Comm Law chapter 1
Comm Law chapter 1 Jour 371
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This 13 page Class Notes was uploaded by Samantha Shiff on Monday February 22, 2016. The Class Notes belongs to Jour 371 at University of Mississippi taught by Charles Mitchell in Spring 2016. Since its upload, it has received 33 views. For similar materials see Communications Law in Journalism and Mass Communications at University of Mississippi.
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Date Created: 02/22/16
JOUR 371: Communications Law Meek School of Journalism and New Media The University of Mississippi Spring 2016 Assistant Dean Charlie Mitchell 113 Farley Hall firstname.lastname@example.org Course Description/Points to Remember 1. This course is topical. We cover an array of topics as outlined in a weekly schedule. Think of each topic as a compartment. 2. The purpose of the course is to help you become aware of legal issues encountered in media professions so you will recognize legal considerations as they arise. The goal is not to make you specialists in media law. In other words, this is not a law school class. 3. It is foundational to the course, however, for you to understand some basics of legal terminology and legal concepts. These are called “terms of art.” For example, one word you will hear a lot is “element.” The law puts a lot of stock in the meaning and value of words. Almost every word in a statute constitutes an “element.” The law also uses “tests” a lot. Here’s how it works. Say a statute defines “theft” as carrying away the personal property of another with the intent to deprive the owner. Say that during class, the person sitting next to you reads a text 1 Mitchell 371 Chapter 1 and then, thinking he is sliding his phone into his backpack, mistakenly slides it into your backpack. You leave with his phone. The precise legal analysis goes like this: The elements of “theft” come right from the words of the law: “carrying away” – you did “personal property” – which a phone is “of another” – not yours “with intent to deprive the owner” – you had no such intent. For the statute to have been violated, each element must be present. We only have three of the four, so there has been no “theft” in the legal sense of the term. When presented a set of facts (hypothetical), the legal process is to test each fact against a definition. Normally, all elements must be present and provable. Become familiar with the term “element” and how it is used. Become familiar with “tests” because they crop up in various forms time and again in legal analysis. 4. One added benefit or “off the menu special” of this required course for media practitioners can also be seen here. An excellent journalist will have a mind trained to be precise, to respect words and their meanings and be more analytical in sizing up situations, interpreting the meaning or significance of facts. A lot of people you encounter have not practiced or developed precision in their thinking. They have squishy brains. So part of the reason you take a law course is that it should help “unsquishy” your brain. This doesn’t mean you will be more caustic, less social or less friendly. Just as diet and exercise are directly related to your physical fitness, training your brain to be more analytical and to serve you better requires drills and practice. 2 Mitchell 371 – Chapter 1 5. Another added benefit or “off the menu special” is that if the future finds you covering courts or legal matters you will have a beginning framework for understanding court systems, terms and processes. CHAPTER ONE: I. Orientation to Legal Systems A. The nature of law 1. Not determinative of right or wrong/(that’s ethics) 2. It is the playbook by which members of a society agree to abide a. For criminal acts, there is punishment including fines/loss of liberty, property. b. For civil violations, there are damages, fines and other sanctions less than loss of liberty. B. The sources of law 1. Common law a. Largely unwritten/developed over time b. Follows precedent/stare decisis injects predictability c. But evolves, adapts to societal changes, expectations. TEXT POINTS: Common law is also called discovered law. After a conflict arises, the solution (decision) is written down, records are kept. When similar conflicts arise in the future, previous decisions — What did we do last time? — are influential in deciding what to do with the present case. This is referenced as stare decisis. Courts can accept, modify or overrule prior opinions due to variations in the factual situations or because social attitudes and viewpoints change over time. For example, smoking pot was perfectly legal 200 years ago and is increasingly becoming legal again. Text uses Bowers v. Hardwick and Lawrence v. Texas, which is unusual because they were statutory cases, but the point is the same. At one time, engaging in homosexual relations was criminal. Today, same- gender marriage is a protected right. 