Term
|
Definition
| Constitutional, statutory, administrative and case. |
|
|
Term
| Two types of case law; how they differ. |
|
Definition
| Equality law-based on fairness rather than precedent. Common law-based on precedents from previous cases. |
|
|
Term
| Common law; how it's created |
|
Definition
| derived by judges from previous cases. Deals with individual problems. |
|
|
Term
|
Definition
| Role of court to determine the meaning of the pertinent constitution and to assure no laws violate it. Marbury v Madison. |
|
|
Term
| A law can be declared unconstitutional for two reasons: |
|
Definition
| 1) Goes further than the const. allows. 2) Too broad or vague. |
|
|
Term
| Final authority on US constitution |
|
Definition
|
|
Term
| Final authority on the state's constitution |
|
Definition
| That state's supreme court. |
|
|
Term
|
Definition
| Determining what the law means, done by courts through judicial review. |
|
|
Term
|
Definition
| Courts are bound by their own, or higher court, decisions and must follow them if conditions are the same. |
|
|
Term
| What if a court doesn't want to follow precedent? |
|
Definition
| They can modify or overturn their own decisions or distinguish them from precedents. |
|
|
Term
| Court decisions are kept in books called... |
|
Definition
|
|
Term
| Easiest way to find a case in reporter or Internet |
|
Definition
| The case citations: name of case, volume number, reporter, page number and date. |
|
|
Term
|
Definition
| Courts defer to decisions of executive agencies unless they have exceeded their authority, violated rules or procedures, or provided no evidence to support their rulings; courts may also defer to the legislative or executive branches. |
|
|
Term
| Difference between civil and criminal law |
|
Definition
| Civil law is based on lawsuits between individuals and results in compensation to one party; burden of proof is "preponderance of evidence." Criminal law is cases initiated by the government; results in punishment for one party; burden of proof is "beyond a reasonable doubt." |
|
|
Term
| Difference between contract and tort law. |
|
Definition
| Contract is a legally binding promise by two parties. A tort is any wrong other than breach of contract for which the injured party can seek a remedy against another party in civil court. Tort law requires fault by one party, usually negligence or malice. |
|
|
Term
|
Definition
| Power of governmental agency to enforce its laws on a particular person or organization who is present in that jurisdiction or has initiated sufficient minimum contacts with persons in that jurisdiction (personal jurisdiction). Jurisdiction may be based on subject matter. |
|
|
Term
| Difference between exclusive and concurrent jurisdiction |
|
Definition
| Exclusive = jurisdiction covered by one body, e.g. the federal government has exclusive jurisdiction over copyright and interstate commerce. In concurrent jurisdiction both the states and fed government have jurisdiction in certain areas (e.g. advertising) and state laws are valid unless they conflict with federal law in the area. |
|
|
Term
| Three levels of federal court system |
|
Definition
| 1) US District Court; in each state. 2) US Courts of Appeals; 11 numbers, D.C. district and Federal Circuit. 3) US Supreme Court |
|
|
Term
| Final authority for disputes over laws of Congress, federal agencies and the US Constitution, and for cases between citizens of different states. |
|
Definition
|
|
Term
|
Definition
| A state cannot be sued in federal court unless it consents. |
|
|
Term
| Difference between precedent in US Supreme Court and precedents set by courts of appeal. |
|
Definition
| SC decisions are precedents for all courts; appeals court decisions apply only in that circuit. |
|
|
Term
| Three levels of Missouri Court system |
|
Definition
| 1) Circuit Court/Associate Circuit Court; 2) Courts of Appeals; 3) Missouri Supreme Court. |
|
|
Term
| "Jurisdiction" in Internet cases |
|
Definition
| Minimum contact with people of that state is necessary for a state to have jurisdiction. Each nation can set its own jurisdiction, but the authority of a sovereign nation and its court system ends at its border. |
|
|
Term
|
Definition
| A ruling stating that there is no contested issue of fact and that the applicant is entitled to an immediate legal judgement in his favor. |
|
|
Term
|
Definition
| The one bringing the case |
|
|
Term
|
Definition
| The one responding to the case. |
|
|
Term
|
Definition
