J618 Quiz 1 study guide
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Vocabulary Words in Blue ltaics J 6 18 First Amendment and Society Quiz 1 Study Guide Chapter 1 Court Systems Citations and Procedure Reading Notes Chapter Objectives L I Know the difference between federal and state court systems 2 Distinguish criminal and civil cases 3 Explain locate and identify various sources of law 4 How precedents will affect outcomes of new cases The TWO Court Systems Federal Court and State Court Each has symmetrical trai courts appellate courts and supreme courts 1 Trail Courts First trial process 2 Appellate Courts Court where there is an automatic right to appeal 3 Supreme Courts Highest level court within the system in which an appeal is possible Federal Courts trial courts are called District Courts 0 organized by state 0 some states are their own one district others are divided into multiple districts states fall within various Circuits State Courts main difference names of the courts can vary 0 can be confusing o for example most states call their highest court the Supreme Court but New York calls theirs the Court of Appeals which is what most states call their intermediate court The Two Systems Run Parallel To Each Other A case goes through one system or the other it cannot go through both One Exception if a state s highest court decides a case involves a constitutional issue a party can attempt to appeal the decision to the US Supreme Court In Which State Should A Case Be Filed A case can be filed in Federal Court only if it is one of the following 1 Prosecution of a Federal Crime The case is based on a federal statute or the Constitution The United States itself is part of the lawsuit PPU39N There is Diversity Jurisdiction Diversity Jurisdiction means the parties in the case are from different states Allows a party to choose federal court instead of state to avoid bias based on the location Only permitted if the amount in controversy exceeds 75000 All other cases can be filed in State Courts IMPORTANT Constitutional Claims are NOT required to be filed in Federal Court If a case is improperly filed in Federal Court the case can be remanded to State Court Removal is the process in which a case is filed in State Court but the party can try to remove it to Federal Court if Diversity Jurisdiction exists Civil Cases vs Criminal Cases Prosecutoria Discretion in criminal cases the prosecutor has the option to decide if and which crime they charge someone with ex the decision to charge someone with Manslaughter or Murder in civil cases the plaintiff chooses who to sue Respondent Superior important for understanding who is responsible for blame in civil cases ex EMPLOYER is responsible for EMPLOYEES There are TWO primary kinds of cases 1 Civil 2 Criminal Each type has its own procedure and terms CIVIL CRIMINAL Parties Involved A plaintifffiles lawsuit against a defendant A case is brought by prosecutor against defendant Usually state vs defendant or people vs defendant What Is Sought In most cases money damages Injunction an order to stop publishing Declaratory Judgment an order declaring a person holds copyright Jail Time Fine Probation etc The punishment for a crime Rules Applied Rules of Civil Procedure Rules of Criminal Procedure Burden of Proof Plaintiff Has Burden The plaintiff must prove by either a claim of preponderance of the evidence meaning it is more likely than not that their claims are true However there are times when the plaintiff must prove something by clear and convincing evidence a higher standard Prosecutor Has Burden Prosecutor must prove defendant s guilt beyond a reasonable doubt requires that there be enough evidence that reasonable people do not maintain guilt about doubt does not require 100 fool proof evidence of guilt The defendant does not have to prove their innocence Subject Matter Torts wrongs these often include contract claims property disputes etc Crimes Types of Media Law Involved Libel ln vasion of Privacy Right to Publicity Breach of Contract Fraud Copyright and Trademark lnfringement such as mass pirating Obscenity Laws Child Pornography Five Primary Sources of Law Relevant to Media 1 Constitutions All laws in state constitutions must comply with Federal constitutions 2 Statutes Federal Statutes 0 Laws passed by Congress confided in a book called the US Code USC States have their own codes 3 Regulations Federal Regulations 0 Rules that are made by federal agencies to implement federal statutes 0 ex Federal Communications Commission FCC requires broadcasters to behave in certain ways 4 Executive Orders President or Governor in state cases issue executive orders These set forth a procedure or declare how an agency in the executive branch should operate 5 Cases When a court decides a case or issues within a case the resulting opinion is often published Precedents Precedent also called authority a rule that has been established by a court in a prior case referred to for guidance in