Media Law & Ethics Trager

State Court System

State courts are the final arbiters of state laws and constitutions. Their interpretation of federal law or the U.S. Constitution may be appealed to the U.S. supreme court.

Originalists:

Supreme Court justices who interpret the Constitution according to the perceived intent of its framers

Incorporation doctrine:

The 14th Amendment concept that most of the Bill of Rights applies equally to the states

Marbury v. Madison and Judicial Review:

The 1803 case in which Chief Justice John Marshall and his associates first asserted the right of the Supreme Court to determine the meaning of the U.S. Constitution. The decision established the Court's power of judicial review over acts of Congress, (the Judiciary Act of 1789).

Bradenburg v. Ohio

The Supreme Court ruled that the First Amendment protects the right to advocate but not to incite, or provoke, immediate violence Case involved: Clarence Bradenburg (a TV repairman) and Ku Klux Klan leader Bradenburg made vague threats to take "revengeance" against various government leaders, and his racist speech was later televised. Bradenburg was convicted under a state law that made it a crime to conspire to violently overthrow government He said the conviction violated his right of free speech Supreme Court struck down Bradenburg's conviction, ruling the First Amendment protect's peoples right to advocate abhorrent ideas about social, political, and economic change. Bradenberg's anti-Semitic and racist comments were highly offensive, the Court said "...the use of force or violence does not remove speech from the protection of the First Amendment" The expression of abstract ideas about the necessity of violence is protected speech... To protect it from government intrusion, the Court created a test that said government could punish the advocacy of force only when government could prove the advocacy 1) was directed to 2) was likely incite imminent lawless action

Hazelwood Test

The Supreme Court said school administrators, not student reporters and editors, have the authority to determine the appropriate content of a school sponsored student newspaper. Schools not only are free from any obligation to to "promote particular student speech" but must exercise their supervisory function to promote a positive educational environment.

Discretion:

The authority to determine the proper outcome

Chilling Effect:

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right Humanitarian Law Project involved a non-profit organization that said the ban prevented it from offering training on how to negotiate peace to members of the Kurdistan Worker's Party (PKK), a federally designated terrorist organization. The group said the ban was overboard and had a chilling effect on speech and associations protected by the First Amendment. Government actions that discourage the exercise of a constitutional right cause a chilling effect. (P. 99)

Stare Decisis:

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

Jurisdiction:

The geographic or topical area of responsibility and authority of a court.

Venue:

The locality of a lawsuit and of the court hearing the suit. Thus, a change of venue means a relocation of a trial.

Precedent:

The outcome of a previous case that establishes a rule of law that courts within the same jurisdiction rely on to determine cases with similar issues.

Original intent:

The perceived intent of the framers of the First Amendment that guides some contemporary First Amendment application and interpretation.

Discovery:

The pretrial process of gathering evidence and facts. The word also may refer to the specific items of evidence that are uncovered.

Summary judgement:

The resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgement

Probable cause:

The standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed.

Rule of Law:

The standards of a society that guide the proper and consistent creation and application of the law Laws establish a contract that governs interactions among residents and between people and their government Legal rules establish the boundaries of acceptable behavior and empower government to punish violations The rule of law limits the power of government because it prohibits government form infringing on the rights and liberties of the people

Federal court system:

The three-tiered structure of federal courts, comprising U.S. district courts, U.S. courts of appeal, and the U.S. Supreme Court. Parties dissatisfied with the decision of a U.S. District Court , the US. Court of Claims, and/or the U.S. Court of International Trade may appeal to the U.S. Court of Appeals. A party may ask the U.S. Supreme Court to review a decision of the U.S. Court of Appeals, but the supreme court is under no obligation to do so.

USA Patriot Act:

The uniting and strengthening America providing appropriate tools required to intercept and obstruct terrorism Act of 2001 The act gave law enforcement agencies greater authority to combat terrorism This ban defined "material sport" - any service, training, expert advice or assistance a designated terrorist organization Law placed a range of political organizing, activism and speech within the category of support for terrorism State Department said: "the ban played a critical role in our fight against terrorism"

Citizen United v. Federal Elections Commission:

This case resulted in the decision said that individuals can give an unlimited amount of money to groups because it found the law's restrictions on corporate and union election spending facially unconstitutional.

