MEJO 340 Exam 1

originalists

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

fighting words

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

moot

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

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

restraining order

a court order forbidding an individual or group of individuals from doing a specified act until a hearing can be conducted

injunction

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

defamation

a false communication that harms another's reputation and subjects him/her to ridicule and scorn; incorporates both libel and slander

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; do not determine guilt

indecency

a narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television

gag orders

a nonlegal term used to describe court orders that prohibit publication or discussion of specific materials

summons

a notice asking an individual to appear at a court

writ of certiorari

a petition for review by the Supreme Court of the U.S.; "to be informed of"

overbroad law

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

tort

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

demurrer

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

motion to dismiss

a request 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

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 the legal basis of the decision

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

pornography

a vague--not legally precise--term for sexually oriented material

search warrant

a written order issued by a judge, directed to a law enforcement officer, authorizing the search and seizure of any property for which there is reason to believe it will serve as evidence in a criminal investigation

symbolic expression

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

important government interest

an interest of the government that is substantial or significant but not compelling

memorandum order

an order announcing the vote of the Supreme Court without providing an opinion

per curiam opinion

an unsigned opinion by the court as a whole

child pornography

any image showing children in sexual or sexually explicit situations

seditious libel

communication meant to incite people to change the government; criticism of the government

strict construction

courts' narrow interpretation and application of a law based on the literal meaning of its language; especially applied in interpreting the Constitution

viewpoint-based discrimination

government censorship or punishment of expression based on the ideas or attitudes expressed; courts will apply strict scrutiny test to determine whether the government acted constitutionally

public forum

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

designated public forum

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

nonpublic forum

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

Which test do courts currently use to determine the proper balance between freedom of speech and harmful advocacy of violence/unlawful behavior?

incitement test

Which of the following categories of speech is protected by the First Amendment? a. inflammatory speech b. perjury c. false advertising d. obscenity

inflammatory speech

admonitions

judges' instructions to jurors warning them to avoid potentially prejudicial communications

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; free speech is protected in these areas

content-based laws

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

vague laws

laws that either fail to define their terms or use such general language that neither citizens nor judges know with certainty what the laws permit or punish

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

en banc

literally "on the bench," but now meaning "in full court"

prurient interest

lustful thoughts or sexual desires

serious social value

material cannot be found obscene if it has serious literary, artistic, political or scientific value determined using national, not community/local, standards

de novo

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

In which situation would a video game not receive First Amendment protection? a. The game depicts realistic images of gunshot wounds b. The game depicts images of naked adults c. The game encourages the player to shoot innocent bystanders d. None of the above

none of the above

continuance

postponement of a trial to a later time

true threat

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

shield laws

state laws that protect journalists from being found in contempt of court for refusing to reveal sources

Elonis v. U.S.

-Elonis charged with 5 counts of violating a federal anti-threat statute for threatening his ex-wife, co-workers, a kindergarten class, the local police and an FBI agent -convicted of 4 of the 5 counts and sentenced to 44 months imprisonment and 3 yrs supervised release -posted violent rap lyrics on Facebook -Supreme Court reversed Elonis' conviction -intention to commit crime is required to prove the commission of a crime under the anti-threat statute

Sorrell v. IMS Health, Inc.

-Vermont legislature passed law banning sale, transmission or use of prescriber-identifiable data for marketing or promoting a prescription drug without the consent of prescriber -3 companies challenged the law -U.S. Court of Appeals for 2nd Circuit struck down the measure, holding that it violated the First Amendment because it restricts the speech rights of data miners without directly advancing legitimate state interests -Vermont's statute imposes content- and speaker-based burdens on protected expression and is subject to heightened scrutiny -Vermont's justifications don't stand with heightened scrutiny

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 -content-neutral

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 other important government interest -i.e. political or religious speech

Richmond Newspapers v. Virginia

-a defendant was being tried for the 4th time on a murder charge -first trial reversed on appeal and 2 others declared mistrials -neither prosecutor nor newspaper reporters who were present in the courtroom objected to the closure -reporters filed a motion that the order be vacated, but the judge denied the request -judge granted a motion by defense to strike the prosecution's evidence -judge dismissed jury and ruled the defendant not guilty -proceedings were closed to the press and to public -Virginia Supreme Court dismissed the appeal by the newspaper that the judge's closure order be overturned

intermediate scrutiny

-a standard applied by the courts to review laws that implicate core constitutional values; also called heightened review -i.e. commercial speech

rational basis review

-a standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review -i.e. obscenity and fighting words

O'Brien test

-a three-part test used to determine whether a content-neutral law is constitutional -often cases with symbolic speech

prior restraint

-action taken by the government to prohibit publication of a specific document or text before it is distributed to the public -prior restraint must be narrowly tailored to achieve some compelling or significant government interest

due process

-fair legal proceedings -due process is guaranteed by the Fifth and 14th Amendments to the U.S. Constitution -certain substantive and procedural considerations that must be applied when evaluating the constitutionality of a law

