ALL Notes for 1st Exam - 28 page STUDY GUIDE
ALL Notes for 1st Exam - 28 page STUDY GUIDE JOUR 303 004
Popular in Law and Ethics of the Mass Communications
JOUR 303 004
verified elite notetaker
JOUR 303 004
verified elite notetaker
verified elite notetaker
verified elite notetaker
verified elite notetaker
verified elite notetaker
Popular in Journalism and Mass Communications
JOUR 101 001
verified elite notetaker
This 34 page Bundle was uploaded by Hailey Smith on Tuesday February 23, 2016. The Bundle belongs to JOUR 303 004 at University of South Carolina taught by Jay Bender in Summer 2015. Since its upload, it has received 196 views. For similar materials see Law and Ethics of the Mass Communications in Journalism and Mass Communications at University of South Carolina.
Reviews for ALL Notes for 1st Exam - 28 page STUDY GUIDE
Report this Material
What is Karma?
Karma is the currency of StudySoup.
You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!
Date Created: 02/23/16
Exam 1 Study Guide Thursday, February 4, 2016 8:23 PM Law: the body of rules by which our society conducts its affairs; establishes minimum standard of conduct What makes something illegal/legal? Law "Against the law" - outside the limits established by society "Legal" - within those limits Origins of law 1 Constitutions US Constitution: supreme law of the country; all other laws are subservient Both created a government and limited its powers Powers not specifically transferred to new government = retained by states Federalism/Dual Sovereignty Each government (federal/state) has sphere in which to operate Ex: federalism in the structure of the court system; both federal/state courts operating on parallel paths Replaced AOC AOC - during/immediately after American Revolution Each state has separate constitution 2 Statutes: "Statutory law" - laws enacted by legislators; binding on the public & enforced by courts Federal legislator = Congress Application: nation-wide Ex: health insurance overhaul SC legislator = General Assembly (GA) Application: within boundaries of state Ex: The South Carolina Freedom of Information Act Gives citizens the right to access meetings/public records May not be inconsistent with preexisting federal/state laws and constitutions (unless government has given them that authority) Bicameral = two houses; Nebraska has unicameral legislator 3 Ordinances: laws enacted by local (city/county) governments; legislative in nature (very similar to statutes) Application: limited to geographic area of the city/county (territorial restrictions) May not be inconsistent with federal/state laws and constitutions (unless government has given them that authority) Ex: SC GA requires motorcyclists under 21 to wear helmet City of Myrtle Beach enacted ordinance requiring all motorcyclists to wear helmets When challenged, S. Ct. of SC ruled the ordinance unconstitutional (because it conflicted with state-wide law enacted by GA) Ex: curfew for young people in five points 4 Common law: "judge-made" law (judges don't make law, they find it) Principles/rules developed over 100s of years by courts making written rulings on disputes 1st by England, then by US Common law of England (in effect during the Colonial period in colonies) still has application Statute enacted by GA: "all…of the common law of England… where it is not altered by the Code or inconsistent with the Constitution…is continued in full force" (SC Code of Laws) Colonial law = basis of our law Has been changed over the years Ex: parts of the common law of libel - inconsistent with US Const. so it's been modified significantly 5 Regulations: legislator can grant authority to executive agencies to adopt rules/control activities within the agency's specific area Function of government Carries force/weight of law (can be enforced by court), just as though it was enacted by the legislator Legislator enacts statute to delegate to an agency the power to: Govern a certain aspect of society Promulgate regulations to regulate activities within the scope of the agency's power Ex: Federal Trade Commission (FTC) - regulates inter-state commerce FTC promulgates regulations on truth-in-lending, advertising substantiation, bate and switch, etc. Once promulgated, congress reviews the regulations If not rejected by congress, the regulations have "the force of law" (the regulation will be enforced by the courts) Ex: General Assembly gives DHEC authority to inspect/create requirements for damages General Assembly doesn't know enough on the matter to create legislation, so it grants authorization to DHEC to promulgate DHEC = department of health and environmental control 2 Treaties: source of law that will have continuing influence on life as global commerce/communication are facilitated by advances in technology Law of copyright: (regulation) shaped by treaties entered into between/among many countries Ex: international airplane ticket & the airline's potential to lose your luggage is controlled by international treaties called "conventions" Limits liability of airlines if they lose bags during international travel (reference to Warsaw Convention) Branches of government (separation of powers) National/state level: confines the activities of each branch of government Ex: Federal Communications Commission (FCC) L: Congress legislates to create FCC E: FCC is a part of the E branch with the power to promulgate regulations J: Regulations/actions by agency subject to review by J branch