MC 401 TEST 3 STUDY GUIDE
Definitions to know:
1. Sixth Amendment: gives right to every individual for a “speedy and
public trial by an impartial jury”
2. Sheppard techniques: suggestions from the Supreme Court to trial courts for how to deal with famous cases in order to get an impartial
trial; not required to do any
3. Gag order: another term for prior restraint
4. Positive liberty: government has to provide assistance to you to help
carry out your right
5. Negative liberty: government solely must Sleave you alone and you
have the right; example of this if First Amendment
6. Post-publication punishment: different from prior restraint in that
speech can be disseminated, then the government punishes speaker 7. Civil contempt: coercive and designed to motivate cooperation;
effective in trying to get media to reveal sources
8. Criminal contempt: punishment for showing disrespect for the court;
9. Collateral bar rule: affects how you approach unconstitutional orders; always follow judicial orders even if you may think its
unconstitutional and then appeal it
10. Branzburg test: first route to get protection through the We also discuss several other topics like When situational influences occur?
constitution that does not apply to any grand jury scenarios 11. Shield law: second route to get protection that is added by the
state to the constitution; protections are extremely inclusive but only 3
businesses are protected
12. Promissory estoppel: courts will protect the individual that was burned even if there are no written documents; journalists can be sued for this and are not protected by First Amendment
Cases to know:
1. Sheppard v. Maxwell
2. Cox v. Cohn
Chapters 11 & 12
∙ Sheppard v Maxwell Alternatives (Pros and Cons) - Facts of the case: 1966; Sheppard is believed by many to have murdered his wife although he says an intruder knocked him out and killed her.
- Landmark case: U.S. Supreme Court lays out a framework for how to get someone a fair trial to uphold their Sixth Amendment right that has experienced prejudicial publicity Don't forget about the age old question of What is ‘water smart’ products and why is it said to be beneficial?
Don't forget about the age old question of What is an example of static equilibrium?
- This lead to the Sheppard Techniques
a. Change of venue: move the trial somewhere where the public hasn’t been exposed to all the publicity; other cities won’t know about it or not be as emotional about it (if it has gained national attention)
b. Change of venire: changes the jury pool; bring new people into the city c. Continuance: post-pone the trial until the media calms down; however must consider that it may rev back up when the trial is about to begin; witnesses die, move away, forget the incident, etc.
d. Severance: give defendants separate trials if the case has a villain and associate type of set up so the associate doesn’t get as much backlash e. Careful voir dire: voir dire = jury selection; weed out prejudices and eliminate biased jurors
f. Sequestration: seclude a jury so they don’t see any media bout the trial; however, only protecting them from media during the trail and they may have seen news coverage before called in for jury duty
g. Judicial Admonition: jury is instructed not to discuss the case with anyone
h. New trial: last resort; can be very traumatic so getting to this point should be avoided if at all possible Don't forget about the age old question of How do you calculate the weighted average cost of capital?
∙ Remember the Sheppard Techniques
C = 4 C, 2 S, J & N
∙ Prior Restraint in Criminal Context
- Can a prior restraint be put on information and disallowed for the media to report it in order to give someone a fair trial?
- Nebraska Press test: ALL 3 things must be proven in order to have a prior restraint that is constitutional Don't forget about the age old question of How would you describe the habitat of cliff swallows?
a. News coverage must impair defendant’s right to a fair trial under the 6th Amendment
b. No alternative measure would be adequate short of a prior restraint; speech must be restrained in order to give defendant a fair trial c. Prior restraint must actually work/succeed If you want to learn more check out What comprises an economic thinking?
- Many cases will fail this test
- Gag order that is constitutional: Discourage jurors to talk about the case or seek information on it; however, it’s often unconstitutional to tell media that they can’t report something once they have knowledge of it
∙ Post-Publication Sanctions
- Different from prior restraint in that speech can be disseminated, THEN government punishes speaker
- Landmark case: Cox v. Cohn – sexual assault victim name revealed against their wishes and press gets sued because of publication of private facts
- Other cases: Landmark Communications v VA; Smith v Daily Mail - Take away from these cases: First Amendment can trump privacy interest of victim; if media gets information they want to publish, not allowing them to do so is a violation of First Amendment
∙ Right of Access to Courts
- Issue brought on by Richmond Newspapers vs. Virginia - Positive liberty vs. negative liberty: see above definition
- Richmond Justifications: in favor of open trials
1. Historical justification: criminal trials have been open since Anglo American law since 1066; trials were open when they drafted the First Amendment
2. Function justification
a. Perceived fairness: public needs to think the trial was open and fair and that nothing was hid from them
b. Actual fairness: if a judge and jurors are being watched, they will naturally do a better job; having the extra pressure makes the trail fairer
- Must have an extremely compelling reason to close a trial (example is a child that is testifying because he/she was sexually assaulted)
- Post-Richmond Newspapers
a. Press-Enterprise I 91984): right of access also applies to jury selection
b. Press-Enterprise II (1986): right of access also applies to preliminary hearings; this is important because many trails send here in settlement and plea
∙ Cameras in Court
- Where are cameras allowed in court?
