Exam 1 Flashcards
1
Q
Constitutional Law
A
Known as the “Supreme Law of the Land”, the U.S. Supreme Court has the last word on the meaning of the Constitution. Overrules all other state constitutions, protects you no matter what state you’re in.
2
Q
Statutory Law
A
A written law passed by a legislative body.
3
Q
“Stare decisis”
A
to stand by past decisions
4
Q
Times v. Barber
A
Outcome: you may not run a photo of someone’s likeness taken in a private area without consent.
5
Q
Federal District Courts
A
known as fact-finding courts, as they are tasked with finding the facts of a case.
5
Q
Federal Law
A
kicks in when you violate a federal statute, found in U.S. code books. You would then go to a federal district court.
6
Q
Federal Circuit of Appeals
A
known as a law-reviewing court. There must be a reason for an appeal:
- The law under which you’re convicted is unconstitutional.
- You have been denied your constitutional rights during the arrest or litigation process.
7
Q
State Law
A
kicks in when you violate a state statute.
8
Q
State Trial Court
A
a fact-finding court.
9
Q
State Court of Appeal
A
a law-reviewing court.
10
Q
Overbroad
A
In targeting an evil, the wrong might be so broad as to violate constitutional rights.
11
Q
Amicus Brief
A
Lawyers may file an appeal on the grounds that the defendant’s constitutional right is being violated. Often called “Friend of the Court briefs”.
12
Q
De novo
A
In the case of an appeals court, no new evidence is introduced. In the case of de novo, new evidence is heard in an appeals court. Only considered de novo in an appellate court. Otherwise, new evidence is heard in a brand new trial court.
13
Q
En Banc
A
“Body of the whole”.
14
Q
Writ of certiorari
A
A petition to appeal to a higher court.
15
Q
Moot
A
Not relevant, no need for a ruling.
16
Q
Remand
A
An appellate court amends something decided in a lower court.
17
Q
Majority Opinion
A
Winning opinion
18
Q
Concurring Opinion
A
Voting with the majority, but voting for different reasons.
19
Q
Dissenting Opinion
A
Voting against the majority
20
Q
Per Curiam
A
A court decision based on briefs from a lower court after a writ of certiorari, usually unsigned by the court.
21
Q
Memorandum
A
A record of court decisions.
22
Q
Shadow Docket
A
A ruling made during a period where the supreme court is on hiatus.
23
Q
U.S., L.Ed., S.Ct., M.L.Rptr.
A
U.S. Supreme Court Judicial Citations
24
F.2d (4th Cir. 1997)
Circuit Court of Appeals Judicial Citations
25
F.Supp. (E.D. Va. 1997)
Federal District Court Judicial Citations
26
VA
Virginia Supreme Court Judicial Citations
27
First Amendment
Individual rights protected against the U.S. government.
28
Fifth Amendment
Protection against prior restraint & national security and Grand Jury.
29
Sixth Amendment
Right to a speedy public trial.
30
Fourteenth Amendment
“Nor shall any State deprive any person of life, liberty, or property, without the due process of law;”
31
Prior Restraint
Judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. In US law, the First Amendment severely limits the ability of the government to do this.
32
William Blackstone
Argued against prior restraint.
33
John Peter Zenger (1733)
Thrown in jail for seditious libel.
34
Andrew Hamilton
Zenger’s attorney. Violating court decorum, he stands up and uses two defenses that end up winning the case: Juries should determine the truth of the publication, and truth is a defense.
35
Croswell’s Trial (1800s)
Croswell criticizes the government, and is convicted on the lower level. His case is brought to the appellate level, and he hires a new attorney: Alexander Hamilton.
36
John Milton’s “Areopagitica”
Prosecuted for publishing without a license.
A poem that essentially said, “we need to let truth wrestle with false statements.”
37
John Suart Mill's “On Liberty”
Truth has no chance if we silence communication.
Marketplace of ideas.
38
John Locke’s “Self-Righting Process”
Truth is borne from debate.
39
Constitutional Convention
A bloodless coup that threw out the Articles of Confederation.
Did not allow the press or a stenographer to look into the convention.