Local level: city/county council may exercise power in each of the areas 1 Legislature 2 Executive 3 Judicial - interpret the law and resolve disputes Court System Job of court: resolve disputes When pertaining to freedom of speech: determine where on line balance is struck government MUST have a reason to restrict speech Courts are either federal/state Federal courts can & do apply state laws State courts can & do apply federal laws State lends power to federal (example of dual sovereignty) Courts act when they have jurisdiction (means power) (2 types); must have both types to evaluate a case Subject matter: the authority to consider a certain type of case Power of the court to hear a particular case Does the court have the specific authority to consider a certain type of case? Exclusive: restricts the hearing of certain cases to specific courts Ex: copyright infringement cases can only be brought to US District Court Magistrate courts have to hear cases with less than $7,500 in damages Concurrent: case can be heard in either state or federal court Both state and federal courts have concurrent jurisdiction Ex: in the appropriate circumstances, a breach of contract case can be brought to either Parties are from different states and amount in controversy exceeds $7,500 Diversity of citizenship: when the parties are from different states Out-of-state litigate can request for case to be removed to federal court (from state circuit court) for impartial forum Ex: motor home & boat - if there is sufficient contact between SC and X company, SC can have jurisdiction over X company Personal: the authority of a court to make a decision binding on a person/company because of the presence of the person/company in the territory of the court Power of the court to act over a particular defendant Does the court have authority to decide a case based on the defendant/parties? Ex: a SC state court cannot exercise personal jurisdiction over a publisher in CT unless that publisher has engaged in activity with a connection to SC Cyberspace & Jurisdiction Was there reasonable contact with forum state? Did reporter go to that state for research? Ex: CT paper, NC warden wants to sue paper for libel when he finds article he claims to be libelous & injurious to his reputation NC district court dismissed case and said if he wanted to sue, he must go to CT due to the fact that he had to go onto CT website to find article and reporters/paper had little-to-no contact with the state of NC Criminal Courts vs. Civil Courts Criminal: determine guilt or lack of guilt; government prosecutes persons/entities charged with crimes Cop sees person committing felony OR Complaint investigation arrest with warrant indictment conviction sentence For judge to issue warrant for arrest: go before judge and say you think X is guilty and why (with evidence) Indictment: grand jury looks at case and determines whether or not there will be a trial Civil: determine rights/liabilities/impose damages; cases involving disputes between parties… …challenging governmental actions …seeking to prohibit some action by person/entity (by injunction = equity case) …seeking damages for wrongful acts Civil cases seeking damages are divided between: Contract: seek damages for breach of contract; must be based on an alleged agreement between the parties (ex: rent contract) Suing to recover damages Tort: seek damages for civil wrongs such as negligence Can also be criminal (ex: assault and battery) Civil damages awarded In SC, actual damages must be recovered before punitive damages Actual damages: compensate the injured party for loss suffered at the hands of defendant; put plaintiff in position had damages not occurred & contract had been performed Described as: Statutory: set by law Ex: copyright infringement cases = difficult to determine injuries "Damages Scheme": if you can prove infringement, you can be awarded damages set forth in statute by congress Liquidated: set by agreement Nominal: dollar sum of damages (ex: $1) Punitive damages: rarely awarded in contract case, sought more commonly in tort action Described as: civil fines Purpose: deterring undesirable future conduct by the defendant or others "Exemplary damages": to set an example; deter defendant (or others) from engaging in same conduct in the future (ex: Detention) Law vs. Equity Cases Law case: award damages in breach of conduct or tort Equity case: prevent certain conduct with injunction Ex: restraining order Delaware has an equity court system Heard by chancellor; no jury Corporate structure & corporate management; because law is more favorable for corporations in DE, many are based there even though they mainly operate in different states Specific Performance (SP): no money, but you can get object for original bargain Ex: offer $300,000 for Monet, seller agrees then finds out it's worth more than that & try to sell to someone else = breach in agreement so SP allows the original person to still purchase the painting for $300,000 o File summons file complaint statement (factual assertions by D) discovery motion trial right to appeal Trial Courts vs. Appellate Courts Trial Courts o Evidence is presented to judge/jury o 1st decision made o Some trial courts sit as appellate courts to review decisions of certain lower courts Ex: in SC the civil circuit court, the Court of Common Pleas, may sit as an appellate court to review decisions in magistrate court cases o Lawyers cannot take position in