Test One Study Guide
Test One Study Guide MC401
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This 14 page Study Guide was uploaded by Sally Immel on Monday February 23, 2015. The Study Guide belongs to MC401 at University of Alabama - Tuscaloosa taught by Dianne Marie Bragg in Spring2015. Since its upload, it has received 478 views. For similar materials see Mass Communication Law & Regulation in Journalism and Mass Communications at University of Alabama - Tuscaloosa.
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Date Created: 02/23/15
MC 401 Test One Legal Casg 3 Schneck V United States 1919 90 Charles Schneck guilty of violating the Espionage Act for printing and mailing draft resistance materials Schneck lost on his appeal that the Espionage Act violated the First Amendment Freedom of Speech is NOT absolute The Espionage Act was constitutional 0 Abrams V United States 1919 72 Convicted for distributing lea ets encouraging US factory workers to strike Such actions would halt the production of weapons to be used against Russian revolutionaries Supreme Court affirmed the conviction Bad tendency test but Justices Holmes and Brandeis dissented 0 Gitlow V New York 1925 72 Benjamin Gitlow published The Left Wing Manifesto advocating the violent overthrow of the US government He was convicted under a New York criminal anarchy law The Supreme Court affirmed Gitlow s conviction I Established the Doctrine of Incorporation o Linked the 1st amendment to the 14th amendment through the due process clause 9 Court still applied the Bad Tendency test o Holmes and Brandeis dissented again and held to the quotClear and Present Danger Testquot 392 The Smith Act 1940 Made it a crime to advocate violent overthrow of the government Used to convict communist party leaders in US In 1951 the supreme court ruled against the defendants Dennis V US 72 In 1957 Justice John Marshall Harlan wrote for the court when it overturned the convictions that there must be advocacy for actual action Page 56 3 Brandenburg V Ohio 1969 Per Curiam I KKK leader convicted for violating an Ohio Law making it illegal to engage in quotmere advocacvquot quotcan t even discuss itquot of an illegal action at a future time The supreme court overturned the conviction of the KKK leader Clarence Brandenburg Modi ed the clear and present danger test Brandenburg ended the use of sedition charges to stop antigovernment speech no one else is charged with sedition 0 Near V Minnesota 1931 54 jay Near published quotThe Saturday Pressquot targeting Catholics Jews Blacks and labor unions Near was convicted under the Minnesota quotPublic Nuisance Lawquot Supreme court ruled the statute violated the rst amendment Supreme court adopted the Doctrine of Prior Restraint o Prior restraints presumed unconstitutional o Government bears a high burden o Restraint must be very narrow 9 Speech outside scope of rst amendment may be restrained after a judicial proceeding to determine it is not protected Pornography especially child pornography false advertising 0 New York Times V US 1971 Per Curiamauthor listed 63 Pentagon Papers Nine separate concurring and dissenting opinions ISSUE does national security justify prior restraint of the press HOLDING the government failed to meet its heavy burden of justifying the prior restraint Af rmed the press as a government watchdog 0 Nebraska Press Association V Stuart 1976 54 ISSUE did murder trial gag order violate freedom of the press HOLDING prior restraint burden not met Why is it important for it not to be published 0 1 Imminent and serious danger o 2 There are no alternatives change of venue o 3 Stopping the speech will stop the danger will it stop speculation O 06 O 69 O 00 239 RAV V St Paul 1992 0 Virginia V Black 2003 Chaplinsky V New Hampshire 1942 Terminello V Chicago 1949 Cohen V California 1971 o The order cannot be vague or overboard 90 Fighting Words Doctrine Chaplinsky yelled quotYou are a goddamned racketeerquot to a marshal trying to stop him from preaching on a public sidewalk State statute prevented intentionally offensive speech Supreme court upheld his conviction for using quot ghting wordsquot 54 Terminello violated a Chicago statute by yelling insults at a group protesting his antiSemitic speech The supreme court ruled the statute was overbroad it allowed convictions for both ghting words and protected speech Fighting words must be aimed directly at an individual 54 Paul Robert Cohen entered Los Angeles county courthouse with a jacket that said quotF the draftquot Fighting words were not directed at an individual and were unlikely to provoke physical action quotOne Man s vulgarity is another s lyricquot Justice Marshall Hadan 90 A St Paul Minnesota ordinance prohibited ghting words on the quotbasis of race color creed religion or genderquot The supreme court ruled it unconstitutional not content neutraI quotit prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses Beyond the Burning Cross By Edward J Clea ry The state had to prove that the purpose was to intimidate Justice Sandra Day O Connor Plurality Threatening Speech Cross burning is not prima facie evidence of an intent to harm KKKideology Intimidating speech can be a quottrue threat if it has the intent of placing the victim in fear of bodily harm or deathquot O 90 O 90 O 90 O O O O O O O O O O O 90 90 90 90 90 90 90 90 90 90 90 O O O O O 90 90 90 90 90 There has not been a quotdefinitive casequot for prescribing a threatening speech test Texas V Johnson 1989 Johnson intended to express a message Spectators understood he was protesting some aspect of the US gov t Svmbolic Speech Doctrine United States V Alvarez 2012 63 The Stolen Valor Act outlawed lying about military honors Alvarez lied about being a medal of honor recipient The court said the law was written so broadly it infringed on free speech Some of the justices suggested law could be rewritten to focus only on those who lie about military awards in order to gain bene t United States V O39Brien 1968 O Brien expressed a message people understood it but the draft card law was not content neutral it s purpose was to require men to carry the card to prove registration Case Timeline The Alien and Sedition Acts 17981801 Schneck V United States 1919 90 Abrams V United States 1919 72 Gitlow V New York 1925 72 Near V Minnesota 1931 54 The Smith Act 1940 Chaplinsky V New Hampshire 1942 90 Termineo V Chicago 1949 54 United States V O Brien 1968 Brandenburg V Ohio 1969 Per Curiam New York Times V US 1971 Per Curiam author listed 63 Cohen V California 1971 54 Nebraska Press Association V Stuart 1976 54 Texas V Johnson 1989 RAV V St Paul 1992 90 Virginia V Black 2003 Plurality O O O O O O O O O O O 90 90 90 90 90 90 90 90 90 90 90 United States V Alvarez 2012 6 3 CRITICAL DATES IN THE HISTORY OF SEDITION LAW IN THE 1735 1791 1798 1917 1918 1919 1927 1940 1951 1957 1969 UNITED STATES In book Acquittal ofJohn Peter Zenger Adoption of the First Amendment Alien and Sedition Acts of 1798 Espionage Act Sedition Act Clear and present danger test enunciated Brandeis sedition test in Whitney V California Smith Act adopted Smith Act ruled constitutional Scope of Smith Act greatly narrowed Brandenburg V Ohio substantially curbs sedition prosecutions MC 401 TEST 1 STUDY GUIDE Chimters 13 except student Speech pp 91114 Know the First Amendment Completely Congress shall make no law respecting an establishment of religion or prohibiting 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 Know the following this list is not all inclusive but close 1 Constitutional InterpretationsFirst Amendment theories and their proponents those who support those beliefs ie Justice Hugo Black absolutist o Constitutional Interpretations gt Original Intent originalism the constitution is a binding contract to be followed Justice Clarence Thomas Antonio Scalia Alito gt Non Originalist interpretive the constitution should be interpreted in light of societal changes ie voting rights Does NOT simply mean interpreting each case on its own or based on opinion Few records offer explanation of what the first congress had in mind Justices Ruth Bader Ginsberg and Stephen Breyer 0 First Amendment Theories gt 1 Absolutist Theorv O O O The First Amendment presents an absolute or complete barrier to government censorship No Law shall abridge freedom of expression The government cannot censor the press for any reason There are no exceptions no caveats and no qualifications A majority of the Supreme Court never has adopted an absolute position Justice Hugo Lafayette Black UA grad gt 2 Ad hoc balancing Theory 0 0 Freedom of speech and press are two important human rights Often con ict responsibility of the court to balance the freedom of expression with other values Example right to freedom of expression must be balanced with the need for secrecy in the military More of a strategy on a casebycase basis leads to uncertainty which creates a chilling effect because we don t know exactly what our rights are Rarely invoked as a strategy these days except by judges unfamiliar with First Amendment law gt 3 Preferred position balancing theory 0 Some constitutional freedoms are fundamental to a free society and consequently are entitled to more judicial protection than other constitutional values are Presumes government speech and press limits are unconstitutional 0 Places burden of proof on government as in prior restraint gov t must 0 prove that their censorship is justified and is not a violation to the First Amendment 0 gt 4 Meiklejohnian TheorV 0 Alexander Meiklejohn 18721964 means to an end 0 Free expression related to selfgoverning is absolutely protected 0 Distinguishes public or political speech from private speech How do we define political speech 0 Political speech is most protected say