40
Madison v. Hamilton
Hamilton wanted a strong federal government.
Madison believed in states rights, that the states have a better understanding as to how to run their own region.
41
Alien and Sedition Act (1798)
Made seditious libel illegal.
This law was on the books until 1964.
42
Gitlow v. New York (1925)
Benjamin Gitlow was responsible for writing a document called “The Left-Wing Manifesto” and was subsequently arrested for preaching anarchy.
The Supreme Court upholds his conviction, even though there is no evidence Gitlow’s writing radicalized anyone.
The Supreme Court ruled that all citizens have rights guaranteed in the Constitution because of the due process clause in the 14th Amendment, even if this was a guilty conviction.
43
Absolutist Theory
More free speech
44
Hugo Black
Senator and hard-line Absolutist.
45
Professor Alexander Meiklejohn
said there was political speech and non-political speech, and that political speech must be protected at all costs. Non-political speech can be regulated.
46
Preferred Position Theory
We must give preference to the First Amendment
47
Kovacs v. Cooper (1949)
sets that precedent that in the case of competing rights, we must give preference to the First Amendment, even if Kovacs lost.
48
Chaplinsky v. N.H. (1942)
sets the precedent that there are protected words and not protected words, and invoking fighting words is not protected. Words that are meant to incite conflict are not protected. However, assault is assault, and you must prove a direct cause and effect between the words and the fight.
49
Two-tiered Theory
There are protected words and not protected words. Exempts obscenity and fighting words from protection.
50
Clear and Present Danger Theory
51
Schenck v. U.S. (1919)
Schenk argues that the military draft is unconstitutional and is charged with violating the Espionage Act, an act that states you may not interfere with the military. His conviction is upheld. His letters articulate a clear and present danger to the United States. Oliver Wendell Holmes wrote the opinion.
52
Abrams v. U.S. (1919)
Abrams convicted over a call for a munitions strike. Two justices dissent: Holmes and Brandeis. A majority of the court applies the clear and present danger decision. Holmes and Brandeis advocate for the marketplace of ideas, even in times of war and argue the Schenk decision is being misused.
53
Whitney v. California (1927)
Anita Whitney is arrested for being a member of the Communist Party, but especially because she’s a niece of a Court Justice. Guilt by association. Arrested for presenting a clear and present danger.
54
Brandenburg v. Ohio (1969)
Brandenburg as the head Dragon of the Ku Klux Klan calls a Klan meeting and invites the press. He declares that they’re going to storm Washington. Clear and present danger is reformatted from Whitney v. California so that it has to be imminent, lawless action likely to succeed.
55
Balancing Theory
56
Ad Hoc
Latin for “for this”; created or done for a particular purpose as necessary.
57
Definitional
In all cases that meet this definition.
58
Categorical
Large area
59
American Com. Asso v. Douds (1950)
60
Bad Tendency Theory
61
Gitlow v. NY (1925)
There is evidence that the speech can cause disruption on a historical basis that that kind of speech has been disruptive in the past.
62
Evil Tendency
63
Dennis v. U.S. (1951)
Eugene Dennis is convicted of being a Communist under the Smith Act, a federal piece of legislation passed in 1940 that bans fascist rhetoric. Fascism and Communism are now conflated as the same thing, and a precedent is set where any Communist may be convicted under the Smith Act.
64
Yates v. U.S. (1957)
Yates is arrested for being a Communist, but his conviction under the Smith Act is reversed. Ruled that Yates was only engaging in advocacy of abstract doctrine.
65
Advocacy of Action
If a speaker advocates for a specific action, it is not protected speech.
66
Advocacy of Abstract Doctrine
If a speaker advocates for abstract ideas but not specific actions to achieve them, it is protected speech.
67
Collateral Bar Rule
A party against whom an injunction is issued must obey that order until it is dissolved or reversed on appeal - the defendant can not claim in a contempt of court proceeding that the order he violated was invalid.
(Reporters have a choice - they may either violate the order and risk contempt convictions or comply with its terms and seek reversal on appeal.)