court that is against the law (they also must be truthful), or the lawyer could be sanctioned Appellate Courts o Review trial court; correct errors of trial court o Looks at record of evidence to determine if there was error (typically no new evidence presented) o Looks at record of law to see if correct law has been applied o Party that lost trial appeals and must come forward with evidence to sway the court Respondent doesn't have to do anything, but often will write a brief o 10-10-5 minutes in argument Appellate-Respondent-Appellate o Court asks questions, then will provide opinion Decision is guided by precedent (2 types) o Binding precedent: decision of a higher court must be followed by inferior courts Decisions of the Supreme Court of the US on federal constitutional questions must be followed by all courts in the country o Persuasive precedent: decision of an appellate court not in the hierarchy of the court applying the precedent Can follow the precedent, but is not required to Ex: the Supreme Court of SC considers Supreme Court of GA's decision on similar case SC can base its decision off GA's reasoning, but is not obligated to do so o Unpublished opinion cannot be cited as precedent (sometimes appellate court will publish opinion, other times they will not) o Result in trial legally does not establish precedent; precedent is established by appellate courts' written opinions explaining the rulings made by the court Written opinions in common law cases = how law adjusts to accommodate changes in society (because appellate courts can overrule its previous decisions, but not the decisions of superior courts) Ex: the SC Supreme Court may overrule its prior decisions and the new decision will be a binding precedent for all courts in SC dealing with a similar issue Decision (opinion) contains both: o Holding: language in the opinion necessary to decide the specific question before the court o Dictum: language in an opinion not necessary to decide narrowly the case before court, but language which indicates the views of the court in a way which may influence future cases Federal/state court systems overlap only in limited circumstances (due to dual sovereignty) Ex: CIVIL action in SC; person claims her reputation was damaged by the publication of a false statement Parties o Plaintiff = injured person o Defendant = person/entity from whom redress (in the form of money damages) is sought Location o If both parties are located in SC, the case must be brought in state court o If either party is a citizen/resident of another state, the case may be brought in federal court To initiate the suit, the plaintiff files a summons/complaint with the court and serves the documents on the defendant Summons = document that must be served-on/delivered to the defendant; allows the court to exercise its power over the defendant o Starts a lawsuit; claims jurisdiction over defendant o How a court exercises personal jurisdiction (example): If the defendant cannot be found in SC, the plaintiff has to obtain service of the summons (in one of the ways authorized by statute) to bring the defendant before the court Complaint = contains the allegations of fact on which the relief is sought o In a libel case: plaintiff would allege that on a certain day in a certain publication published by the defendant, false statements injurious to the plaintiff's reputation had been published Statement: the defendant can then Move to dismiss the complaint/case File an answer (to the complaint) o Admits those allegations were true o Denies allegations the defendant wishes to contest o Can raise additional defenses (affirmative defenses) Obligations of the parties Plaintiff: prove facts in support of her case Defendant: does not have a burden of proof against P's allegations, but must prove the affirmative defenses raised in answer Parties engage in "discovery" Requires an exchange of information/documents o American theory of litigation: cases are to be tried on the merits and not by ambush o Involves questions sent from 1 party to another o Request for admissions - request that evidence be admitted for use within the court (opposite of motion to dismiss evidence) Ex: subpoena of phone records and putting on the "record of evidence" to be used in court o Plaintiff typically must prove case Plaintiff bears burden of proof - must tip scales in their favor to prevail Preponderance of Evidence: which side gets the scales to tip in their favor In Criminal cases: beyond reasonable doubt - bar is set higher for defendant to prevail o Deposition: witnesses under oath, asked questions like they would be in court; can be used as evidence in court & inconsistencies with answers between then/court can be pointed out Result: both parties are able to evaluate the relative strength of each side of the case & settle if possible When a case goes to trial Plaintiff: must present sufficient evidence to prove her case o Testimony, photographs, other documents Defendant: can seek to undermine the credibility of witnesses & offer counter-evidence Judge: determines which evidence can be presented to the jury and, at the end of the case, instructs jury on the law o Jury: makes findings of fact; obligated to follow the law as charged by the judge o The jury may award damages if: They find that a plaintiff has met her burden of proof & has been injured by the defendant Amicus Curiae: friend of the court; not on one party's side, but that is permitted by the