3 Mitchell 371 Chapter 1 2. Statutory/Black Letter law a. Written/prescriptive (informs us in advance). b. It’s where we find the “thou shalls” and “thou shall nots.” c. Statutory law tells us how it’s going to be — the Voting Rights Act, the Clean Water Act, Obamacare. d. Words on paper are subject to interpretation, so applying statutes or construing them is often up to courts. This involves many common law practices including precedent and stare decisis. Law vs. Equity: In some contexts, it’s the duty of the courts to strictly apply law. Criminal cases fall in this category as do lawsuits seeking money damages. In other contexts, the role of the court is to “do right” (resolve the problem) between parties who are unable to agree. Divorce, will contests, adoptions, custody, property line disputes are examples of equity cases. In both law and equity matters, a mix of black letter and common law may be applied. 3. Private law. a. Involves oral or written contracts. b. Often “governed” by black-letter law, but. c. In the absence of illegality such as contracts involving adhesion, fraud or illegal purpose, individuals are free to make whatever law they wish as between themselves. Generally, private law is enforceable in courts. EXAMPLES: Jill goes to work for WKKL TV and signs a non- compete contract. It specifies that she may not work for another television station in the same market for two years after leaving WKKL. This is private law. Jill goes to work for WKKL TV and signs a non-compete contract. It specifies that for the duration of her lifetime she will never work for any other television company anywhere. 4 Mitchell 371 – Chapter 1 This is private law, but unreasonable non-competes are not enforceable. Bob rents an apartment and his lease specifies that he will cut the grass and maintain the landscaping as payment of his rent. This is private law. Jill and Bob sign a document in which Jill agrees to provide a monthly supply of heroin to Bob for $500. This is private law, but is unenforceable because the subject of the contract is illegal. C. The Hierarchy of Law 1. Governance in America follows a concentric and overlapping model of authority, not a linear, top-down model. 1. Each circle of government (political subdivision – nation, state, county, city) has defined areas of responsibility. 2. There are areas of overlap, even conflict. • Oxford can decide where to build a park without permission from Lafayette County or the state or federal government. • Oxford can’t create an Air Force and invade Cuba. • Mississippi can create a system to offer early public education. • Mississippi can’t impose a tax on Tennessee. • Congress can declare war. • Congress can’t tell Oxford where to build a park. 3. All law must be in compliance with provisions of the basic law of the jurisdiction. • Cities must act within the defined powers of their charters, the state constitution and the U.S. Constitution. 5 Mitchell 371 Chapter 1 • States must act within the defined powers of their state constitutions and the U.S. Constitution. • The federal government must act within the confines of the U.S. Constitution. SALIENT POINT: The basic laws of each jurisdiction must also be in compliance with the next tier of basic law. Said another way, nothing in a city charter can be in conflict with a state’s constitution; nothing in a state’s constitution may be in conflict with the U.S. Constitution. SALIENT POINTS: The rationale for this system was that government at every level should do the least governing necessary and that the officials closest to a situation knew best how to deal with it. This has been eroded greatly. The key motivator of change has been funding. Authority goes with the money. There is nothing in federal law that requires a legal age for drinking, much less a uniform national age. But Congress provides highway funds, so Congress may stipulate that the funds be awarded to states where the legal age for alcohol is 21. 2. Constitutions are the basic law of the land. There is one federal constitution and each state has a constitution. It is helpful to think of them as a framework, outline, skeleton – whatever image works for you. Supreme Law of the land from which all other laws flow. a. No federal or state law or constitutional provision may contravene the U.S. Constitution. b. A state law or constitution, however, may be broader, more permissive to the individual or more restrictive of government. SALIENT POINTS: Constitutional provisions, including all amendments, provide the words against which all other law is tested. For instance, the U.S. Constitution says there can be no ex post facto laws, which means “after the fact.” That means any law passed by Congress, any state or local government or any other authority can’t be retroactive in effect. For example, if you file you income tax return on April 15 on blue paper, Congress can’t punish you under a law passed later that says all tax returns should have been be filed on pink paper. Said 6 Mitchell 371 – Chapter 1 another way, an act that is legal when it is performed cannot be punished later if the law is changed. TEXT POINTS: Constitutions are necessarily hard to change and/or modify. At the federal level, changes require super- majority votes in the House and Senate plus ratification by the states. In Mississippi, a majority vote of the public is required to add or delete constitutional provisions. c. In addition