Deference:

This...to legislative intent reflects court's recognition that the power to write laws lies within the publicly elected legeslature.

Ad hoc balancing:

To reach decisions, the Court weighs the constitutional interests on each side of a case according to the specific facts of the case under review rather than based on general principles. Decide which side has a greater constitutional merit.

Media liability (foreseeability and proximate cause):

To win a lawsuit for injury caused by media negligence, the plaintiff must prove breach of media's duty of care because the content posed a reasonable foreseeability of harm or proximate (directly related) cause of harm.

Schools and public forum analysis:

Under public forum doctrine and apply the O'brien test schools may impose reasonable content-neutral time, place and manner regulations on student speech activities to advance educational objectives.Intermediate scrutiny is a test courts will use to determine a statute's constitutionality. Intermediate scrutiny is only invoked when a state or the federal government passes a statute which negatively affects certain protected classes (this is described in further detail in the next section). To pass intermediate scrutiny, the challenged law must: further an important government interest and must do so by means that are substantially related to that interest.

Prior restraint:

When government prohibits publication or suppresses particular material. It exists when any government body or representative reviews speech or press prior to distribution and stops the dissemination of ideas before they reach the public.

Statutory construction:

When the language of a statute is unclear imprecise or ambiguous, courts determine the law's proper meaning and application through this review process.

Fighting words:

Words not protected by the First Amendment because they cause immediate harm or illegal acts.

Compelling interest:

a government interest of the highest order, an interest the government is required to protect

Grand jury:

a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt

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

Overbroad Laws:

a principle that directs courts to find laws unconstitutional if they restrict more legal activity than necessary.

Concurring opinion:

a separate opinion of a minority of the court or a single judge or justice agreeing with the majority opinion but applying different reasoning or legal principles.

Dissenting opinion:

a separate opinion of a minority of the court or a single judge or justice disagreeing with the result reached by the majority and challenging the majority's reasoning or legal principles.

Intermediate scrutiny:

a standard applied by the courts to review laws that implicate core constitutional values; also called heightened review

Rational review:

a standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review

Per Curiam opinion:

by the court. Ruling issued by multiple judges. Issued by the court not individual judges.

Seditious libel:

change/criticism of government Illegal to publish anything harmful to the reputation of colonial governor

Negligence:

generally, the failure to exercise reasonable or ordinary care.

Nonpublic forum:

government held property that is not available for public speech and assembly purposes

Public Forum:

government property held for use by the public, usually for purposes of exercising rights of speech and assembly

Designated public forum:

government spaces or buildings that are available for public use (within limits)

Speech codes:

historically transmitted, socially constructed, system of terms and meanings, premises and rules, pertaining to communicative conduct. courts consistently and resoundingly found these codes unconstitutional because they target disfavored speech and reduced flow of information and ideas.

Content-based laws:

laws enacted because of the message, the subject matter or the ideas expressed in the regulated speech

Symbolic speech:

nonverbal communication, such as burning a flag or wearing an armband. The Supreme Court has accorded some symbolic speech protection under the first amendment.

True threat:

speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety

Rule of Law Criteria

1. General and not discriminatory 2. Widely known and disseminated 3. Forward-Looking 4. Clear and specific 5. Self consistent & 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

Six Sources of Law

1. constitutions 2. statutes 3. equity law 4. common law 5. administrative law 6. executive orders

Tinker Test

3 prong test that allows government to set reasonable rules to regulate protest speech

Time/place/manner laws:

A First Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also, the laws that regulate these conditions.

Hate speech:

A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like.

Subpoena:

A command for someone to appear or testify in court or to turn over evidence, such as notes or recordings with penalties for noncompliance.

Injunction:

A court order prohibiting a person or organization from doing some specified act.

Strict - scrutiny:

A court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance its compelling interest.

Underinclusive:

A first amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment.

Facial meaning:

A legal argument that the challenged law or policy is unconstitutional in every application; there are no situations in which the law can be interpreted to be constitutional.