court to advise the party in respect to some matter of law that directly affects the case in question Losing party can appeal case Some cases tried in state court system can be reviewed by US Supreme Court; must raise constitutional question Ex: libel - New York Times Co. v. Sullivan (1964) Sullivan = elected official in Montgomery, AL during the civil rights movement Supporters of the Southern Christian Leadership Conference (SCLC) posted advertisement in the NY Times asking for contributions to support the SCLC Ad contained descriptions of events that happened in AL Sullivan claimed events were false/injurious to his reputation Sullivan filed libel suit under common law of Alabama in state trial court Jury's verdict: in favor of Sullivan, awarded damages Newspaper appealed to the Alabama Supreme Court Result: upheld (affirmed) trial court's decision/award Newspaper sought review of decision by US Supreme Court File petition for a writ of certiorari o Constitutional question: the award of damages to Sullivan was inconsistent with the free press guarantee of the 1st and 14th amendments to the US Constitution o The paper had raised the constitutional question in both the trial court and the Alabama Supreme Court, but both had rejected the claim Because the case involved a federal constitutional question, the US Supreme Court granted the writ and reviewed the case In Supreme Court Case title: party listed first = lost in lower court o A ("petitioner") vs. B o Known as "petitioner" because they are petitioning for review of the lower court decision Must petition for writ of certiorari (first page of WOC must have the questions presented for review) How the court exercises subject matter jurisdiction (example): o If the case had not involved constitutional question, the decision of the Alabama Supreme Court could not have been reviewed by the US Supreme Court o The US Supreme Court does not review state court decisions based on law unless the application of state law is said to be inconsistent with the federal constitution Sovereign Immunity: comes from England; can’t sue the king Pretty much nonexistent today Start of the country: government = sovereign, which meant it was immune (protected) from suit Only was able to sue with state's permission (very rarely did they allow themselves to be sued) Normally only liable for actual, not punitive, damages Modern day: limitations, but can still file lawsuit against state governments Federal Court System: Structure (top to bottom) Supreme Court 1 Chief Justice and 8 Associate Justices 5/9 majority decides Hears appeals from federal circuit courts & from state court cases involving federal constitutional/law questions Gets to determine which cases it wishes to hear (grant/deny writ of certiorari, which must be petitioned for) Case must raise federal constitutional question Hears cases in its original jurisdiction when one state sues another Determines what US Constitution means Courts of Appeals (circuit courts) Cases are usually decided by three judge panels In some circumstances: the panel decision can be reviewed by all of the judges of the court sitting en banc Country is divided into circuits 4th circuit: SC, NC, VA, MD, WV o Holds court in Richmond, but may hear appeals in other places Hears appeals from lower federal trial courts and (in some instances) from the decisions of federal agencies (ex: the FCC) District Courts Trial is presided over by a single District judge Each state is divided into 1+ districts Each district has federal court (for that district) SC has one district; other states may have more The primary trial courts in the federal system Hears both civil and criminal cases Criminal and civil subject-matter jurisdiction Hears appeals from Magistrate/Judges Magistrate Judges - traffic tickets on base, etc. Other Federal Courts Specialized courts, examples: Bankruptcy Court of claims: hears claims for money damages against the government Court of military appeals: hears appeals of courts martial SC Court System: Structure (top to bottom) Supreme Court of State 1 Chief Justice and 4 Associate Justices Controls jurisdiction by granting/denying petitions for writs of certiorari Determines own jurisdiction Reviews decisions made by SC Court of Appeals Appeals from State Supreme Court go to US Supreme Court Court of Appeals Sits in three judge panels Infrequently sits en banc to reconsider panel decisions Hears appeals from circuit courts and from the Administrative Law Court (despite its name, ALC is part of the executive branch, not the judicial branch) Circuit Courts Divided into civil and criminal courts; both titles have roots in English Law (the foundation for SC common law): Civil = Court of Common Pleas Criminal = Court of General Sessions SC's 46 counties are divided into 16 judicial circuits Because of budget constraints: judges no longer ride the circuit Magistrate Courts Cases tried in these courts: Minor criminal cases (usually with a penalty of less than 30 days imprisonment) Civil cases (where the amount in dispute is $7,500 or less) o Traffic tickets, issues with landlord, etc. Have both civil/criminal subject-matter jurisdiction Appeals from these courts go to the Circuit Court Other SC Courts Specialized courts, examples: Probate Court: hears matters relating to wills, etc. Master-in-Equity: hears matters such as mortgage foreclosures Municipal Courts: hears minor criminal cases in cities and towns Law vs. Ethics Law