later cases Two Types of Precedents 1 Mandatory Authority A precedent the court is obligated to follow 2 Persuasive Authority Used to influence cases Often considered but not mandatory to follow Stare Decsis the notion that judges are generally expected to adhere to precedent creates consistency in legal hearings other than the process of appeal and the recognized value of stare decisis there is no obligation of the court to adhere to precedent Chapter 1 Court Systems Citations and Procedure Class Notes 0 January 23Ircl 0 Important Questions What is Law The law leaves much room for interpretation A body of rules prescribed by a controlling authority Black s Law Dictionary A set of rules with penalties for not following them Laws like stability consistency What are the Court Systems Federal System and State System Separate but Symmetrical FEDERAL US Supreme Court DO NOT have right of appeal S Court of Appeals Circuit Court Automatic right of appeal US District Court STATE Highest State Court Appellate Court Trail Courts 1 Trial Courts where you are tried and convicted based on a set of laws often have onejudge 2 Appellate Courts Panel of 3 judges 23 must agree Looking for errors in the law usually either 1 The wrong law was applied 2 The right law was applied but it was misread or applied incorrectly You can appeal a decision if you believe the court interpreted or applied the law wrong 3 Supreme Courts Do not hear facts or evidence The argument is based on the aw and the application of the law How US Supreme Court Decides What Cases To Hear 4 out of 9 judges must agree to hear a case 5 out of 9 judges must agree in the final decision 7000 10000 cases petitioned each year only 100 heard Ajudge s personal views and beliefs influences their decisions as a judge Deep Circuit Split the number one predictor of when US Supreme Court will take a case ex Brown vs Board of Education Thurgood Marshall went around the country and would lose in one circuit then win in a different circuit it forced the US Supreme Court to come in and make a consistent ruling January 23 I 0 Where Does The Law Come From People Who can make or propose a law President Congress and Legislatures Judges in the form of Precedents Citizens in the form of Referendums Referendums petitions binding and non binding if you achieve the required number or signatures the legislature is legally obligated Different Types of Law Statutes Constitutions Regulations Executive Orders P PPP Cases We have a highly criminalized society IMPORTANT Rarely is the passing of a statute the last word Language Problems Laws and statutes must be clear Examples of Vague Words With the intent to I hard to prove intent Substantial amount of distress I what is substantial I how much is substantial I what if the victim in question is especially sensitive Important for laws not to be over regulating When read end to end it should be consistent the words should fit and flow together Lawyers often use vagueness and ambiguity to their advantage as lawyers January 28th 0 First Amendment Includes More Than Press and Speech Religion Practice and establishment Right to Assemble Right to Petition Your Government Federal Constitution is a m not a M it represents the minimum amount of rights you have as a citizen you can never have a law that conflicts with the Constitution Types of Laws and Enforcements Regulations some statutes create organizations that regulate rights ex Federal Communications Commission FCC ex Federal Trade Commission FTC regulates advertising truth in ads puffery ex Federal Elections Commission FEC make rules for political campaigns Executive Orders directives that tell executive branch officials how to do theirjob tells someone who is responsible for enforcing a law how they should do so Case Law dispute over facts dispute over law when law remedy is insufficient allows judges to make decisions based on their own opinions Chapter 2 The First Amendment Theory and Practice Reading Notes First Amendment Scope of Coverage 1St Amendment Limit On What Government Can Do The first amendment is part of the US Constitution Bill of Rights Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the Government for a redress of grievances As part of the constitution it applies to State Action it restricts government power not private parties Constitution outlines government powers Bill of Rights was attached to set specific limits on those powers Regulations on Government By 1st Amendment the most obvious and relevant applications are government regulations and punishment 1st Amendment is designed to prevent government censorship or compulsion when the government tries to restrict speech force speech or impose criminal sanctions for speech classic issues dealt with through the 1st Amendment Media Law Issues media laws regulated and punished by government regulation of commercial speech advertising obscenity laws threats in cases involving student speech or government funded speech the US Supreme Court