Tatro v. University of Minnesota:

A mortuary sciences program had a significant interest in preventing students from "blogging" about cadavers because the student speech was reasonably related to legitimate pedagogical converns.

motion to dismiss

A motion to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way.

Writ of certiorari:

A petition for review by the Supreme Court of the United States,; certiorari means " to be informed of"

Tort:

A private or civil wrong for which a court can provide remedy in the form of damages.

(demurrer)

A request that court dismiss a case on the grounds that although the claims are true they are insufficient to warrant a judgment against the defendant.

Amicus brief:

A submission to the court from "amicus curiae, or "friends of the court," which are interested individuals or organizations that are parties in the case.

O'brien Test:

A three-part test used to determine whether a content-neutral law is constitutional.

Symbolic expression:

Action that warrants some First Amendment protection because its primary purpose is to express ideas.

Incitement test:

Almost 5 decades ago, the Supreme Court replaced its "clear and present danger" standard with the Bradenburg/Hess Incitement test. The test establishes that speech loses First Amendment protection when it is likely to prompt imminent violence The incitement test allows government constitutionally to prohibit speech that is: Directed toward inciting immediate violence or illegal action and Likely to produce that action The Bradenburg decision established that government may punish criticism of government or advocacy of racial ideas only when speakers intend to incite illegal activity that is so imminent no other recourse would suffice to remove the threat - that remains to rule today.

Right to remain silent:

Amendment 5

Important government interest:

An interest of the government that is substantial or significant more than merely convenient or reasonable, but not compelling.

Courts of appeal:

Appellate courts empowered to review all final decisions of district courts, except in rare cases. In addition, they also hear appeals to orders of many federal regulatory agencies.

Categorical balancing:

Deciding cases by weighing different broad categories, such as political speech against other categories of interests, such as privacy, to create general rules that may be applied in later cases with similar facts When speech categories are less defined, they provide limited guidance to courts seeking to resolve cases involving similar speech and look beyond the category of speech to consider particular circumstances and the harm caused by the speech to determine whether the expression is punishable

Viewpoint - based discrimination:

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally.

Moot:

term used to describe a case in which the issues presented are no longer "live" or in which the matter in dispute has already been resolved; a case is not moot if it is susceptible to repetition but evades review

Original jurisdiction:

the authority to consider a case at its inception, as contrasted with appellate jurisdiction

Affirm:

to ratify, uphold or approve a lower court ruling

Overrule:

to reverse the ruling of a lower court

Cohen v. California and offensive speech:

In Cohen v. California Paul Robert Cohen was convicted of disturbing the peace for opposing the Vietnam War by wearing a jacket bearing the phrase "**** the Draft" into the Los Angeles courthouse. Cohen appealed and said the First Amendment protected his pure political speech. The supreme court agreed. Although court officials have broad authority to maintain decorum, they cannot punish speech that does not disrupt the court's functioning simply because the find words offensive.

Brown v. Entertainment Association:

In...A video game merchants' group challenged the California law that prohibited the sale of violent video games to minors and required package labeling for violent content. The state said the law was intended to advance the important government interest in preventing psychological harm to minors. The supreme court struck down the law. The Court refused to create a new category of disfavored speech for video game violence. California's attempt to create this new category of unprotected speech was both "unprecedented and mistaken," the Court said.

Negative and positive freedom:

Neg- freedom from coercion, when no one directly commands them to do things against their will. Contracts Pos- actual capacity for of people to do things. Freedom TO rather than Freedom FROM. Wider range of choices

Plaintiffs and defendants in civil suits:

Plaintiff: The party who files a complaint; the one who sues. Defendant: The party accused of violating a law, or the party being sued in a civil lawsuit.

Trial courts:

Reach decisions by finding facts and applying existing law to them. They are the only courts to use juries. They do not establish precedents.

Reed v. Town of Gilbert:

Case in which Court struck down statute restricting sizes of most signs but political ads in a town. Being an example of a content-based restriction, Court ruled it as unconstitutional and said there were other ways of dealing with visa clutter resulting from the sign.

