MEJO 341 Exam 1

What are fighting words?

"by their very utterance inflict injury or tend to incite immediate breach of peace" Directed at an individual Ex. Chaplinsky v. New Hampshire

What are OUR four sources of law?

1. Administrative 2. Common Law 3. Statute 4. Constitution

Name 3 justices on the Supreme Court.

1. Chief John G. Roberts, Jr. 2. Clarence Thomas 3. Elena Kagan

What are the three theories underpinning the First Amendment?

1. Marketplace Theory 2. Self-Fulfillment Theory 3. Self-Governance Theory

What are the courts' two principle concerns that justify an increased regulation of broadcast radio and television?

1. Protecting children 2. Broadcast media has a greater influence on audiences (much more than print media)

What are the three standards of review (constitutional tests) the Supreme Court applies?

1. Rational Basis 2. Intermediate Scrutiny 3. Strict Scrutiny (easiest test to pass to hardest test to pass)

What is the value of a dissenting opinion?

1. show a judge's separate reasoning in a case 2. allows the reader to test their own understanding of the case against the dissent's reasoning

How many circuits are there in the US?

13

Miller Test

3-prong test for obscenity

What circuit is NC in?

4

How many justices are there on the Supreme Court?

9

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

A cross was burned in a black family's yard Ordinance violated First Amendment in two ways: 1. it was over-broad 2. content-based St. Paul charged the teen incorrectly, so the Court could not do anything Strict Scrutiny Content-based

NYT v. United States (1971)

Attempt to prevent Pentagon papers from being published SCOTUS allowed NYT to publish — protected by First Amendment (freedom of press)

US v. O'Brien (1968)

Background: O'Brien burned his draft card Decision: ruled that burning a draft card did not violate the First Amendment's guarantee of free speech Importance: the test articulated in O'Brien has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech Intermediate Scrutiny Content-neutral

What case discusses the test for incitement?

Brandenburg v. Ohio

Chaplinsky v. New Hampshire (1942)

Chaplinsky used lewd and obscene fighting words to a city marshal Not protected by the First Amendment Strict Scrutiny Content-neutral

Which case first established a legal definition for "fighting words?"

Chaplinsky v New Hampshire

Brandenburg v. Ohio (1969)

Charged with advocating violence for participation in KKK rally and a speech made that encouraged violence against African Americans and Jews Strict scrutiny Content-based

Cohen v. California (1971)

Cohen wore a jacket in L.A. courthouse that said "f*ck the draft" Arrested for disturbing the peace Court overturned the conviction ruling that political expression is protected by 1st amendment Set a precedent for what is considered "fighting words;" this was not considered fighting words SCOTUS did not review case

Which law constrains the federal government's power?

Constitution

Incitement words

Directed at the public to cause a violent reaction

What is the incorporation doctrine?

Effectively prevents the states and Federal Government from abridging protected First Amendment Rights Comes from the 14th Amendment Due Process Clause

U.S. v. Elonis (2015)

Elonis posted threats on Facebook SCOTUS reversed his conviction (8-1 decision that his prosecution needed to prove that his posts were real threats and that the reasonable person would view them as such)

Who is the greatest FCC-hating poet of the 20th/21st Century?

Eminem

When briefing a case, what 5 components should you divide a case into?

Facts, Issue, Rule, Analysis, Conclusion (FIRAC)

Reed v. Town of Gilbert (2015)

Good News Community Church placed signs around Gilbert and was turned in for violating the Sign Code ordinance SCOTUS overturned ruling because the signs were not a danger to traffic Strict scrutiny Content-based

How might lewd or pornographic material be considered NOT obscene?

If it SLAPS SLAP = Significant Literary or Artistic or Political or Scientific value

What is the test for rational basis review?

Law passes rational basis review if it is reasonable and serves a legitimate government purpose

What are the two types of defamation?

Libel (Lines) Slander (Spoken)

What case established judicial review?