Ethics Adopted by Adopted by governments organizations Compliance Membership mandatory voluntary Punishment Punishment by government usually exclusion Considerations Be aware of the nature of the case, the law that was the basis for the case, and the process to a decision Was the case a direct challenge to a statute on the grounds that it was unconstitutional? Was the case a criminal case where a defendant invoked the First Amendment in defense? Was the case a civil case for damages? Was the court relying on precedent? Was the court defining the law anew in an area where there was no guiding precedent? Was the court overruling prior precedent to establish a new rule? Was the court a state or federal court? The considerations set the context and provide guidance as to the significance of the case & its reach A decision on a civil case where a plaintiff seeks money damages for invasion of privacy will have influence over SC activities, but the decision may set requirements for publishers that will be different from those set by a VA court When the Supreme Court of the US rules that a public official bringing a state claim must prove "actual malice" on the part of the defendant leading to publication, the rule applies in all states Sources of the law (pg. 4) Cont'd Monday, February 1, 2016 7:42 PM Declaration of Independence = PR document; declare freedom from England; written by Thomas Jefferson Audiences: World - set example and find allies Ex: France joined because hated England (Battle of Hastings) Colonists The crown People of England Great lie: "We hold these truths to be self-evident… that all men are created equal" Slaves, women, children, people who didn't own land ≠ to white, landowning men Articles of Confederation: 13 semi-independent colonies Didn't work well at all; people agreed Power Divine right: how monarchy holds power; given by God Democracy: people give the power Constitutional Convention: late 1700s All white men met secretly in Philadelphia, PA James Madison (VA) and Thomas Pickney (SC) Plans shaped constitution; didn't talk to each other about it Didn't have stature to convince delegates, so they had Randolph introduce plan (even though Randolph didn't agree with it) Constitution Grammatical error in preamble: "more perfect," nothing more perfect than superlative "perfect" Constitution is a limit on federal government power (not private companies/property) Issues that we confronted and were concerned about with new government Trespass after notice: if private company asks you to leave, and you don't, you can be arrested (if came back within 6 months) Ex: passing out pamphlets in front of Hobby Lobby, manager asks you to leave Article 1: created legislator with 2 bodies Congress Senate House of Representatives Power of Congress: A1 S8 Coin money Authority relating to jobs May grant, for limited time, exclusivity of works for artists, writers, inventors Copyrights and patents Commerce Regulate international commerce Regulate inter-state commerce In AOC, NY could impose tariff on NJ, etc. Each state regulates intra-state commerce Deal with foreign nations & Indian tribes Declare war Article 2: created executive branch Vice President President Can veto laws (so that president has some say in legislation); congress can override veto with supervote Did not want president to have too much power to avoid monarchy 2nd president John Adams, NJ, thought there should be another monarchy; son was president later on George Washington had no offspring Article 3: created judicial branch Created 1 court: US Supreme Court Decides questions of constitutional law Supreme = law of the land Congress gets to create other courts States have no say over things the federal government has already acted on Lead to 2 court systems with S. Court of US at top: federal & state People sought protection from the new constitution and the use of executive power (limited government - only has powers given to it) Constitution created new government and limited its power (especially in relation to the BOR) Ratification: allows amendments to be added/ for the constitution to be changed over time First 10 Amendments: Bill of Rights = Bill of Particulars Secured rights of the people; guarantees states representatives in government, but there is no other mention of states in the document 1st Amendment: 5 freedoms (cannot be restricted by federal government; "Congress shall abridge no law…") 1. Speech 2. Press (to prevent prior restraint) 3. Assembly 4. Religion 5. Petition (for redress of grievances) At a minimum, the first amendment protects against prior restraint & censorship o Prior Restraint: before publication, government does not allow publication; in freedom of speech case, the closer to prior restraint, the better the chance at winning case Presumption = starting point; prior restraint is presumed unconstitutional Ex of legal presumption: not guilty (innocent) until proven guilty Prior restraint is not always unconstitutional, it's just presumed as such There are some instances where prior restraint may be permitted Ex: Near v. Minnesota To justify prior restraint, the government bears a heavy burden when determining if the restriction is/isn't constitutional Government must overcome presumption If the government overcomes heavy burden, we can have prior restraint o Censorship: submit to government for government approval Abridgement: constitution does not give rights (those rights existed before const.); they