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