| How you pleading, enter a plead of guilty or not guilty, or some other shit like that. |
|
|
Term
| Roles of trial and appellate courts |
|
Definition
| Trial court-the jury (if there is one) determines the facts of the case, and the judge applies the law to those facts. Appellate courts-consider whether the trial court judge applied the law correctly and normally accepts the facts as stated by the trial court. |
|
|
Term
| Options for appeals court when reviewing a lower-court case |
|
Definition
| They can affirm or reverse. Often remanding the case to the lower court for another trial. |
|
|
Term
| How many judges normally hear a federal appeals court case |
|
Definition
| Three. They may meet en banc (all together) on important cases after the three-judge panel rules. |
|
|
Term
| How does a case normally reach the SC? |
|
Definition
| If four or more justices support hearing the case, the Court issues a writ of certiorari telling a lower court to send it the case. |
|
|
Term
| Which sides win a court decision is spelled out in what kinds of an opinion |
|
Definition
| Either a majority opinion if a majority agrees on a decision or a plurality opinion if there's not a majority if there's not a majority supporting one opinion. |
|
|
Term
| A justice does not sign on to a majoirty opinion, but agrees with the majority's decision issue what |
|
Definition
|
|
Term
|
Definition
| Judges in the minority issue this kind of opinion |
|
|
Term
| The selection of Federal judges |
|
Definition
| Appointed by the president, confirmed by the Senate and serve for life unless impeached. |
|
|
Term
| State judges are normally selected how |
|
Definition
| They are appointed by the governor from a list provided by an independent committee and stand for re-election (The Missouri Plan). |
|
|
Term
|
Definition
| Crime of promotion ill opinions of the government or inciting overthrow of the government. |
|
|
Term
|
Definition
| The jury determined that truth should be a defense for seditious libel. |
|
|
Term
| Importance of the Alien and Sedition Acts |
|
Definition
| Truth was allowed as a defense for seditious libel. |
|
|
Term
| In People v Croswell Alexander Hamilton argued what as to when truth should be a defense |
|
Definition
| If published with good motives with justifiable ends. |
|
|
Term
|
Definition
| Stated that the Bill of Rights places limitations on the actions of states and local governments as well as the federal government because the Due Process Clause of the 14th Amendment (The doctrine of incorporation). |
|
|
Term
|
Definition
| Flag burning is protected symbolic speech because it is expressive conduct. |
|
|
Term
|
Definition
| US Flag Protection Act was unconstitutional. |
|
|
Term
|
Definition
| The government has a heavy burden to overcome for prior restraint to be constitutional, but it might be allowed in some situations. |
|
|
Term
| City of Lakewood v Plain Dealer Publishing |
|
Definition
| Stated that licensing of speech or circulation of information is unconstitutional prior restraint if it gives unbridled discretion to public officials. |
|
|
Term
|
Definition
| Governmental threats and intimidation to stop publication and distribution of information are unconstitutional. |
|
|
Term
| Do courts allow punishment for what is published or broadcast? |
|
Definition
| Yes. Allowable sanctions for speech include: 1)contempt citations; 2) criminal prosecution; and 3) privat lawsuits for torts or breach of contract. |
|
|
Term
|
Definition
| Speech can't be restricted based on the speaker's viewpoint or his/her offensive views. |
|
|
Term
| Are First Amendment concerns raised when the government puts financial burdens on the media |
|
Definition
| Yes, if it discriminates against communicators or among them. |
|
|
Term
| Simon & Schuster v Crime Victims Board |
|
Definition
| A statute can't impose a financial burden on speakers because of the conduct of their speech. |
|
|
Term
| Arkansas Writers' Project v Ragland |
|
Definition
| Selective taxation based upon publication content is unconstitutional. |
|
|
Term
|
Definition
| Because press responsibility is not mandates by the Constitution, access to print media cannot be requires. |
|
|
Term
| Board of Regents of U. of Wisconsin v Southworth |
|
Definition
| It's OK as long as the allocation of funds is viewpoint-neutral. |
|
|
Term
| McIntyre v Ohio Elections Commission |
|
Definition
| Anonymous political pamphleteering is protected by the First Amendment |
|
|
Term
| Are restrictions on speech allowed if content-neutral (not based on content of the speech) |