are protected from government restriction/interference o 1st amendment only restricts fed, not states Reasons for Freedom of Speech (pg. 38) o Discovery of truth o Participation in democracy Alien & Sedition Acts: 2nd president, John Adams (1798) - around the time of XYZ Affair in France (1798) Imprisoned & punished people who talked badly of Adams administration Used primarily to punish paper editors/writers that were supporters of Thomas Jefferson (presidential competitor and successor) Never fought in supreme court because Adams lost to Jefferson (1801), who pardoned the affected Because of stare decisis doctrine, S. Ct. never had a chance to talk about sedition until 1964 SDD: law determined in court held up/remains law until new case comes up to change it o Ex: separate but equal o Separate-but-equal law school at SC State trained: Ernest Finney: 1st justice on SC supreme court since reconstruction Matthew J. Perry: lawyer for Edwards v. South Carolina (created precedent for illegal arrests of protestors) 1964: Times v. Sullivan - compared libel to sedition Supreme Court struck down on state law that allowed awards for damages to plaintiff for injuries to reputation o Check on government The 4th estate o Social stability Ferguson v. Missouri Society = pressure cooker Pressure released when people can protest/demonstrate Police didn't allow pressure to escape by allowing protests/demonstrations, so riots occurred Speech protected at minimum from prior restraint; also protects social stability (not disrupts like in traditional assumptions) o Individualistic reasons Symbolic Speech (expressive conduct): engaged in activity to make a point o Ex: arrest due to burning US flag in protest (to prove a point) is not constitutional (unless in special circumstances: burning flag poses threat to start wildfire, etc.) IT IS NOT A CRIME TO BURN US FLAG (and it cannot be considered vandalism because the flag "belongs to the people") o Burning military draft card; protesting draft to Vietnam war by burning card = also not illegal 1st amendment is NOT absolute o Absolute in language, not interpretation Only 2 S. Ct. Justices have ever taken the "absolutist" approach Absolutist - strictly follow constitution; ex: no restrictions on 1st A rights o o Freedom FACILITATES flow of information to the public (citizens need to get information to live their lives) o For the government to restrict the flow of information to the public (free speech, etc.), they MUST have a reason; balancing act - finding where on the line balance is struck Keep in mind, constitution limits the government, not private entities Is the restriction content-neutral/content-based? Government has more power with CN (because it's unbiased) than with CB CN: can have limit on volume, not content; cannot impose on location; real purpose of the restriction is not based on the content of the messages Government cannot decide based on content whether you can/can't use a public forum Time, place, manner restriction (TPM): may result in significant inconvenience/added expense the restrictions are not to limit/control any particular content o Compare to sound difference (vs. noise difference) Noise = opinioned; cannot be measured Ex: noise = music you don't like Scream-o might be noise for me, but not for others Sound = neutral; can be measured In order to be considered TPM (Content-Neutral test): o Government approval is unnecessary o Use consistent guidelines o Leaves no room for discriminatory application How to resolve: strike balance Scrutiny (pg. 61): government must have compelling reason to restrict speech; demonstration that with restriction the government interest will be reserved Minimum Scrutiny: government action is valid if rationally related to any legitimate government interest and if not overboard Intermediate Scrutiny: government action is valid if narrowly tailored to advance a substantial government interest; content-based and content-neutral o Both intermediate/strict tell courts what to look for o Court evaluates what government must prove o When statute is possibly unconstitutional, government has to come to court for scrutiny test Ex: in civil/criminal, bar must be passed to prevail; in government action, the statute must pass strict scrutiny to prevail Civil: plaintiff bears burden of proof; preponderance of evidence, must tip scales in their direction Criminal: beyond reasonable doubt Strict Scrutiny: government action is constitutional only if it proves compelling government interest; content-based, not commercial o CGI: substantial showing that without government interest there will be harm; that the restriction is the least restrictive available to accomplish goal; substantial probability that with this restriction, the government interest is preserved Significant showing by government to justify restriction Government interest = concept in law that allows a government to regulate a certain matter o Based on the Equal Protection Clause of the 14th amendment o Ex: protecting children from porn Proposed: credit card verification Statute prohibits people who have right to view material if they don't have a credit card Under-exclusive: kids could still have access Is it CGI to keep children from porn? Content based; couldn't pass because it would not pass strict scrutiny Can be no broader than necessary to accomplish Credit card verification must be least restrictive alternative to pass 1925: Gitlow v. New York Events