to not contravening any specific constitutional provisions, the U.S. Constitution also requires that no law can be enforced if it is vague or overbroad. • Vague means the wording of the law is not specific enough for a person of reasonable and ordinary intelligence to know what it means. • Overbroad means the wording of the law takes in more than necessary to achieve its purpose. • A statute can be both vague and overbroad. SALIENT POINTS: The text uses the ages-old struggle to regulate pornography and/or obscenity as an area in which vagueness has been a problem. There are plenty of other areas. Does a law that prohibits the selling of “alcohol” on Sundays include rubbing alcohol? Nyquil? This explains why laws often seem wordy (alcohol beverages) and how loopholes are created. It also feeds a journalist’s craving for the precise use of words. What does “selling” mean. Does it include redeeming a coupon, using a gift certificate? Laws have to mean what they say and say what they mean. As for overbroadness, the text uses the example of door-to- door sales. The goal of an ordinance was to prevent unwanted solicitation. Since the law prohibited all solicitation, it was overbroad. Similarly, say there was a rule that prohibited dances on campus, except on weekends. The purpose would be to encourage study, but what if the Bolshoi Ballet scheduled at Tuesday night performance at the Ford Center? Clearly, the intent of the law was not to prohibit performances, so the rule should have said “student dances.” 7 Mitchell 371 Chapter 1 3. Statutes (called ordinances in towns) are next in the hierarchy. a. These are black-letter laws duly passed by officially elected bodies such as state legislatures, boards of supervisors, town councils in whatever form. b. These are collected and indexed in codes and, again, may only address matters within the powers granted by the next-higher layer of authority. 4. Rules, regulations and executive orders come next. a. The federal government and state governments create agencies with certain specializations. The agencies, sometimes called boards or commissions, have defined areas of responsibility. Mississippi has an Ethics Commission, a Medicaid Commission, a Workers Compensation Commission and many others, including an Insurance Commission and a Department of Environmental Quality. The federal government has dozens more, with the Federal Trade Commission and the Federal Communications Commission having the most frequent authority when it comes to media practitioners. b. They get their power to make rules — called promulgating — from statutes. Congress and the Legislature realize when passing enactments that achieving the results desired by the act will require more details than they have included in the statutes, so they grant administrative agencies the power to promulgate “such rules as may be necessary to carry out the ends or purposes defined in this act.” 5. Executive orders are essentially edicts. They are pronouncements by a president or a governor or in some situations a mayor. Usually the executive claims legislative permission to act in an area without consulting a representative body. A one time these 8 Mitchell 371 – Chapter 1 were very rare. Bush issued a lot and Obama is issuing even more. They are, of course, very dangerous to the interests of a democracy. √ http://www.archives.gov/federal-register/executive- orders/disposition.html D. Federal Courts hear cases involving federal law or matters crossing state lines. 1. The Constitution says the judicial power of the United States shall be vested in a Supreme Court and such other courts as Congress shall ordain and establish. 2. The general system is: • The U.S. Supreme Court • Circuit Courts of Appeal • District Courts 3. District courts are the trial courts for federal criminal and civil actions. Mississippi has two District Courts, the Northern and the Southern, with several judges each. 4. Circuit Courts of Appeal are multistate. There are 11 circuits th plus the D.C. Circuit. (Chart p. 23) Mississippi is in the 5 Circuit with Louisiana and Texas. It is based in New Orleans, but can hold sessions where it wants — Jackson, Dallas, Houston. Circuit Courts usually hear appeals in three-judge panels. However, sometimes the court will sit en banc, which means all judges will participate. They issue rulings in the form of opinions. 5. The U.S. Supreme Court sits in Washington, D.C. There are nine justices who, under the rule of four, decide whether to hear cases based on reviewing a writ of certiorari. The Supreme Court also speaks through opinions. • Opinion of the Court (majority) • Concurring opinion (supporting the majority) • Dissenting opinion (doesn’t agree with majority) • Plurality opinion (the opinion with the most signatories) • Per curiam (unsigned) • Memorandum order (decision with no opinion) 9 Mitchell 371 Chapter 1 SALIENT POINT: Covering the courts is not as intricate as it might sound, especially in an age where dockets, decisions and orders are online. http://www.pacer.gov/ 6. There are many other federal courts, specialized courts for bankruptcy, military matters, customs, taxation issues. There are also U.S. Magistrate judges