MC 401 Test #1
MC 401 Test #1 MC 401-320
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This 14 page Study Guide was uploaded by Carolina Chaves on Thursday September 22, 2016. The Study Guide belongs to MC 401-320 at University of Alabama - Tuscaloosa taught by Dr. Diane Bragg in Fall 2016. Since its upload, it has received 78 views. For similar materials see Mass Communication and Law Regulation in Journalism and Mass Communications at University of Alabama - Tuscaloosa.
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Date Created: 09/22/16
Media Law Test #1 Study Guide st KNOW THE 1 AMENDMENT!!! Here it is: 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. Chapter 1: I . Common Law: What is it? It is the inductive system in which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts. Also known as judgemade law. **Fundamental to common law is the concept that judges should look to the PAST and follow precedents. Stare Decisisthe key phrase that means “let the decision stand”. A judge should resolve current problems in the same manner as similar problems were resolved in past cases. “Caveat Emptor”= Let the buyer beware Problems with judgemade law: 1) Lack of accountability 2) Inconsistencies in rulings Decisions based on precedents” 1) Aided in uniformly applied law 2) Assumed the correctness of precedent What are the four Judicial Precedent options?? 1) Accept/follow the precedent 2) Modify/update a precedent to fit new facts 3) Distinguish the precedent 4) Overrule a precedent **Overruling or ignoring a precedent can lead to an opinion being overturned by a higher court** II. Equity Law: Ecclesiastical Courts An action is fair and just (ex. Divorce or bankruptcy) 1) Discretionary 2) Not bound by precedent 3) Not always monetary Common law was developed as an alternative to Equity Law III. Statutory Law: Specific and precise Bills are enacted and become statutes (ex. Federal Law U.S. code) U.S. criminal laws are all statutory laws IV. Administrative Laws: Regulates federal and state government agencies 1) Passes laws and regulations 2) Interprets those laws and regulations 3) Enforces compliance Ex. Federal Communication Commission (FCC) Food and Drug Administration (FDA) Federal Election Commission (FEC) V. Executive Actions or Orders: Executive government offices make laws with executive orders or proclamations Based on existing statutory powers No action by congress or state legislature required 1) Homeland security department 2) Judicial Appointment Executive Restraints: Power limited by the Constitution or charter that established the office Can be overturned by the legislature or a court if the executive has exceeded his/her power. VI. Constitutional Law: The Supremacy Clause* This constitution and the laws of the land= Judge in every state shall be bound by the law of the land!! **This clause establishes that the federal constitution and federal law, generally take precedence over state laws and even state constitutions** Constitutional Law: Highest AuthorityFederal & State Two main views of the Constitution: ORIGINALIST vs. INTERPRETIVE(NONORIGINALIST) Originalist= Interprets the Constitution as it was written, word for word Interpretive/NonOriginalist= Have to adapt according to changes in time VII. International Law: Formal and informal treaties and agreements Such law is paramount when international rights and duties are involved. Ex: United Nations and NAFTA *Be aware of applicable laws and customs* The Supreme Court The Majority of their decisions are majority/unanimous Who is Chief Justice?? John Roberts Who is an Originalist Justice member? Clarence Thomas Who is a NonOriginalist Justice member? Ruth Bader Ginsburg (she’s the oldest on the court) Jurisdiction: Subject matter; geography, specific issues/parties American Courts: Trial or original jurisdiction: examine facts and apply law Appellate Jurisdiction: Reviews application of the law Usually does not seek new evidence Affirms or reverses trial court verdicts U.S. District Courts: Federal Courts of original jurisdiction (trial) ; 14 in each state (population) U.S. Court of Appeals: Federal Courts of last resort; Thirteen Circuits (11 plus D.C. and Federal) **Alabama= 11 Circuit Which circuits of the U.S. Court of Appeals are most important to communication law? Second Circuit (NYC): large media cases (number) D.C. Circuit: Appeals by FCC & FTC Ninth Circuit (West Coast) FOIA cases: deals w/ movie law suits and problems **The Supreme Court’s primary task is to act as an appellate tribunal for cases already decided in lower federal and state courts…courts of last resort. Supreme Court Term: One year beginning on the 1 Mon. in October Writ of Certiorari: A Supreme Court writ agreeing to hear a petitioner’s case Rule of Four: at least four justices think a case has merit to receive a writ Direct Appeal: These are usually rejected Opinion of the Court: Majority Opiniona justice voting with the majority writes the opinion. Chief Justice or senior member in majority decides who writes an opinion. Plurality (controlling) Opinion: No majority opinion No rationale or opinion has 5 votes (423) Concurring Opinion: A justice does not completely agree with the court’s rationale/opinion Dissenting Opinion: Justice disagree with the majority Later litigants can use to change opinion Ex. Justice Hugo Black’s 1942 dissent state court