leading up to Gitlow: Bolshevik Revolution, Russia (after WW1, 1917-19) o Sent troops to advocate czar o People advocated for communism; scared American people o We were on the wrong side Gitlow = member of communist party; distributed left wing manifesto Treated as threat to government (manifesto advocated violent overthrow of US government) G's conviction upheld 1st decision where S. Ct. ruled that the Fourteenth Amendment’s due process clause required state/federal governments to be held to the same standards in regulating speech. Clear & present danger test: prosecution of speech that was merely advocacy should not be punished; created over time through many court decisions Incitement standard; test to protect speech - means that speech was causing/inciting dangerous and illegal action o While the speech might be advocating illegal conduct, the prospect of dangerous action is slight o Is the prospect of it occurring likely? Doesn't protect intentionally false speech, but inadvertent false speech is protected in certain circumstances Ex: advocating gun action in a classroom where no guns are present vs. advocating gun action at state house where many are packing Brandenberg v. Ohio o B = part of KKK o Prosecuted under OH statute o B's conviction reversed because: His talking of revenge wouldn't incite action and didn't present clear/present danger No likelihood that he'd bring about illegal conduct Compelled Speech: specifically commercial speech; less protection than others Ex: cigarettes must have warning (FDA) restrictions; government can tell companies what to post on cigarettes but cannot tell newspapers to post something (or not to = prior restraint) Compelled financial support: can you be forced to pay university fees when you don’t like specific organizations that it goes to? In most matters, yes, because it's hard to tell what $ and amount goes where Unions are different - can refuse Political advertising: government can't restrict political speech Can't restrict how much $ candidate can spend $ = speech; "money talks" How much $ can campaign accept from donor? Limits (caps) on donations Reporting requirements Citizens United Case Protecting markets: can/do have restrictions Educational Speech Restrictions: different for public/private Morris v. Frederick - "bong hits 4 Jesus" "Ipse Dixit": it is so because I say it so National Security: preservation of the republic; in times of war, judicial review usually comes down to national security Wiki-leagues; The Manning Disclosures Pentagon Papers Case (1942) Truman - war with Vietnam Worker disturbed by intentional falsification to American public, so he photocopied pieces of what actually happened and distributed them to the NY Times and Washington Post Claims: routinely overstated successes in war and understated expenses Government went to court seeking injunction Court in DC (for Post): denied Went on to S. Ct. who ruled the government did not meet burden Per Curiam: an opinion speaking for the court o Normally, one judge writes opinion o Each of the justices wrote separately of why the government did not meet the burden in PPC (pg. 95) Court in NY (for Times): granted Post publication - more likely to be constitutional Espionage Statute - if it has anything to do with spies domestically/internationally, there is automatically prior restraint (not even old information can be released) because it puts lives in danger WW1 ended (victorious & increased cost) revolution/uprising in Russia (Bolshevik) people feared uprising in US WW2 Expectation that US would join WW2 - opposition by German advocates The Patriot Act: 45 days after 9/11 as a response; made it easier to obtain search warrants, conduct wiretaps, collect information about vast number of Americans Bender thinks: serious effort to repeal 4th amendment and that there was a problem with incompetence, not speech Protection of speech = balancing act = not absolute 2nd Amendment: right to bear arms (in relation to militia) o Open carry in TX o If SC General Assembly passes statute to prohibit concealed weapons and you claim it contradicts the 2nd amendment, you can sue the governor or company enforcing the law 3rd: don't have to quarter soldiers in homes during times of peace 4th: prevents arrest without warrant 5th: due process; no testimony against self; no double-jeopardy o 2 types of due process: 1. Procedural Notice Hearing Right to confront opposing witnesses 2. Subsidive Right law will be applied to circumstances 6th: speedy/public trial with unbiased jury; right to attorney 1871: meeting in Charleston, SC to discuss secession; led to Civil War 71% of population had no say in decision (most slaves, etc.) Gains of reconstruction were wiped out when federal soldiers pulled out After Civil War: amendments ratified to take power away from the states 7th: trial by jury in civil cases 8th: no cruel and unusual punishments 9th: un-enumerated rights (ex: right to privacy) 10th: rights not specifically given to federal government are reserved for the states 14th Amendment: no state should deprive life, liberty, property to any individual without due process of law o Due process clause of 14th amendment: "without due process" adopted after Civil War o 1925: The Doctrine of Incorporation; Supreme Court decided 1st amendment freedoms were to be included in 14th Gitlow v. NY Both 1st and 14th are to prevent restrictions of speech/press by government: licensing, prior restraint (at min; applies