68
Near v. Minnesota (1931)
Facts: Jay Near published the Saturday Press. He claimed that the Jews were in charge of organized crime in the city. Near was declared a nuisance and an injunction was issued prohibiting future “scandalous matter.” Near was not allowed to publish anything until his case was completely sorted, and Near argued prior restraint.
Importance: First time the U.S.S.C. declared a state’s pre-publication statute as unconstitutional; thus, declaring most prior restraints as unconstitutional.
69
Grosjean v. American Press (1936)
Facts: Governor Huey Long convinced the Louisiana legislature to pass a license tax of 2% on the gross receipts of the state’s newspapers that had a circulation of more than 20,000 copies.
Importance: The USSC ruled a discriminatory state tax placed on newspapers of certain circulation size was a prior restraint and unconstitutional.
70
New York Times v. U.S. (1971)
The New York Times attempted to publish a series of stories based on a secret Pentagon study on the Vietnam War. This case became known as the “Pentagon Papers” case.
Importance: First time the US Government filed an injunction against a newspaper.
In a 6-3 decision, the USSC determined that the US Gov. had not met its burden of proof to prior restraint the press.
71
Minneapolis Star & Tribune v. Minn. Commissioner of Revenue (1983)
Facts: Minnesota decided to tax newspapers that used large amounts of ink and paper.
Importance: USSC determined that the tax was discriminatory against large papers and a prior restraint.
72
Arkansas Writer’s Project, Inc. v. Ragland (1987)
Facts: Arkansas imposed a sales tax on general circulation magazines but not on religious, professional, trade, or sports journals.
Importance: USSC ruled tax was unconstitutionally discriminatory.
73
Cox Broadcasting v. Cohn (1971)
Facts: A television station reported the name of a rape victim which was in violation of a Georgia statute. The father of the victim brought a civil suit against the station.
Importance: USSC ruled a state does not have the right to punish the media if the information is obtained in an open court room.
74
Landmark Communication, Inc. v. Virginia (1978)
Facts: The Virginian Pilot published the name of a judge being investigated for misconduct by the Virginia Judicial Inquiry and Review Commission. This action violated state law.
Importance: The USSC declared that Virginia could not punish the media for publishing truthful information about a confidential judicial inquiry.
75
Smith v. Daily Mail Pub. Co. (1979)
Facts: Two newspapers identified a 14-year-old who shot and killed a classmate at a junior high school. Reporters obtained the name by asking witnesses, police and prosecuting attorneys. This action violated a WVA statute.
Importance: The USSC ruled that a WVA statute was overbroad because it singled out only newspapers for punishment.
Court did say a state can punish the media for truthful information “to further a [state’s] need of the highest order.”
76
U.S. v. Progressive (1979)
Facts: A federal judge stopped the Progressive from publishing an article describing how to build an H-bomb. Even though the article was based on public information, it violated the Atomic Energy Act.
Importance: Federal government dropped its suit after information similar to the Progressive’s article was published elsewhere. The government was successful in restraining the publication and ultimately altering the content of the article.
77
Snepp v. U.S. (1980)
Facts: Frank Snepp published a book, Decent Interval. He violated his CIA contract by publishing before submitting the manuscript to the CIA.
Importance: Non-Disclosure employment contracts are not a prior restraint and are not unconstitutional. Snepp’s earnings from books, movies, speeches, etc. go to “constructive trust” which revert to the government.
78
Morison v. U.S. (1988)
Facts: Samuel Morison, a civilian Navy analyst, was convicted in federal court of violating the Espionage Act of 1917. He passed a secret satellite photo of a Soviet aircraft carrier to Jane’s Defense Weekly.
Importance: The government may punish an individual for leaking national security information to unauthorized persons in peace time.
79
Florida Star v. BJF (1989)
Facts: A reporter-trainee for the Florida Star acquired B.J.F.’s name from a press release prepared by the sheriff’s department. Her name was published in violation of a state statute.
Importance: The USSC ruled a media defendant can not be punished for lawfully gained information; however, if the statute was drawn more narrowly (in the future), then the media could be punished for publishing truthful information. Interest of the highest order.
80
Content-based Laws
Discriminates against speech based on the substance of what it communicates.
81
Strict Scrutiny
use least restrictive means to advance a compelling governmental interest.