|
Definition
|
|
Term
|
Definition
| If public officials don't have unbridled discretion in applying the restriction (About when restrictions that apply to everyone are content-neutral) |
|
|
Term
| Absolute First Amendment? |
|
Definition
| Noooooooooooooooooooooope. |
|
|
Term
| Are certain categories of expression (types of speech) unprotected by the First Amendment? |
|
Definition
| Yes, such as false and misleading commercial ads, obscenity, fighting words, incitement to violence. |
|
|
Term
|
Definition
| The Court said depictions of animal cruelty should not be added to the list of categorically unprotected speech. |
|
|
Term
|
Definition
| Legislation that punishes protected as well as unprotected expression is too broad and not constitutional (used in US v Stevens). |
|
|
Term
| A law may overbroad in what two ways? |
|
Definition
| On its face (as written) or as applied by officials. |
|
|
Term
| Doctrine of void-for-vagueness |
|
Definition
| Statutes that are not clear may be struck down as unconstitutional. |
|
|
Term
| Because the First Amendment isn't absolute, the courts use what kind of legal test in speech/press cases? |
|
Definition
| Preferred-positioning balancing. It's assumed to be protected, and the burden is on the government to show why not. |
|
|
Term
| What kind of balancing test is used in non-speech cases? |
|
Definition
| Ad hoc balancing: Either side might win. |
|
|
Term
| If the government isn't involved, is the First Amendment involved? |
|
Definition
| Noooooooooooooopppppppeeee. |
|
|
Term
| If speech is in a category not protected by the FA (obscene, false & misleading, etc.) what standard of judicial review is used? |
|
Definition
| Minimum crutiny: The governmetn action must be rationally related to the legitimate government interest. |
|
|
Term
| If regulation is not aimed that the content of speech (i.e., content neutral) what standard of judicial review is used? |
|
Definition
| Intermediate scrutiny. It must further a substantial government interest and be no broader than necessary to advance the interest. |
|
|
Term
| If regulation of speech is not content neutral, courts use what standard of judicial review? |
|
Definition
| Strict scrutiny. It must further a compelling government interest and be no broader than necessary to advance the interest. |
|
|
Term
| Time, Place & Manner Test |
|
Definition
| Used in vases involving intermediate scrutiny: 1) Is the restriction on expression truly content-neutral? If no, use strict scrutiny; if yes, then: 2) Is the restriction justified by a substantial government interest? If yes: 3) Are reasonable, alternative channels of communication still available? If Yes: 4) Is the restriction no broader than necessary to serve the government's purpose? If yes, then the regulation is ok. If the answer to the first question is "no," then compelling governmetnal interest is required (along with the rest of the TP&M test). If any other part of the test is "no," the regulation unconstitutional. |
|
|
Term
|
Definition
| Regulation of expressive conduct (symbolic speech), and intermediate scrutiny test also can be used if the punishment isn't aimed at suppressing expression. |
|
|
Term
| Cohen v Calif.--About whether an undifferentiated fear of disturbance is not a governmental interest compelling enough to overcome a person's right to use a single four-letter expletive on a shirt? |
|
Definition
| It's not a compelling reason. |
|
|
Term
| Difference between O'Brien and Texas v Johnson |
|
Definition
| In T v J punishment was aimed at a political message and not conduct. |
|
|
Term
|
Definition
| If the government creates a forum, its attempts to control the content of speech in the forum are assumed to be invalid without a compelling state interest. |
|
|
Term
|
Definition
| Traditional public forum. Designated public forum (Limited and Unlimited). Nonpublic forum. |
|
|
Term
| Required for the government to regulate speech in a public forum |
|
Definition
|
|
Term
| Bowman v White--difference between limited and unlimited forum |
|
Definition
| Speech is limited to particular speakers or topics in a limited public forum. All speech is protected in an unlimited public forum, as in a traditional public forum. |
|
|
Term
|
Definition
| As stated in AETN v Forbes it's public property with no history of public access. Speech can be controlled on any reasonable ground. |
|
|
Term
| Tinker v Des Moines School District |
|
Definition
| SC established FA rights of free speech for high school students (if not disruptive or doesn't invade other students' rights). |
