Common Law
Laws established by judges that were common in England. Doctrine of precent began during common law. Opposite of statutory law.
Equity Law
Judges decide what is fair and equitable.
Statutory Law
Laws passed by elected officials.
Constitutional Law
Laws derived from federal and state constitutions.
Executive Order
An order from a president, mayor or governor that acts as as law.
Administrative Rules
Official agency regulations that act as law. Elaborate requirements of a law or policy.
US Judicial System
Dual system consisting of state courts and federal courts
Appellate Court
A court that hears appeals and reviews cases from lower courts.
Precendent
An earlier decision regarded as an example when dealing with similar cases.
Judicial Review
Executive or legislative acts are subject to review by the courts.
Jurisdiction
The extent of power to make legal decisions and judgements.
Amicus Curiae
Friends of the court.May or may not be summoned by a participating party.
Writ of Certiorari
An order from a higher court to a lower court to send all the documents from a case so they may review their decision.
New York Times v. U.S.
- 1971
- Made it possible for the New York Times to publish the Pentagon Papers without risk of government censorship or punishment.
- Ruled in favor of NYT.
- Precedent: Near v. Minnesota
Nebraska Press Association v. Stuart
- 1976
- In response to a popular murder case, a Nebraska judge issued a prior restraint (press block) so nothing could be reported on the case.
- Ruled in favor of Nebraska Press Association.
- Precedent: NYT v. Stuart
Aaron Cantu
- Arrested while reporting on protests after Trump inauguration.
- Indicted him on eight felony counts: inciting a riot, rioting, conspiracy to riot and destruction of property.
- Was eventually dismissed.
Karen Fonseca
- Drove a truck with a "**** Trump" sticker on the back.
1st Amendment
Freedom of religion, speech, press, assembly and petition.
14th Amendment
Equal protection under the law.
Absolutist Theory
Congress shall make no law abridging freedom of expression and speech.
Ad Hoc Balancing Theory
Balance free speech with other interests such as national security.
Preferred Position Balancing Theory
The 1st amendment is preferred over other interests such as privacy.
Censorship in England
Laws made it illegal to criticize the government.
Protected Speech
Speech that is protected from government regulation and censorship, depending upon the nature of the speech and the nature of regulation.
Seditious Libel
- Criminal offense under English common law.
- A published statement that incites or causes people to rebel against authority.
Prior Restraint
- The government can't restrain or censor the press prior to publication. If it does, government must show a compelling interest and the restraint must be very narrow.
- Ex: NYT vs. US, Nebraska Press Association v. Stuart
Symbolic Speech
An act that conveys a political message, such as burning a draft card to protest the draft.
Clear and Present Danger
Interpretation of the First Amendment that holds that the government cannot interfere with speech unless the speech presents a clear and present danger that it will lead to evil or illegal acts.
Espionage Act of 1917
Penalized disloyalty, giving false reports, or otherwise interfering with the war effort.
Content-Based Laws
- Laws that regulate speech based on content.
- Courts apply specific scrutiny test. 1) Is there a compelling government interest? 2) Can the law be written less restrictively?
- Generally unconstitutional.
Content Neutral-Laws
- Laws that incidentally and unintentionally affect speech as they advance other important government interests.
- More likely to be upheld.
- Intermediate Scrutiny Test: 1) The law isn't deigned to restrict content of speech. 2) The law advances governme
Snyder v. Phelps
- 2011
- Phelps family and Westboro Baptist Church protested at the funeral of a Marine killed in Iraq.
- Ruling: Protestors had the right to protest on the public property even though it caused emotional distress.
Morse v. Frederick
- 2007
- High school student sued his school after being disciplined for holding a sign that read "Bong rips for Jesus" at an off-campus event.
- Precedent: Tinker v. Des Moines
- Ruling: A school may restrict the right of students to display a sign advoc
Tinker v. Des Moines
- 1965
- Students decided to wear black armbands to protest the Vietnam war.
- Ruled that students do not lose their right to free speech at school, making it legal for them to wear the armbands.
Texas v. Johnson
- 1989
- Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was symbolic speech protected by the First Amendment.
Elonis v. US
- 2014
- Threatening speech online is protected.
Masterpiece Cakeshop v. Colorado Civil Rights Commission
- 2017/18
- Cake shop owner declined to make cake for same-sex couple's wedding.
- Ruled in favor of cake shop. Otherwise a violation of the Free Exercise Clause.
Dan Heyman
Reporter who was arrested for attempting to question Tom Price, the secretary of the Department of Health and Human Services. Was charged with disruption of governmental processes but the charges were later dropped.
Time, Place and Manner Restrictions
Regulations regarding when, where, or how expression may occur; must be content neutral.
Public Forum
- Government property held for use by the public, usually for purposes of exercising rights of speech and assembly.
- Ex. Street corners, public parks.
Private Forum
- Government held property that is not available for public speech and assembly purposes.