defendants have same right to counsel as federal defendantsbecame majority view in 1963. Per Curiam: unsigned “by the court” Memorandum Order: The court announces the vote without giving an opinionusually cases of little legal importance. Obiter Dicta: A judge’s remarks which are not necessary to reaching a decision, but are made as comm., illustrations or thoughts. Judicial Review Any court, state or federal, has the right to declare any law or official gov. action invalid because it violates a constitutional provision. Voir Dire: “To see, To say” the process in which potential jurors are questioned to determine if they will be chosen to serve. Venire: Potential jurors for a trial will occur Venue: Place where a trail will occur Categories of Law Substantive Law: Governs case merits of a case; pertains to facts & fate of a case What constitutes manslaughter Definitions of degree of murder Procedural Law: Legal rules governing process; how law is made, administered and enforced. Right to a speedy trial Steps on how a procedure be held Criminal Law: Punishes criminal wrongs. The government (prosecution) charges a defendant with a crime. Civil Law: Civil wrongs such as torts or breaches of contract; A private party (plaintiff) files a lawsuit against a defendant. Summary Judgment: Avoid a jury trialafter “discovery” Court rules that no facts remain to be decided Judge makes decision U.S. Supreme Court: Stephen Breyer (Justice) What he does/role he plays Talks about cases/beliefs How the Constitution impacts our country/people Chapter 2: The First Amendment: **William Blackstone (English Jurist) Commentaries on the Laws of England (1769) He opposed prior restraint but believed writers were accountable for their words. Prior Restraint The government stops publication or prevents distribution of a printed product. Subsequent Punishment Sanctions for products that have already been published. **Peter Zenger: New York Weekly Journal Critical of New York Governor William Crosby Zenger arrested for seditious libel in 1732 **Andrew Hamilton: Argued against punishment for publishing the truthZenger was aquitted ( Jury Nullification) In 1791, the adoption of the 1 Amendment began to offer protection for speech/press. The Constitution (1788): Ratified only with promises of bill of rights Absolutism (Theory): Justice Hugo Black: FDR put him on the court (Supreme Court) He wrote: “no law…abridging the freedom of speech” meant “…no law abridging.” Justice Black also believed “speech” meant “speech”, and also conduct did not implicate the First Amendment. Balancing Theories: Ad Hoc ex. Expression vs. military secrecy Case by case decisions Rare used not uniform Can create a “Chilling Effect” (fear of doing wrong thing) Preferred Position Balancing Theory Presumes government speech and press limits are unconstitutional Places the burden of proof on the gov. (as in prior restraints) Meiklejohnian Theory Self Governance Free expression related to selfgoverning is absolutely protected **Distinguishes public or political speech from private speech Voting= Most important political speech Theorists John Milton, Paradise Lost (16081674): “Whoever knew truth put the worst in a free and open encounter?” Allows the discovery of truth… Justice Oliver Wendell Holmes (18411935): “….the best test of truth is for it to be accepted in the competition of the market.” Abrams v. U.S. Checking Value Theory Vincent Blasi “The checking value in First Amend. Theory” 1977 “Watchdog Function” The press “checks” the power of the government **Government abuse is worst abuse; more than private power** Stable Change Theory Thomas Emerson The system of Freedom of Expression (1970) Free expression can act as a safety valvesuppression of speech may cause violence **Reform or Revolution** Individual or SelfFulfillment Theory John Locke (16321704) Two Treaties of civil government people have “natural rights” Suppression of speech suppresses an element of humanity **Government should foster free speech** Access Theory: “Freedom of the press belongs to the man who owns one,” AJ Liebling Access Theory rejected by the Supreme Court in Miami Herald v. Tornillo (1974) Government cannot force a newspaper to publish a citizen’s views or ideas Fairness Doctrine for broadcast ended (1987, 2011) **Theory does not equal Interpretation** Interpretation (Original Intent) Originalism Key Words: “Original Understanding” “Framers” “Founding Fathers” Ex. Justice Scalia NonOriginalist (Interpretive): The Constitution should be interpreted in light of societal changes. Ex.Justices Ruth Bader Ginsberg, Justice Stephen Breyer **Does NOT simply mean interpreting each case on its own or based on opinion… Originalism & NonOriginalism = Interpretation Chapter 3: Conduct and Speech Types of Conduct: 1. No Communicative Value 2. Purely Communicative Conduct The Supreme Court rarely allows govern. Regulation of purely comm. Conduct (has expressive conduct) 3. A mix of comm. And noncomm. Elements The Court decides if the conduct is expressive and whether it warrants 1 Amend. Protection Ex.Honking your horn Is the Conduct Expressive? The Symbolic Speech Doctrine helps determine if conduct is expressive… Is there the intent to express a message? Is there a substantial likelihood a witness will understand the message? Texas v. Johnson (1989) Johnson intended to express a message Spectators