A. State courts = YES
B. Federal courts = NO (includes trial, and supreme, but sometimes appeal courts will allow cameras)
o First Amendment Protection of Confidential Sources - The First Amendment provides limited protection for confidential sources
- The source is Branzburg v Hayes (1972)
- Branzburg Test: protection through the constitution
- This test never applies to grand juries; the journalist always loses there - Must have ALL 3 in order to force the reporter to burn his/her source: a. Reporter must have clearly relevant evidence
b. Information can’t be obtained another way; can only come from reporter
c. Must be a compelling interest in the information
- Branzburg being applied
- How likely to least likely are journalists to win each case and why? 1. Civil case with a confidential course: Most likely to win because money is the only thing on the line as opposed to someone’s freedom or life
2. Criminal case with confidential source: More likely because can usually obtain facts through evidence and science so the reporter may not have to burn the source
3. Journalist as eyewitness in civil case: Less likely; may have to testify/share information
4. Journalist as eyewitness in criminal case: Least likely/ will have to testify/ share information
o Shield Laws
- Second route to getting protection after the constitution - In this instance, the state can provide more protection because they added this shield law on top of the constitution (constitution is the floor not the ceiling)
- Alabama Shield Law: protects you before a grand jury which is rare and is very inclusive in protection however it only protects newspaper, radio, and TV.
- Issues with the Shield Law:
a. How much media is protected? Some covered, some not, especially in Alabama
b. What proceedings are covered? Alabama covers all proceedings but many exclude grand jury so you aren’t protected then
c. Does it only protect the name of the source? Some only protect the name but you may be forced to talk about other things besides the name
d. Publication requirement? Until the thing is out there, you have no protection
- Shield Law vs. Constitution
Shield Law Constitution
Covers more situations (grand jury) covers less situations Can be taken away from the state Never going to be repealed Can be unconstitutional in some situations Can be taken more seriously
Earlier Material to Know
o First Amendment Theories
1. The First Amendment: “Congress shall make no law… abridging the freedom of speech, or of the press…”; text doesn’t get you very far because it’s vague
2. Originalism: What did the people that wrote the constitution intend? - Must put yourself in their mindset at the time
- Critiques of this theory:
a. Anachronism - people that wrote the constitution wanted us to expand on it to fit our own time; they did not intend for originalism to be created
b. Differing understanding – there were a variety of ideas back then and many people didn’t agree with each other; no way for us to specify what they meant
c. Translation problem – writers of the constitution couldn’t have imaged what our society would be like today; we improvise to adapt to new challenges those in the 1700s didn’t face
d. Blackstone problem – specific to the First Amendment; our understanding of free speech is much different today; almost impossible to relate it to today
3. Self-government: Created my Meiklejohn
- Believed the purpose of free speech is to promote an effective demoncracy
- The people are the rules and rulers in a democracy so they need good information to make decisions
- All view points must be exposed to the people in order to see all sides of a matter so the people can be well-informed and make educated decisions
- Critiques of this theory:
a. Focuses heavily on political speech and doesn’t include all other forms of free speech
4. Individual Autonomy:
- Free speech is about self-expression and achieving self-realization - Critique of this theory:
a. Where do you draw the line of what is allowed? What if someone wants to express themselves by forming a racist group that harms others?
5. Marketplace of Ideas: diversity theory
- Free speech helps us arrive at the truth
6. Checking Value Theory: Created by Vincent Blasi
- Believes main purpose of the First Amendment is to prevent governmental misconduct
o How is a First Amendment Case Decided?
Step #1: Is government action involved
- Is the government trying to stop you from speaking?
- Free speech only applies to government action, not private entity action
IF YES: Continue to Step #2
IF NO: First Amendment doesn’t apply
Step #2: Is the government action impeding activity that is predominantly expressive?
- Predominantly expressive: is your communication more speech than action
IF YES: Continue to Step #3
IF NO: First Amendment doesn’t apply
Step #3: Does the speech fall into an unprotected category? - Unprotected = obscenity, fighting words, true threat, national security, copyright speech and perjury
- If your speech falls into any of these categories, then the First Amendment doesn’t apply because of it’s unprotected label IF YES: Apply the rational scrutiny test or minimum scrutiny: the government will win unless it has no legit interest in regulating or its law is irrational or arbitrary
IF NO: Continue to Step #4
Step #4: Does the speech fall into moderately protected category or is the law a content-neutral time, place or manner regulation?
- Content-neutral: The government isn’t trying to regulate the actual message just where, when or how
IF YES: Apply intermediate scrutiny – the law if valid and the government wins if the law regulates the right amount of speech and the government has a “good not great” interest in regulating the speech
IF NO: Continue to Step #5
Step #5: Fully Protected speech
- This is religious, political, cultural, etc.
- If a speaker gets to this step of the process, they usually win - Government must have a fantastic reason as to why the speech shouldn’t be protected
IF YES: Apply strict scrutiny – the law is valid and the government wins if the right amount of speech is regulated and the government has an extremely compelling reason of interest or to advance a state interest
- Libel explained: Written form of slander – more serious because it exists over time and can reach a lot of people in its permanent form; broadcasting in considered libel because although it’s technically spoken, it reaches a lot of audiences through air waves and all audiences listening/watching
- Danger areas:
a. Extreme political beliefs
b. Mental illness
c. Professional ethics/competence
d. Loathsome disease
f. *Accusing someone of a crime
- What does the plaintiff have to prove?
- Defenses against Libel
b. State of Limitations
c. Sec. 315 of Communications Act
f. Rhetorical hyperbole
h. Pure opinion
o New York Times v Sullivan
- Landmark case that established the actual malice standard - Actual malice requires that the plaintiff (if a public official or public figure) must prove that the person who made the statement knew the falsity of it and published it anyway or had reckless disregard for the truth and failed to check if it was true or not.
- Because of his, many public officials and public figures have a hard time proving actual malice and winning defamation cases