Marbury v. Madison (1803)

What case officially eliminated seditious libel in the US?

N.Y. Times v. Sullivan (1964)

NYT v. Sullivan (1964)

NYT published an ad for contributing donations to defend MLK Jr. on perjury charges Court went with NYT, Sullivan could not prove that statement concerned him

Is obscenity protected?

No

How much First Amendment protection is there with fighting words?

Not protected

Appellate Court

ONLY review Trial Court decisions (Trial Courts have juries, witnesses, etc.)

What is prior restraint and how do courts treat it when the publication being restrained "would cause inevitable, direct, and immediate danger to the United States?"

Prior restraint is the censorship of an unpublished work. In this case, prior restraint would be treated as being in accordance with the First Amendment

What was the state of censorship in 16th century Great Britain? How was material covered? Why was it censored?

Rampant! The printing press caused rapid social changes The government responded with licensing laws, taxation (ex. stamp taxes), prior restraint, etc.

What is the legal test for hate speech?

There is NOT one (hate speech is not a term of law)

What are the facts of the O'Brien case?

Vietnam draft-dodging fire-starter burns his draft car Intermediate Scrutiny

Is indecency protected?

Yes, with some limits

Seditious Libel

a crime making it illegal to publish anything harmful to the reputation of the colonial governor

Defamation

a criticism of an individual that causes harm includes both slander and libel

Writ of Certiorari

a petition for review by the Supreme Court

Marketplace Theory

a theory of the First Amendment Based on assumptions - everyone has access - truth is objective - people are rational - truth survives

Tort

a wrong

Traditional Public Forum

always for public expression

Dicta

an expression of opinion

When is stare decisis at its weakest?

at the Supreme Court (ex. Roe v. Wade)

What are the strengths of Marketplace Theory?

best ideas survive; free and open participation

Why is 'spectrum scarcity' significant?

broadcasts cannot be "unlimited," so who gets what frequency determines who speaks

Where does the FCC get its authority?

created by Congress, run by executive (President)

When briefing cases, a dissent can serve which important function?

double-checking your own understanding of the opinion's rationale

The First Amendment protects...

freedom of speech, freedom of the press, freedom of religion, and freedom of assembly

What does it mean when an appellate court reviews a trial court decision "de novo?"

in rare cases, the appellate court will address the merits of the case from the beginning

Content-neutral laws must survive which standard of review?

intermediate scrutiny

A "time/place/manner" restriction must survive which standard of review?

intermediate scrutiny (time/place/manner = content-neutral)

Originalism

interpreting text in the meaning it would have had at the time it was written

Judicial Activism

interprets the law using contemporary values

What is the test for intermediate scrutiny?

law passes intermediate scrutiny if there is a SUBSTANTIAL state interest, it is NARROWLY TAILORED, and it is unrelated to suppression of free expression

What is the test for strict scrutiny?

law passes strict scrutiny if there is a COMPELLING state interest and it is NARROWLY TAILORED

Judicial Restraint

leaves interpreting the law to the legislature

Overbredth

legislation is over-broad if a term could lead to unintended consequences

Vagueness

legislation is vague if it isn't clear what the term is talking about

How does a case make it to the Supreme Court?

parties who are not satisfied with the decision of a lower court must petition SCOTUS to hear their case

What is the FCC?

regulates radio, television, wire, satellite, cable, and broadband FCC = Federal Communications Commission

Designated Public Forum

sometimes used for public expression

Content-based laws must survive which standard of review?

strict scrutiny

Stare Decisis

the legal principle that tells courts to stand by what courts have decided previously

Spectrum Scarcity

the limitation to the number of segments of the broadcast spectrum that can be used for radio or television without causing any interference

Textualism

the literal application of text as written

Judicial Review

the power that the Supreme Court has it strike down laws that it finds unconstitutional

Net Neutrality

the principle that all internet traffic should be treated equally

What are the weaknesses of Marketplace Theory?

unequal access; truth may prevail