who work at the District Court level and, generally speaking, do not hear full cases. They process preliminary matters such as search warrants, evidentiary hearings, setting bond. 7. There are two classes of federal judges. Article III judges — supreme, circuit and district judges — are appointed for life by a president and confirmed by the U.S. Senate. Magistrates are appointed for defined terms, but must also have Senate confirmation. Impeachment is the only way a federal judge can be removed and it is extremely rare. Seven judges have been removed by impeachment in U.S. history. C. State and local court systems vary widely as a result of the federalist principles that were in place at the birth of the nation. Variations from state-to-state are large and small, but can be crucial, especially to a journalist because what a Court of Common Pleas does in one state may be the same thing a Circuit Court does in another. 1. Mississippi courts adhere closely to the model of British system. At the trial level, where most of the action takes place, Mississippi courts are divided into: a. Circuit Courts, also known as law courts, where felony criminal cases and most lawsuits seeking money damages are heard, and b. Chancery courts, which are akin to equity courts. Very rarely is there a jury in a chancery court and the judge, correctly called a chancellor, is to “do the right thing” in matters such as adoption and child custody, land disputes, divorce and overseeing the settlement of estates and will contests. Chancery courts also have certain assigned duties, such as municipal annexation cases. 2. Otherwise, the Mississippi court system is structured as: 1 0 Mitchell 371 – Chapter 1 http://courts.ms.gov/aboutcourts/aboutcourts.html a. The Supreme Court • Nine justices with three each from North, Central and South Mississippi • A wrinkle is that all circuit and chancery appeals a filed as a matter of right to the Mississippi Supreme Court, where the justices may choose to decide a case or send it to the: b. Mississippi Court of Appeals • Ten judges from five districts. • They can’t “make law” by modifying or overturning a Supreme Court decision, but they can rule on whether existing law was properly applied. • Supreme Court may review cases it sends to Appeals, but doesn’t have to. c. Circuit Courts • There are 22 districts and 53 judges covering 82 counties. • In addition to felony crimes and lawsuits for money damages, they hear appeals from lower courts and some agencies. d. Chancery Courts • There are 20 districts and 49 chancery judges (chancellors) covering 82 counties. • In addition to equity matters, they hold sanity hearings and challenges to the constitutionality of state laws. e. County Courts • These are population-driven. Larger counties have them; smaller counties do not. • They are super-sized justice courts and smaller- sized Circuit Courts. Can hear anything a justice court can and some things (suits up to $200,000) a circuit court does. f. Justice Courts • Every county has at least one and can have up to five, based on population. 1 Mitchell 371 Chapter 1 1 • These are Mississippi’s “Judge Judy” courts, also called small claims courts. • They hear civil cases up to $3,500, misdemeanor crimes and traffic offenses outside a municipality. Also set bonds, issue search warrants. g. Specialty courts • Drug courts are an innovation where a person facing a felony criminal indictment admits guilt and undergoes monitored rehabilitation. • Municipal courts hear misdemeanor crimes and traffic offenses inside a city’s municipal limits. Generally do not hear civil cases of any type. • Youth Courts. Again, they are population-driven. Hear matters regarding “noncriminal” abuse and neglect of minors and crimes (delinquent acts) by offenders under the age of 18. In counties without a Youth Court, the cases go to a Chancery Judge. Some counties combine the job description of a county judge with youth court judge. 3. All judges in Mississippi, with the exception of most municipal court judges, are elected in nonpartisan districted voting. a. Supreme and Appeals Court terms are eight years and all others are four. b. An active license to practice law is required for all judgeships except justice court and municipal judges. Training in jurisprudence is required for all judges at all levels. TEXT POINTS: The text contains some basic terms such as plaintiff and defendant and de novo plus appellee and respondent, plus some basic criminal and civil procedure rules. The flow of a case. Suffice it to say that you will need to be familiar with this if you are covering a legal proceeding, but it’s really not relevant to this course. SALIENT POINT: States have highly diverse, individual hierarchies and nomenclature for their courts. If you are researching or writing about a state court matter, there should 1 2 Mitchell 371 – Chapter 1 be an official website that explains court names and their roles in judicial processes. SALIENT POINT: States have highly diverse selection methods for judges. Many are trending toward appointing judges with removal by public ballot as an option. 1 Mitchell 371 Chapter 1 3
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