has been willing to tolerate more restrictions on speech When Is 1st Amendment is Used in Private Cases 1st Amendment is for regulating government power not private parties HOWEVER when private parties sue for libel for example they are using the courts to broker their dispute and enforce a judgment they use the state which involves the government Conclusions Drawn from Court Decisions on Free Press 0 Protection of newsgathering balanced against other interests for example courts will grant 1st Amendment rights to an extent but they also implement laws to protect privacy newsgathering does not always win out over privacy Courts have been reluctant to grant special rights to press journalists and the press have the same rights as the public courts are reluctant to say law is unconstitutional for the press but fine for the public EXCEPTION potential protection of journalists from subpoenas The press may have more access when serving as a surrogate to the public when press is needed to ensure that info flows freely to the public less of a right of the press more of a right for the public to have access to information The 1st Amendment does not apply to private action when private companies such as private schools employers and even your parents censor you it is outside the scope of 1st Amendment you may object to this censorship for ethical reasons but there are no enforceable 15t Amendment rights in these cases Theories of the 1st Amendment There are several theories as to how the 1st Amendment should be applied 1 Theory of a Marketplace of Ideas Marketplace of Ideas ideas should be aired freely and this will allow the public to compare competing ideas notion that the truth will prevail CRITICISMS 1 No Objective Truth a model based on the triumph of truth is flawed there is no truth with a capital T no overall truth 2 Dangerous powerful interest groups will have better chance to promote their ideas and have them adopted regardless of inherent truth 3 False Ideas Will Cause Harm this model fails to account for the short term harm false ideas cause 2 Theory of Self Government freedom of speech naturally derives from principals of self government to self govern people need information facts and opinions to make informed decisions CRITICISMS 1 Allows for Restrictions Speech could be restricted or censored if it is unrelated to self government 2 Society as aWHOLE over the INDIVIDUAL Needs of a nation override individual freedoms 3 Theory of Individual Freedom Concept of Individual Freedom People need to express themselves CRITICISMS I There are always other interests that compete with individual freedom 4 Meiklejohnian Theory Doesn t protect any other free speech besides politics 5 Checking Value Government has a monopoly on raw power they make laws interpret laws enforce laws etc allows us to be watch dogs 6 Tolerance most recently developed theory developed by Colombia University President DOES NOT promote idea that to protect more important speech we must put up with offensive speech suggests we should embrace this speech and this makes us a more tolerant people 1st Amendment Doctrines Doctrine a set of principles used to sort out issues and guide courts in making decisions attempts to categorize situations and ideas in a meaningful way 1St Amendment doctrine shows us how to decide whether a particular instance of speech should be protected or not Overarching Ideas 1 Courts Have Organized Speech Into Protected and Unprotected Categories Unprotected Speech 1 2 3 Obscenity Fraud lncitements to Violence there are tests courts use to determine if speech falls into these categories if speech falls into unprotected category no further analysis is needed recent debate as to whether or not there should be categories of unprotected speech other than the three recognized but courts have declared that they are no currently prepared to recognize any other categories as unprotected Protected Speech even when speech falls into this category there are still times when it can be punished or banned US Supreme Court has established various tests Central Hudson Test Regulations of commercial speech O Brien Test Cases involving symbolic speech Actual Malice Test Standard Libel cases Must prove that the speaker had actual intent of malice Tests are applicable in particular situations to determine whether the 15t amendment protects the speech at issue or whether the speech can be punished or regulated 2 Varying Levels of My Applied to Each Case Strict Scrutiny the speech is presumed to be very important 1st amendment is likely to protect it Intermediate Scrutiny somewhat important speech courts consider other factors 3 Courts Must Preserve Due Process certain considerations must be applied when evaluating constitutionality of a law laws must not be vague overbroad or viewpoint discriminatwy Types of Failures in Laws 1 Vague A vague law is poorly written ex a law prohibiting offensive speech concept of offensive is too subjective 2 Overbroad Poorly