understood he was protesting some action, yet deemed obscene Conduct deemed obscene or in violation of safety laws may not be protected. If the conduct is ruled expressive, the court moves to the second question… st Is the expressive conduct protected by the 1 Amendment? Conduct like this= not acceptable Then the Court asks: Does a government regulation directly suppress free expression? If the answer is: Yes Strict Scrutiny Test (regulation of content) Strict Scrutiny Test (Regulation directly suppresses speechcontent based) No compelling interest to stop flag burning in Texas v. Johnson There is minimal restriction of free expression It is not vague or overboard “Crush Videos” United States v. Alvarez (2012) 63 The Stolen Valor Act outlawed lying about military honors. Alvarez lied about being a medal of honor recipient. Problem? The court said the law was written so broadly it infringed on free speech. How can it be improved? Some of the justices suggested the law could be rewritten to focus only on those who lie about military awards in order to gain benefit. Does a government regulation directly suppress free expression? If the answer is: No: Intermediate Scrutiny (content neutraloften deals w/ conduct) Intermediate Scrutiny or the O’Brien Test United States v. O’Brien (1968) O’Brien expressed a message. People understood it—but the draft card law was content neutral…its purpose was to protect Vietnam War. Intermediate Scrutiny 1) Regulation must be content neutral 2) Regulation is not a complete ban 3) Regulation is supported by a substantial govern. Interest 4) Regulation is narrowly drawn/tailored (does not exceed purpose) Time, Place & Manner Restrictions: Black College students denied service at “white only” lunch counters. Civil Rights protests prompted many of these restrictions **All messages must be treated the same way (permits, etc. )** Traditional Public Forums: Peaceful Picketing: Picketing restrictions must be content neutral Picketing usually cannot be banned from public property Public Property that is NOT a Public Forum: Signs on a phone line pole Mailbox Chapter 4: Defamation, or Libel, is what lawyers call a tort, or a civil wrong. Libel: is the publication or broadcast of any statement that… Injures someone’s reputation or Lowers that person’s esteem in the community Damage Claims: IT is not uncommon for libel plaintiffs to exaggerate the harm caused by the publication or broadcast of a negative story, seeking enormous sums of money to repair the damage. The mass media win most libel suits brought against them, or manage to settle the lawsuits for far less money. Time and Money: All lawsuits take time to resolve. Defending a libel suit is far more complicated than writing a will or seeking damages for an automobile accident. Time and the Law: The likelihood of defamatory material being published or broadcast today is extraordinarily high, given the volume of words and pictures transmitted in the media. Resolving the Problem? Proposals that states provide some kind of arbitration system to resolve issues of libel have also been advanced, but most have been met with little enthusiasm. Law of Defamation: An attempt by government to establish a forum for persons involved in a dispute brought about by an insult or by what we today call a defamatory remark. Elements of Libel: Defamation is any communication that holds a person up to contempt, hatred, ridicule or scorn. 1) Defamation is a communication that damages the reputation of a person, but not necessarily the individual’s character. 2) To be actionable defamation, the words must actually damage a reputation. There must be proof offered that the individual’s reputation was harmed. 3) At least a significant minority of the community must believe that the plaintiff’s reputation has been damaged, but the minority must not be as unrepresentative minority. Survival Statutes: For relatives to continue to pursue the lawsuit of the family member. Publication: Means that one person, in addition to the source of the libel and the person who is defamed, sees or hears the defamatory material. Scienter: “guilty knowledge” Identification: The injured party must show the court that the allegedly defamatory statement is “of and concerning him, her, or it.” Trade Libel: Product disparagement, focuses on the product itself. A libel of a business tends to focus on the alleged failing of the people who operate the business. Chapter 5: More Libel What is Actual Malice? a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not encompass mere neglect in following professional standards of fact checking. It is require for: Public official and public figures New York Times v. Sullivan (1964), 90 Case Description: Montgomery commissioner of public affairs, L.B. Sullivan, sued the New York Times for running the ad. He said the ad libeled him and won a $500,000 judgment, which was upheld by the Alabama Supreme Court. Issue: Can a public official win a libel action based solely on a “test of truth” Holding: NO! A public official conduct, if the official can prove actual malice. Opinion: Justice William Brennan: fear of libel prosecution would have a chilling effect on speech and would be “…comparable to ‘selfcensorship’.” ***This was an ad not a story! Important to know! Gave some protection for Advertising
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