Tinker v. Des Moines

-kids wore black armbands to school to protest Vietnam War -principals asked the armbands be taken off or kids be suspended -kids kept wearing armbands and were suspended -Court decided wearing armbands is closely akin to pure speech and is protected by First Amendment -principals lacked justification for imposing such limits--failed to show conduct would substantially interfere with appropriate school discipline

Wilson v. Layne

-police executed an arrest warrant for Plaintiff Wilson's son at his home, they brought along a newspaper reporter and photographer who observed and photographed the event -the son was not in the house -Wilson filed a suit against police for a Fourth Amendment violation -Court ruled the police conduct of bringing media parties to a home violates the Fourth Amendment because the presence of these parties was not in aid of the warrant's execution

Branzburg v. Hayes

-reporter's privilege as we know it originated in this case -reporters claimed the First Amendment provided a privilege that protected them from revealing confidential information -Supreme Court disagreed

FCC v. Fox

-upholding regulations of the Federal Communications Commission that ban "fleeting expletives" on tv broadcasts

Central Hudson

4-part test regulating commercial speech

What is an example of the chilling effect in action?

A law bans the publication of books glorifying the use of illegal drugs. A person who was going to write a book about the dangers of heroin abuse does not do it, for fear of getting in trouble with the law

Hicklin rule

taken from a mid-19th century English case and used in the U.S. until the mid-20th century, a rule that defines material as obscene if it tends to corrupt children

patently offensive

term describing material with hard-core sexual conduct

for-cause challenge

the ability of attorneys to remove a potential juror for a reason the law finds sufficient

original jurisdiction

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

discretion

the authority to determine the proper outcome

reporter's privilege

the concept that reporters may keep information such as source identity confidential; the rationale is that the reporter-source relationship is similar to doctor-patient and lawyer-client relationships

variable obscenity

the concept that sexually oriented material not obscene for adults may be obscene if distributed to minors

obscenity

the dictionary defines it as relating to sex in an indecent, very offensive or shocking way; the legal definition of obscenity comes from Miller v. California--material is determined to be obscene if it passes the Miller test

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

stare decisis

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

negligence

the failure to exercise reasonable or ordinary care

jurisdiction

the geographic or topical area of responsibility and authority of a court

sequestration

the isolation of jurors to avoid prejudice from publicity in a sensational 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

defendant

the party accused of violating a law, or the party being sued in a civil lawsuit

plaintiff

the party who files a complaint; the one who sues

original intent

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

judicial review

the power of the courts to determine the meaning of the Constitution and decide whether laws violate the Constitution

summary judgment

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

Which of the following would be most accurately described as "fighting words?" a. The speaker intends to provoke violence in a targeted group b. The speaker intends to rally people behind a cause using offensive language c. The speaker intends to create a fictional account of a violent event d. The speaker intends to raise funds for a cause or group described as radical or dangerous

the speaker intends to provoke violence in a targeted group

probable cause

the standard of evidence needed for an arrest or to issue a search warrant

rule of law

the standards of a society that guide the proper and consistent creation and application of the law

venire

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 voire dire

overturn precedent

to reject the fundamental premise of a precedent

overrule

to reverse the ruling of a lower court

impanel

to select and seat a jury

remand

to send back to the lower court for further action

voire dire

to speak the truth; the questioning of prospective jurors to asses their suitability

affirm

to uphold or approve a lower court ruling

FCC v. Pacifica

-George Carlin records "Filthy Words" -WBAI in NY airs it -father complains to FCC that he and his child heard the Carlin program while driving -FCC puts complaint in WBAI's file an issues declaratory order to Pacifica -FCC said monologue was patently offensive -Pacifica sues, appeals use to appellate court and wins -FCC takes case to Supreme Court -Court ruled FCC did not violate First Amendment -Court says the material is indecent and can be regulated because broadcast media is uniquely pervasive and accessible to children

NYT v. U.S.

-NYT attained top-secret articles based on the 1968 study "History of U.S. Decision Making Process on Vietnam Policy" -NYT analyzed articles for several months and began publication in June 1973 -after 3rd set of articles, Dept of Justice sought an injunction to halt further publication -U.S. obtained a restraining order prohibiting further publication -NYT appealed the decision to Supreme Court -Supreme Court ruled that the First Amendment protected the right of NYT to print the material

Reed v. Town of Gilbert

-Pastor Clyde Reed rented space at elementary school and put signs in the area announcing time and location of his services -Gilbert has ordinance that restrict size, number, duration and location of certain types of signs, including temporary and directional ones, to prevent improper signage -sign code compliance manager cited church for violating ordinance -church filed lawsuit saying ordinance violated First Amendment right to free speech -Court stated that First Amendment prohibits censorship of all speech on a whole topic -the restrictions did not survive strict scrutiny because they had no compelling interest in adding restrictions to only a certain type of sign

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

peremptory challenge

during jury selection, a challenge in which an attorney rejects a juror without showing a reason