Citizens United V. Federal Elections Commision:

Citizens United was a political action committee that wanted to run an ad criticizing Hillary Clinton. Doing so would've violated McCain-Feingold Act that barred corporations and unions from buying media that mentioned any candidate just prior to an election. Supreme court ruling in 2010 eliminated a ban on corporate and union spending on election communications. Gave them the go ahead to spend unlimited amounts of money on ads and other political tools calling for the election or defeat of specific candidates. Previously had only been allowed to take out issue ads. Led to formation of "Super PACs" which take out largely negative ads. Still prohibited from giving money directly to candidates.

Strict construction:

Cours engage in...which narrowly defines laws to their literal meaning and clearly stated intent.

Remand:

Courts of appeal also.... or send back, decisions and require the lower court to reconsider the facts of the case.

Clear and present danger:

Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm Almost a century ago Justice Oliver Wendell Holmes wrote for a unanimous Supreme Court that government had a right and a duty to prevent speech that presented "a clear and present danger" to the nation. The case - Schneck v. United States began when Charles Schneck, a Socialist Party member, mailed anti-draft pamphlets to men in Philadelphia. The pamphlets encouraged readers to reject the government's pro-war philosophy and oppose U.S. participation in WWI. Schneck was convicted of violating the Espionage act of 1917, which was enacted to unify the nation behind the war effort. (P. 101)

Peremptory challenges:

During jury selection a challenge in which an attorney rejects a juror without showing a reason. Attorneys have the right to eliminate a limited number of jurors through preemptory challenges.

Elonis v. United States (2015)

Elonis posted on facebook threatening to murder his wife Elonis claimed that he was an aspiring rapper and these were his lyrics so all charges of his threats should be dropped The court did not drop the charges because they said a threat is based on how the person being threatened perceives it, and in this case his ex wife was truly worried for her life

Vague Laws:

Fail to define their terms or are unclear They are unacceptable because becasue people may avoid participating in legal activities

Due process:

Fair legal proceedings. Due process is guaranteed by the Fifth and 14th Amendments to the U.S. Constitution.

Core values of Free Speech:

Individual liberty: the freedom of speech is deeply intertwined with fundamental natural rights. Free speech is an inalienable right. Self-government: the freedom to discuss political candidates and policies and to render judgments is an essential cornerstone of responsible self-governance. The freedom of speech enables "the people" to purse "democratic self-determination." Limited government power: free speech is an "invaluable bulwark against tyranny." the free speech of "the people" serves as a "check" on authoritarian rule and a limit to the abuse of power by the few Attainment of truth: free speech advances the "marketplace of ideas" to increase knowledge and the discovery of truth. By challenging "certain truth" and "received wisdom" open public discussion allows a society to expand understanding Safety valve: free speech allows people to express problems and grievances before they escalate into violence. Except during "the worst times" free speech is a mechanism for "letting off steam" and helping balance social stability and change, compromise and conflict, tolerance and hate Its own end: Free speech, like clear air, or beauty, or justice, is an end in and of itself, valuable good and a cherishable right.

Common Law

Judge-made law comprised of the principles and traditions established through court rulings; precedent-based law.

Textualists:

Judges - in particular, Supreme Court justices - who rely exclusively on a careful reading of legal texts to determine the meaning of the law.

Traditional public forum:

Lands designed for public use and historically used for public gathering, discussion and association (e.g., public streets, sidewalks and parks). Free speech is protected in these areas.

Content - neutral laws:

Laws that incidentally and unintentionally affect speech as they advance other important government interests.

Strict liability:

Liability without fault; liability for any and all harms, foreseeable or unforeseen, which result from a product or an action.

De novo:

Literally, "new" or "over again." On appeal, the court may review the facts de novo rather than simply reviewing the legal posture and process of the case.

En banc:

Literally, "on the bench" but now meaning "in full court." The judges of a circuit court of appeals will sit en banc to decide important or controversial cases.

Venire:

Literally, "to come" or "to appear; the term used for the location from which a court draws its pool of potential jurors who must then appear in court for voir dire; a change of venire means a change of the location from which potential jurors are drawn.

Voir Dire:

Literally, "to speak the truth"; the questioning of prospective jurors to assess their suitability.

Structure of judicial system:

district courts, court of appeals, supreme court