to so much more!), etc. o 1942: Chaplinsky v. New Hampshire Chaplinsky = Jehovah's Witness, standing at street corner distributing pamphlets in Rochester, NY Drew an unsupportive crowd; cop tells Chap to chill out, but should have told crowd to calm down (probably did not like J. Witnesses) Chap calls cops fascist & racketeers (fighting words) 1942: fascists (Nazis and Italians) in WW2 - socially unacceptable Not arrested on first instance, just escorted to jail In criminal law: escort to jail = arrest because ability to move is restricted Found guilty under statute went to Supreme Court of NH and conviction was upheld Chap appeals/petitions to US Supreme Court Chap had to say the rights were protected by 1st and 14th amendments for US Supreme Court to even see the case Chaplinsky's conviction upheld - put a limit on 1st amendment rights Effort of US Supreme Court to rewrite 1st amendment Court now says fighting words are not protected by the constitution, unless they are of value Government has almost unlimited power to restrict/punish "lewd and obscene, and fighting words" Holding: fighting words Directly from case, necessary to determine outcome Dictum: the other two categories added outside of the case (unnecessary to make decision) Influence future decisions Might as well be holding because lower courts must now consider all Both holding/dictum = unprotected speech Boundary dispute: is speech inside/protected, or outside/unprotected? Chap vs. NH - penny vs. quarter = different values Some words have more value than others (like example above) First time values had been applied to speech SC Constitution Article 1, Section 1: all political power reserved to people (power comes from people of SC) Section 2: freedoms are the same as those guaranteed in the 1st amendment of US constitution Coding - used to find precedents in previous cases Volume, Page Number, Section, Title, Year of Decision o SC Code of Regulations o Federal Code of Regulations Chaplinsky v. New Hampshire o 17 USCA S107 US Code Annotated o 315 U.S. 568 US Supreme Court Decisions o 62 S. Ct. 766 Supreme Court Reports o 30-4-110 SC Code of Laws o 86 L. Ed. 1031 (1942) Law Edition Defamation Tuesday, February 9, 2016 4:51 PM Defamation: the publication of a false statement of fact, of and concerning a person/entity, that is injurious to reputation by holding the person/entity up to scorn, ridicule or abuse; injury to the reputation due to false publication Reputation: public persona; how the world views someone 2 types of defamation: Libel & Slander 1. Libel - written Most cases/liability Widespread; typically broad form of communication for defamation case Ex: broadcast defamation Started at common law in England (ecclesiastical church court), where it was a strict liability tort Liability without fault The imposition without proof by plaintiff was on fault of defendant Presumptions of Libel (in CL): The publications claims = false Injury - entitled to damages Malice - opened door for punitive damages In CL, the interest of the government: protection of reputation Words can change meaning; words alone without presumptions is not automatically defamatory Ex: in SC, years ago, it was defamatory to publish that a white person was black, but not to publish that a black person was white; race may no longer be considered defamatory today Determining whether speech is/isn't defamatory: Did accuse of crime? Go through presumptions Guilt is established in trial Legal privilege: immunity from liability Ex: Trexlor Case - immune from liability when referencing public records (regardless of inaccuracies/falsities within them) Arrest = public record; twin gave name of other twin when arrested Press release on arrest was false due to inaccuracies in public records 1964: Sullivan v. NY Times: Montgomery, AL; Christian Civil Rights Org. posted full ad in NY Times of the mistreatment of Civil Rights supporters in South, asking for $ to support movement MLK arrested 8x, people locked out of café, etc. Sullivan supervises Montgomery Police Force; said the ad was injurious to his reputation because he was in charge/the claims were false/inaccurate Sullivan sued NY Times 1st time: recovers $500K in AL - no black people on jury NY Times claims not subject to jurisdiction in AL AL denied motion; appealed to AL Supreme Ct; verdict confirmed In order to get appealed to S. Ct, NYT had to raise question of 1st and 14th amendments Needed writ of certiorari - petitioned to get writ S. Ct. saw case as abuse of free press Could have dismissed, and said S needed to go to NY to battle, but assumed jurisdiction This was the first time the S. Ct. made clear link between the constitution and state's defamatory cases Decision: most important decision of 20th century Found abuse in free press Public official public role actual malice When P is public official & publication is about public role, he has to prove actual malice with clear/convincing evidence Actual malice = person making decision to publish knows it's false (not presumption) or had reckless disregard of potential falsity Reckless disregard: serious doubt of truth but publishing anyway Kurt's Publishing Co. vs. Butts Butts = UGA football coach in 1960s Traveling salesman overhears conversation, calls magazine Story suggesting coach Butt is throwing football game against A
Are you sure you want to buy this material for
You're already Subscribed!
Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'