- Ex: Jails, military bases.
Military Censorship
1st Amendment is not absolute during wartime. Wartime censorship is not uncommon, including troop movements, documents, interrogations and burials. National security takes on a more important role during wartime.
School Censorship
- The right to free speech and expression can sometimes be subordinated when necessary to achieve legitimate educational goals.
- A school is not comparable to a public park where anyone can stand on a soapbox, or a bulletin board on which anyone can post
Hate Speech
Any communication that belittles a person or group on the basis of characteristics.
Fighting Words
- Speech that directly incites damaging conduct.
- Chaplinksy v. State of New Hampshire est. this concept.
Schenck v. US
- 1919
- During WWI, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the 13th Amendment prohibition against involuntary servitude. Urged the public to disobey the draft with peaceful action.
- Charged w
Chaplinksy v. State of New Hampshire
- 1942
- Chaplinsky was distributing literature that supported Jehovah's Witnesses and attacked conventional religion.
- Convicted under state law that prohibited intentionally offensive/annoying speech to people who are lawfully in a public area.
- Rulin
Cohen v. California
- 1971
- 19 y/o department store worker expressed opposition to Vietnam War by wearing a jacket that said "**** THE DRAFT. STOP THE WAR."
- Charged under CA statute prohibiting maliciously and willfully disturb[ing] the peace via offensive conduct.
- Rule
Brown v. Entertainment Merchants Association
- 2010/11
- Question: Does the 1st Amendment bar states from restricting the sale of violent video games to minors?
- Court ruled yes.
Brandenburg v. Ohio
- 1969
- Brandenburg, a leader in the KKK, made a speech at a Klan rally and was later convicted under an Ohio law that made it illegal to advocate for any form of terrorism to achieve political goals.
- Ruled that Ohio law violated Brandenburg's right to
National Socialist Party of America (Nazi party) v. Village of Skokie
- 1977
- Did the Illinois Supreme Court improperly deny the National Socialist Party's request for a stay of the district court's injunction?
- Yes. In a per curiam opinion, the Court held that Illinois must provide strict procedural safeguards, including
Virginia v. Black
- 2002/3
- Convicted under a statute that prohibits cross burning with intent of intimidating.
- Found this statute unconstitutional.
edward
...
Edward Snowden
American computer specialist who worked for NSA contractors and said that he was an employee of the CIA and NSA before leaking details of several top-secret United States and British government mass surveillance programs to the press.
Character vs. Reputation
Defamation harms a person's reputation, not their character.
Elements of Libel
Plantiffs must show...
1. Defamation
2. Identification as a group or individual
3. The words were defamatory
4. The story was false
5. The plantiff was harmed
6. The defendant was at fault
Standards of Fault in Libel Law
- Actual Malice: Knowledge of the falsity or a "reckless disregard for the truth." A standard that applies to public officials/figures.
- Negligence: Having a duty of care and breaching that duty.
Defenses to Libel
- Truth (an absolute defense)
- Summary Judgement: Motion that occurs before trial in attempt to dismiss suit.
- Statute of Limitations: Usually 1-3, depending on state.
- Fair Report Priviledge
- Parody and Satire
- Retraction: Can lessen impact of defam
Libel Money Damages
- General: For loss of reputation, same and hurt feelings
- Special: Property, trade or profession damages.
- Punitive: Damages to punish and set and example. There are the largest.
Elements of Defamation
- Harms a person's reputation, not their character.
- May be written (libel) or spoken (slander)
- Living persons and corporations may sue for defamation.
- Plantiffs want money to repair reputations.
Libel
Written defamation.
Slander
Spoken defamation.
Public officials
Someone who is elected/appointed. Must prove that reporters acted with actual malice in defamation case.
Public Figures
- All-Purpose: Occupy a position of power/influence and must prove actual malice.
- Limited-Purpose Public Figures: People who influence the outcome of a controversy. Must prove actual malice.
Actual Malice
- Knowledge of the falsity or a "reckless disregard for the truth."
- Applies to public officials and figures.
Private Individuals
- Must prove negligence.
- Negligence is having a duty of care and breaching that duty. Must assert reasonable care.
New York Times v. Sullivan
- 1964
- NYT published MLK ad with numerous inaccuracies. City Public Safety Commissioner, L.B. Sullivan felt this reflected poorly on his subordinates, therefore hurting him.
- Ruled in favor of NYT. To sustain a claim of defamation, the 1st Amendment re
New York Times v. Sullivan
- 1964
- NYT published MLK ad with numerous inaccuracies. City Public Safety Commissioner, L.B. Sullivan felt this reflected poorly on his subordinates, therefore hurting him.
- Ruled in favor of NYT. To sustain a claim of defamation, the 1st Amendment re
Rolling Stones Magazine and the
University of Virginia
Had to pay over 1 million to a fraternity over a discredited rape story.