what you want there cannot be government interference with such expression 0 You get what you need to be an educated citizen 0 gt 5 Marketplace of ideas TheorV O The truthseeking rationale for free expression 0 Can be traced back to John Milton Paradise Lost 0 Common condemnations are that much shoddy speech such as hate speech circulates in the marketplace of ideas despite its lack of value and that access to the marketplace is NOT equal for everyone 0 The premise of this idealistically free and fair competition of ideas is that truth will be discovered or at the very least conceptions of the truth will be tested and challenged 0 Supreme Court Justice Oliver Wendell Holmes Jr I The best test of truth is for it to be accepted in the competition of the market Abrams V United States gt 6 Access TheorV 0 Freedom of the press belongs to the man who owns one AJ Liebling 0 Access to the metaphorical marketplace of ideas is NOT equal for all but is skewed in favor of those with the most economic resources 0 Publications should open their pages to the ideas of the readers if not the obligation falls upon the government to force access to the press 0 Supreme Court unanimously rejected the access theory in 1974 The First Amendment does not give the government the right to force a newspaper to publish the views or ideas of a citizen 0 Fairness Doctrine for broadcast ended 1987 2011 gt 7 SelfRealization TheorV 0 Speech is important to an individual regardless of its impact on politics or its benefit to society at large 0 John Locke gt Checking Valve Theory 0 Vincent Blasi O Watchdog function the press checks the power of government 0 Abuse of government is an especially serious evil more serious than abuse of private power gt Stable Change Theory 0 Thomas Emerson 19081991 0 The system of Freedom of Expression 1970 0 Free Expression can act as a safety valve suppression of speech may cause violence The progress of a society can take place without destroying the O society reform or revolution gt Individual or SelfFulfillment Theory 0 John Locke 16321704 0 Two treaties of civil government people have natural rights 0 Suppression of speech suppresses an element of humanity 0 New opinions are always suspected and usually opposed without any other reason but because they are not already common 0 There will always be resistance to new ideas 2 Law SourcesSupreme Court Basicsthe Supremacy Clause 0 Sources of the Law 7 gt 1 Common Law 0 Single system of law worked out by jurists and judges O Called common law to distinguish it from the Ecclesiastical church law 0 Many times judges were forced to create the law themselves judge made law problem lack of accountability and inconsistencies in rulings O Offered stability and exibility ability to adapt to change 0 Judges should look to the past and follow court precedents Su Decisis Let the decision stand A judge should resolve current problems in the same manner as similar problems were resolved in the past builds predictability and consistency judicial legitimacy gt 2 Equity Law 0 Rules and procedures are far more exible than common law Never tried before a jury 0 Rulings come in form of judicial decrees not in judgment of yes or no 0 judges are free to do What they think is right and fair in a specific case 0 Not bound by precedents 0 Not always monetary judges can issue orders that can either be preventive prohibiting a party from engaging in a potential behavior it is considering or remedial compelling a party to stop doing something it is currently doing 0 Typical remedies in equity law I Temporary Restraining Order TRO I Preliminary injunction I Permanent injunction gt 3 Constitutional Law federal and state 0 There are many constitutions in the country the federal constitution state constitutions city charters and so forth I Provide the plan for establishment and organization of the gov t I Outline the duties responsibilities and powers of the various elements of the government I Usually guarantee certain basic right to the people such as freedom of speech and freedom to peaceably assemble Highest authority federal and state 0 There are 2 primary views of the constitution Originalist and O interpretivenonoriginalist 0 Very difficult to adopt or change a constitution state constitutions are approved or changed by a direct vote of the people 0 Considered most important source of US law 0 27 amendments in US constitution first 10 are Bill of Rights gt 4 International Law 0 Informal formal treaties O gt 5 Statutorv Law 0 Created by elected legislative bodies at the local state and federal levels COO 0000 Specific and precise Bills are enacted and become statutes Statutes tend to deal with problems affecting society or large groups of people in contrast to common law which usually deals with smaller individual problems Can anticipate problems and common law cannot Collected in codes and law books