|
|
Term
| Bethel School District v Fraser |
|
Definition
| SC began to distinguish students' rights under Tinker. |
|
|
Term
|
Definition
| SC ruled school facilities become public forums only if school officials open the facilities for "indiscriminate use" by students. Allowed the content of a school newspaper that isn't a public forum to be regulated "in any reasonable manner" without using strict scrutiny. |
|
|
Term
|
Definition
| 1) Is it a public school? If no, FA doesn't apply and it can be censored. If yes: 2) Is the newspaper not a public forum? If no (it is a public forum) the newspaper is protected by the FA and can't be censored without a compelling state interest: if it is substantially interferes with discipline or interferes with the rights of students (from Tinker). If yes (it's not a public forum): 3) Is the restriction on speech reasonably related to legitimate pedagogical concerns? If no, it can;t be censored. If yes, it can be. (Legit pedagogical concerns include obscenity, vulgarity, profanity, not suitable for immature audiences; advocates drug or alcohol use, irresponsible sex or socially inappropriate conduct; ungrammatical, poorly written, inadequately researched, biased or prejudiced.) |
|
|
Term
| Papish v Board of Curators of the University of Missouri |
|
Definition
| The mere dissemination of ideas--nomatter how offensive in good taste--on a state university campus may not be shut off in the name alone of "conventions of decency." |
|
|
Term
|
Definition
| It's unconstitutional for a university to replace a compulsory fee system for a student newspaper with a refundable fee system in retaliation for "sacrilegious and vulgar" content. |
|
|
Term
| Kincaid v Gibson--6th Circuit Court |
|
Definition
| A yearbook is a limited public forum, so school officials can't impose content-based restrictions without a compelling justification. |
|
|
Term
| Hosty v Carter--7th Circuit |
|
Definition
| A Hazelwood-type forum analysis is applicable to college publications. |
|
|
Term
|
Definition
| School officials do not violate the First Amendment by punishing student speech at an off-campus school-sanctioned activity if the speech promotes drug use. |
|
|
Term
| First National Bank v Belotti |
|
Definition
| If the source is a corporation speaking on issues not directly related to its business they do not lose first amendment protection unless there is a compelling state interest to regulate that speech. |
|
|
Term
|
Definition
| Contribution and expenditure limits on individuals implicate fundamental FA rights. Using strict scrutiny, however, it found that the Federal Election Campaign Act of 1971 as it applied to contribution limits by individuals was constitutional if designed to prevent corruption. |
|
|
Term
| Citizens United v Federal Election Commission |
|
Definition
| Overturned Austin v Michigan Chamber of Commerce and said limits on corporate and union donations are unconstitutional. |
|
|
Term
| FCC v League of Women Voters of California |
|
Definition
| The government's ability to put conditions on public TV stations public funding isn't sufficient to forbid a station from editorializing. |
|
|
Term
|
Definition
| Made it a crime to publish "any flase, scandalous and malicious writing," with the intent to cause contempt of the federal government. |
|
|
Term
| First two wartime sedition acts |
|
Definition
| 1) Espionage Act of 1917. 2) Sedition Act of 1918. |
|
|
Term
| Espionage Act of 1917 made it a crime to do: |
|
Definition
| "Willfully cause of attempt to cause 'insubordination, disloyalty, mutiny or refusal of duty.'" |
|
|
Term
| Sedition Act of 1918 expanded the 1917 act (Espionage Act) and made it a crime to utter or print, writer or publish disloyal or profane language that was intended to do: |
|
Definition
| To cause contempt or scorn for the government, Constitution, flag or uniform. |
|
|
Term
|
Definition
| Court upheld Espionage Act, saying FA didn't apply to dissent, and Justice Holmes set for the Clear and Present Danger Test for sedition, which said the government may punish speech that is a "clear and present danger" to national security. |
|
|
Term
|
Definition
| Court upheld the Sedition Act using Holmes' test, but Holmes dissented because he said the danger must be imminent, which Abrams' speech wasn't. |
|
|
Term
|
Definition