written in sense that it applies to more things than necessary over regulating ex government wants to regulate child s access to online pornography decides to block all sites with the word breast this restricts access to the pornography sites as well as sites with information about breast cancer 3 Viewpoint Discriminatory Facial Challenge the plain language of the law is so clearly unconstitutional that it cannot stand ex SCOTUS invalidated the Stolen Valor Act a law that punished false statements about having earned military honor because court found that falsity on its on was insufficient basis m that bans speech Unconsz iz uz iona As Applied a law that has been enforced in a way that improperly infringes on a person s 1st amendment rights ex court found flag burning law to be unconstitutional as applied to a protestor who burned the flag for expressive purposes Government Regulations and Enforcement Government Regulations Should Be Viewpoint Neutral Viewpoint Neutral regulations should not punish speech based on one s stance toward an issue or topic Content Neutral laws that do not depend on the content of one s speech ex a law that prohibits a sound truck from driving through residential neighborhoods after a certain time and playing audio at a certain level does not regulate the speech based on the content but instead based on the volume and location Government Regulations Should Be Applied Fairly to ALL Government regulations should not be applied in an arbitrary or discriminatory manner ex SCOTUS struck down ordinance requiring newspaper publishers to get a license to put news racks on public sidewalks because the law gave too much discretion to the public officials who issued the licenses and thus decided whether or not the publisher could distribute their paper Chapter Conclusions 15t Amendment is not self executing it requires litigation Determination of 1st amendment violations are subject to the discretion of judges and justices 15t amendment only applies to state action there are very few unprotected speech categories it is difficult to predict what will create liability Chapter 2 First Amendment Theory and Practice Class Notes 39 February 4th 0 America The Back Story Colonial America had TWO Main Ways of Restricting Speech 1 Licensing Required any printers to get a license 2 Seditious Libel Made it a crime to criticize the king or church Persistent Problems 0 Alien and Sedition Acts 1798 only 7 years after drafting of Constitution said you cannot criticize the president or congress the reasoning French terrorism and ideology Jefferson elected and pardons everyone convicted by this act and repeals it This act is still used when US justifies restraints on speech out of fear there have been more leakers and whistleblowers convicted in the last 10 years than ever before 0 WWI and WWII 0 Red Scare 0 Terrorism Founders wanted to prevent against these things with the ist Amendment Entire Amendment I 48 Words Important Part 2 14 Words Cast Of Characters The People Who Made the 1st Amendment What It Is Today 1 Larry Flint Publisher of Hustler magazine Sued many times both civil and criminal Obscenity laws 1988 SCOTUS case 2 Paul Branzburg Wrote story in Louisville W about people selling and doing drugs 3 Frank Collin Wanted to march Neo Nazi group through predominantly Jewish town Case went to SCOTUS who ruled that there cannot be a law permitting the assembly of the group However Collin doesn t ever go through with the march 4 George Carlin The 7 Words You Can Never Say On Television monologue in the 1970s arrested immedietly after performing it onstage radio station cited after he performed it on the air SCOTUS ruled that the FCC regulation and sanction of radio is legal and develops a list of words you cannot use Developed many regulations in the broadcasting world ex Broadcast vs Cable Networks 5 Fred Phelps Leader of the Westboro Baptist Church Prime example of the requirement of the ist Amendment to protect unpopular speech Concept of Intention to Cause Emotional Distress 6 Richard Nixon Pentagon Papers case reporter Dan Elsberg was charged with setting up study of Vietnam War saw discrepancies between what the White House was saying and the results of his study Pentagon Papers was a 10000 page document Elsberg sends it to news outlet they print the document Nixon tries to put a stop to it A federal judge approves the order to stop the New York post from printing it then a new paper starts printing it and the cycle continues until SCOTUS rules that it is unconstitutional to prevent them from printing it February 9th 0 Areas of Unprotected Speech Fighting Words hasn t been used as a defense since the 1960 s incitement inciting people to violence and giving them the tools to inflict violence actual credible threat you come with me to inflict violence True Threats I will inflict violence on you threats made by someone who has the means to carry out those threats
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