instead of reports as is common law gt quotquot US criminal laws are all statuary laws Examples City and county ordinances laws made by state legislatures acts of congress gt Administrative Law 0 O O O O Regulates federal and state government agencies Passes law and regulations Interprets those laws and regulations Enforces compliance Examples of communication agencies Federal Communication Commission FCC Food and Drug Administration FDA Federal Election Commission FEC Federal Trade Commission FTC Securities and Exchange Commission SEC gt 7 Executive Actions or Orders I Executive government officers make laws with executive orders or proclamations based on existing statutory power No action by congress or state legislature required Homeland security Department Judicial appointments I Executive restraints powers limited by the constitution or charter that establishes the office can be overturned by the legislature or a court if the executive has exceeded his or her power 0 Supreme Court Basics gt Justices of the Supreme Court 9 0 0000000 0 Sonia Sotomayer Stephen Breyer Samuel Alito Elena Kagan Clarence Thomas Antonin Scalia Anthony Kennedy Ruth Bader Ginsburg John G Roberts Jr Chief Justice gt US Supreme Court 0 0 10000 annual petitions Fewer than 100 cases reviewed annually 0 Chief Justice is head of the federal judiciary in charge of administrative matters not the boss of other justices 0 Can overrule a state supreme court ONLY when the state law violates federal law 0 Has original and appellate jurisdiction original in disputes between states 0 The supreme Court s primary task established by congress is to act as an appellate tribunal for cases already decided in lower federal and state courts courts of last resort 0 Supreme Court term one year beginning in October Meet the first Monday in October 0 Writ of Certiorari a supreme court writ agreeing to hear a petitioner s case 0 Rule of Four at least four justices think a case has merit to receive a writ 0 Direct appeal these are usually rejected gt Supreme Court Opinions 5 O 1 Opinion of the court Majority opinion a justice voting with the majority writes the opinion Chief Justice or senior member in majority decides who writes an opinion 0 2 Concurring opinion a Justice does not COMPLETELY agree with the court s rationale opinion may agree for different reasons may emphasize a specific point of law not addresses in the opinion 0 3 Dissenting opinion Majority opinion later litigants can use to change opinion Example Justice Hugo Black s 1942 dissent state court defendants have some right to counsel as federal defendants O 4 Plurality scontrolling opinion no majority opinion no rationale or opinion has five votes 423 more justices agree on this than other opinions more numerous since 1970 as the court has tended to fragment on doctrinal lines 0 Per Curiam unsigned by the court 0 5 Memorandum Orders The court announces the vote without giving an opinion usually cases of little legal importance gt The Supremacy Clause gt The constitution and the laws of the US are the supreme laws of the land gt This clause establishes that the federal constitution and federal law generally take precedence over state law even state constitution 3 Legal terms Latin and otherwise 0 Caveat Emptor Let the buyer beware 0 Stare Decisis Let the decision stand when judges follow precedents O Jurisdiction subject matter geography specific issues or parties Appellate Jurisdiction reviews application of the law usually does not seek new Subsequent punishmen sanctions for what has already been published Obiter Dicta a judge s remarks which are not necessary to reaching a decision but are made as comments illustrations or thoughts Dicta Judicial review any court state or federal has the right to declare any law or official government action invalid because it violates a constitutional provision Voire Dire To see to say the process in which potential jurors are questioned to Substantive law governs the merits of a case pertains to the fact of a case and the Procedural law legal rules governing the process how the law is made and administered the steps that are followed in enforcing the law Criminal law punishes criminal wrongs The government prosecution charges a Civil Law civil wrongs such as torts or breaches of contract A private party Summary judgmen avoids a jury trial after discovery Court rules that no facts Amici Curiae friends of the court people who have no specific legal stake in a lawsuit but are allowed to appear on behalf of one of the parties in a case First Amendment Tests and when they are applied Strict Scrutiny and O Brien Strict Scrutiny The standard of judicial review for contentbased statutes requiring the government to prove that it has compelling interest an interest of the highest order in regulating the speech at issue and that the means of serving that interest are narrowly tailored