| The majority said it is a clear and present danger to belong to a group that advocates serious violence. In concurrence, Brandeis and Holmes proposed the standard of advocacy of violation of law isn't a justification denying free speech where advocacy falls short of incitement and the danger isn't imminent. |
|
|
Term
|
Definition
| The second peacetime sedition act made it a crime to advocate, conspire or belong to a group that advocated the violent overthrow of the government. |
|
|
Term
|
Definition
| Court upheld Smith Act, but it stated that advocacy of violent overthrow of the government as a doctrine is not seditious libel, the standard used was whether there was advocacy of a specific, illegal action. |
|
|
Term
|
Definition
| Court set forth a new standard, and state that incitement to violence is protected up to the point where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. |
|
|
Term
| Brandenburg Incitement Test |
|
Definition
| 1) Does the expression advocate the use of illegal force or violence? If yes: 2) Is it directed toward actually inciting such illegal conduct? If yes: 3) Would the advised conduct be imminent, or immediate? If yes: 4) Is the expression actually likely to produce illegal conduct? If yes, the speech is not protect by the FA. |
|
|
Term
|
Definition
| The Court stated that speech is protected by the FA unless it is likely to produce "a clear and present danger of a serious substantive evil that rises far and above public inconvenience, annoyance or unrest"--thus protection speakers from being disrupted by hostile onlookers (hecklers) if the gathering is 1) legal and 2) orderly and nonviolent. |
|
|
Term
| New York Times v US, US v Washington Post |
|
Definition
| The first federal attempt to prevent publication (through a restraining order) was unconstitutional based upon the Preferred Position theory because the government hadn't shown why prior restraint was justified. |
|
|
Term
|
Definition
| A district court judge said an injunction against publishing an article on how to make an atomic bomb was constitutional despite the Pentagon Papers case for three reasons: 1) The Pentagon Papers were historical, the Progressive was current. 2) In the Pentagon Papers, there was no important national security issue advanced; in the Progressive case, there was. 3) In the Pentagon Papers case, there was no substantial legal authority to prevent publication in the Progressive case, there was: The Atomic Energy Act. |
|
|
Term
| In personal injury cases, the media may be sued under the tort of negligence (failure to exercise reasonable [or due] care), but more often what FA protection is available to the media? |
|
Definition
| The need to show a clear and present danger. |
|
|
Term
| When a suit may be launched because of shocking media content or news gathering tactics that are outrageous and exceed the bounds of decency based on negligence, what test is used? |
|
Definition
| 1) Did the media defendant have a duty to use care (because of a reasonably foreseeable risk of direct harm to others)? If yes, 2) Was that duty breached? If yes, 3) Was the breach the proximate (direct) cause of the resulting injury? If yes, it's negligence. |
|
|
Term
| If the media are blamed for content that people imitate and are injured or killed, what test is used? |
|
Definition
| The Incitement Test from Brandenburg. 1) Was a reasonably foreseeable risk of injury created by the communication? If yes, 2) Did injury in fact occur? If yes, 3) Was the careless communication a direct cause of the injury? If yes, then in most media cases, 4) Did the communication actually incite the harmful conduct? If yes, the media can be punished. |
|
|
Term
| If the media are blamed for urging or inviting the audience to act in a certain way, is the incitement standard always used? |
|
Definition
| No, for example, in Rice v Paladin Enterprises, the court ruled that publishing a book advising people how to commit a crime is aiding and abetting a crime. |
|
|
Term
| Is threatening a person with violence using the Internet protected speech? |
|
Definition
| No. It's most likely seen as intimidation, as in Planned Parenthood v American Coalition of Life Activists. |
|
|
Term
| Are publishers responsible for advertising that causes harm? |
|
Definition
| Yes. 1) Eimann v Solider of Fortune Magazine: without a specific indication of illegal intent, publishing an advertisement is too innocuous for a magazine to have a duty to stop it. 2) Braun v Solider of Fortune: A magazine has an obligation to determine, based on the ad's language, whether an advertisement (for a hit man) would create a clearly foreseeable risk of causing a violent crime. |
|
|
