal court system.

▪ federal law are passed by Congress and signed by the President ▪ decides the constitutionality of federal laws and resolves other disputes about federal law ▪ Supreme Court - highest court ● Courts of Appeals o 13 appellate courts, 94 federal judicial districts are organized into 12 regional circuits and each has a court of appeals ▪ District Courts ● 94 district or trial courts called U.S. District Courts ● district courts resolve disputes by determining the facts and applying legal principles to decide who is right

How is it considered both "discovered law" and "judge-made law"? What does modern common law really reflect? What is the "hunch theory" of jurisprudence? What seems to be the greatest strength of the common law?

▪ judges create the "common law" through decisions ▪ Modern common law really reflects the subjective customs of the judges ▪ Hunch Theory - jurisprudence means a judge decides cases based on instinct or feeling of what is right or wrong and then finds precedents to support the decision ▪ greatest strength is ability to adapt to changes in society

How does equity law differ from common law?

▪ never tried before a jury ▪ rulings come in the form of judicial decrees, not in judgement of yes or no ▪ precedents are relied upon, but judges are free to do what they think is right and fair in a specific case

How are Oklahoma's district judges chosen? How long are their terms?

▪ nine justices- selected from 1 of 9 judicial districts, sits for 6 year term, must be 30, licensed practicing attorney or judge of a court for five years before ▪ if a justice dies or resigns or dies during a term, vacancies are filled by gubernatorial appointment from the appropriate Supreme Court judicial district

What are the typical remedies in equity law?

▪ party seek an equitable remedy (a restraining order or injunction) if there is a real threat of a direct, intermediate and irreparable injury for which monetary damages won't suffice ▪ judges can issue orders that can be preventative (prohibit party from engaging in potential behavior) or remedial (compelling a party to stop doing something) ● injunction/restraining order ● court typically issues a temporary restraining order or preliminary injunction until it can hear both sides of an argument and decide whether to make it permanent

What is the meaning of a denial of certiorari by the U.S. Supreme Court?

▪ see no flaw in lower court decision ▪ no substantial legal issue ▪ allowed time filled ▪ waiting for set of facts to address an issue ▪ don't want side issues

How does a court construe seemingly conflicting statutes?

▪ specific statute controls one of general applicability ▪ most recent enactment controls over an earlier one ▪ only to the extent necessary to avoid the irreconcilable conflict or inconsistency

How is Oklahoma's structure different from most other states? Which appellate court hears appeals in which kind of cases?

▪ two courts of last resort ● Supreme Court determines all issues of a civil nature ● Oklahoma Court of Criminal APpeals decides all criminal matters ▪ members of these courts are appointed by the governor from a list of three names submitted by the Oklahoma Judicial Nominating Commission

Common words in a statute are given what? Unless? Why?

▪ unless a contrary intention plainly appears, common words in a statue should be given their "plain and ordinary meaning" ▪ when interpreting the constitutionality of a statue a court is bound to consider the statue constitutional unless its unconstitutionality is shown beyond a reasonable doubt

How many federal district courts does Oklahoma have? What are their names? Where are they located? Stillwater is in which federal district court jurisdiction?

● Oklahoma has three district courts. ● They are called Oklahoma Eastern, Oklahoma Western and Oklahoma Northern. o Oklahoma Eastern is located in Muscogee, Oklahoma. o Oklahoma Northern is located in Tulsa, Oklahoma. o Oklahoma Western is located in Oklahoma City, Oklahoma. ● Stillwater is in the Western Federal district court jurisdiction.

What is the minimum number of federal district courts in each state?

● There is at least one district court in each state, and the District of Columbia.

Doctrinal Approach

● principle of Stare de cisis: "Let the decision stand" ● new cases should be decided the same way as old cases ● follow precedents if similar facts in previous cases ● make laws stable and predictable so people know what to expect because judge follow previous decisions ● Advantages o adopt principle and apply to cases with similar circumstances: attempt internal consistency judges in decisions o consistency and continuity in law ● disadvantages o size and diversity of cases/rulings: always find precedent for either side o most common approach, but its used by judges in both majority and minority options o difference between: ▪ ratio decindi: underlying principle/rule of decision ▪ obiter dictum: excess language, legal reasoning to support decision o Justices can always decide facts of cases are different from precedent: No guidelines for following precedent

Competing Interests (Balancing) Approach

● which outcome is most sensible? practical application of what judge believes he or she ought to do ● which value deserves more protection ● concerned with deciding on case-by-case basis: what makes the most sense for those circumstances ● recognizes implications of the decision ● problems o fails to ensure consistency: less weight to precedents, depends on what judge thinks o no standard means of making a decision: judges have to weigh criteria on their own ▪ should be a standard under which any judge could come to same conclusion ● Prudential = particulars of case over legal principle ● Precedent = principle over particulars of case

Marketplace of Ideas

♣ Open debate, through which there is an exchange or competition of ideas, is the only way for people to discern the truth and reject falsehood ♣ Justice Oliver Wendell Holmes said society's ultimate good is better reached by free trade in ideas ♣ The Court has repeatedly said the primary purpose of the FA is to protect an uninhibited marketplace where differing ideas can clash ♣ Criticisms • Marketplace metaphor works on false assumptions Everyone has access to the market • Truth is objective and discoverable, rather than subjective and chosen or created • Truth is always among the ideas in the marketplace and always survives • People are basically rationale and are able to perceive the truth