such that no more speech is restricted than is necessary to serve the Intermediilte Scrutjnv O Brien The standard of judicial review for contentneutral laws such as time place and manner regulations that requires the government to prove that the regulation is content neutral justified by substantial interest not a O evidence affirms or reverese trial courts verdict O O O 0 determine if they will be chosen to serve O Venire potential jurors for a trial jury pool 0 Venue place where trial will occur 0 fate of a case 0 O defendant with a crime 0 plaintiff files a lawsuit against a defendant 0 remain to be decided Judge makes decision 0 Seditious Libel criticizing the government 0 4 0 Attached Blackboard Handout 0 allegedly compelling interest 0 complete ban on communication and narrowly tailored 5 Symbolic Speech DoctrinePrior Restraint DoctrineDoctrine of Incorporation Conduct and expression types of conduct I No communicative value saggy pants such content may or may not be protected I Purely communicative conduct supreme court rarely allows government regulation of purely communicative conduct it has expressive content I A mix of communicative and noncommunicative elements may or may not be communication some situations it is the court decides if the conduct is expressive and whether it warrants First Amendment 0 Symbolic Speech Doctrine gt Svmbolic Speech Doctrine the twopart judicial test used to determine when conduct rises to the level of speech within the meaning of the First Amendment 0 Person must intend to convey a particularized message and 0 There must be a substantial likelihood members of the audience will understand the meaning that was intended 0 Prior Restraint Doctrine gt Prior restraint pre publication censorship that forbids publication or broadcast of certain objectionable material gt Prior restraint rules in book 0 Prior restraints on speech by the government are presumptively unconstitutional Burden falls on the government to prove in court that a prior restraint is justified O The government s burden is high with courts often requiring it to prove there is a compelling interest or an interest of the highest order justifying the restraint O The scope of any prior restraint how broadly the restraint is drafted and how much speech is restrained must be very narrow so as not to stop publication of any more speech than actually is necessary to effectively serve the government s allegedly compelling interests 0 Speech that falls outside the scope of First Amendment protection obscenity child pornography and false advertising for instance can be restrained by the government but only after a judicial proceeding in which a court has determined that the speech indeed is not protected 0 Doctrine of Incorporation gt The Free speech and free press clauses of the First Amendment have been incorporated through the 14th Amendment due process clause as fundamental liberties to apply to state and local government entities and officials not just to Congress 6 There will be questions from Justice Breyer s CSpan interview which is posted in the Supreme Court folder on our Blackboard site 7 Names years and importance of cases we have discussed in class 0 Espionage Act a law adopted by congress in 1917 that outlawed criticism of the US government and its participation in the European war 0 Alien and Sedition Acts of 1798 made it a crime to publish quotfalse scandalous and malicious writingquot that might cause contempt for the federal government it39s of cials or other official acts Truth was a defense Punished those opposed to federalists Thomasefferson said it was unconstitutional 0 Due Process 0 The government usually must give notice 0 Government bears the burden of proof to prove that speech is unprotected 0 Regulation of expression cannot be arbitrary 0 Rapid appeals must be allowed Sample Questions 1 If the government uses a prior restraint against a newspaper it is the responsibility of the newspaper to prove why the prior restraint is unlawful a True b False 2 Thomas Emerson articulated the theory that the First Amendment allows for stable change to occur in our society 3 Which clause in the Fourteenth amendment is used to make the Bill of Rights applicable to the states a Equal Protection b Prior Restraint c Due Process 1 Incorporation 4 Tuscaloosa has a noise ordinance that prohibits events at public parks after 10 pm A group of young Libertarians held a concert fundraiser that lasted until midnight The group was fined for violating the ordinance but they are protesting on the basis that it was political speech Are they protected Which test would the Supreme Court probably apply Why This is a study GUIDE The test is NOT limited to what is on this page but if you know and understand what is here have attended class and read the text you should do well on the test
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