82
Compelling Interest
interest of the highest order that relates to core constitutional concerns or the most significant functions of government.
83
Content-neutral Laws
Does not discriminate against speech based on the substance of what it communicates.
84
Intermediate Scrutiny
restricting speech as little as necessary to advance an important government interest unrelated to speech.
85
O’Brien Test
1. Is unrelated to the suppression of speech
2. Advances an important or substantial government interest
3. Is narrowly tailored to achieve that interest
86
Texas v. Johnson (1989)
Facts: Gregory Lee Johnson burned an American flag at the 1984 Republican National Convention in Dallas to protest the policies of the Reagan administration.
Importance: The USSC stated that the burning of the U.S. flag is protected by the Constitution as a symbolic form of speech.
87
R.A.V. v. City of St.Paul (1992)
Facts: Robert A. Victoria was charged for burning a cross inside a fenced yard of the home of Russ and Laura Jones, a black couple. The 17-year-old was charged under a city ordinance.
Importance: The USSC declared a city ordinance which was based on “race, color, creed, religion or gender” fighting words was unconstitutional content regulation.
88
Hazelwood School District v. Kuhlmeier (1988)
Facts: A principal censored an article about teen pregnancies and one about divorce from the student newspaper, Spectrum.
Importance: The USSC held that public high school principals can censor high school newspapers.
89
Virginia v. Black (2003)
Facts: Three defendants were convicted on two separate cases of violating the Virginia statute against cross-burning
Outcome: Ruled for Black.
Importance: States may punish cross-burning, but only if the intent is to intimidate someone. This ruling protects “messages of shared ideology.”
89
Miami Herald v. Tornillo (1974)
Facts: The Miami Herald refused to publish a reply to the paper’s criticism of Pat Tornillo, a candidate for the state legislature. The paper charged that Tornillo had led an illegal teachers’ strike a few years earlier.
Importance: The USSC held that newspapers have stronger First Amendment rights than electronic media.
90
Citizens United v. Federal Election Commission (2010)
Facts: A nonprofit organization, Citizens, wanted to fund advertisements broadcast on television and air a film about then Sen. Hillary Clinton. This was considered to be in violation of the Bipartisan Campaign Reform Act (commonly known as the McCain-Feingold Act of “BCRA”).
Outcome: The USSC ruled for Citizens.
Importance: The Supreme Court struck down those provisions of the BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and “electioneering communications.”
91
303 Creative LLC v. Elenis (2023)
Facts: An evangelical Christian graphic artist from Colorado said she did not want to make wedding websites for same-sex couples. The state of Colorado required businesses to offer the same services to everyone, regardless of sexual orientation.
Outcome: The USSC ruled that the First Amendment protected Lorie Smith, the designer, from being forced by the state to create speech she does not believe.
Importance: This is the first time the Court has given businesses open to the public a constitutional right to refuse to serve members of a protected class.
92
Counterman v. Colorado (2023)
Facts: Billy Raymond Counterman repeatedly contacted a person over Facebook in 2014, sending her “creepy” messages from numerous different accounts even after she repeatedly blocked him. Some of the messages implied that Counterman was watching her and saying that he wanted her to die or be killed.
Outcome: The USSC ruled that to establish that a statement is a “true threat” unprotected by the First Amendment, the State must prove that the defendant had some subjective understanding of the statements’ threatening nature.
93
Prurient interests
lustful thoughts or sexual desires.
94
Patently Offensive
hard-core sexual conduct.
95
Sexting
using digital technology to transmit pictures of minors (scantily dressed, nude, semi-nude, or engaged in sexual activities) to others with or without permission.
96
Deepfakes
superimposing a person’s face on another person’s body in malicious visuals.
97
Sextortion
someone threatens to distribute private and sensitive material of a person if they don’t provide them images of a sexual nature, sexual favors, or money.
98
Obscenity
legally defined - judicial concept defined over time.
99
Indecency
term applied by the FCC to broadcast TV and radio and by extension to leased access programming on cable TV.
100
Pornography
generic term used popularly but not by the courts - except for child pornography - but pornographic material has been regulated.
101
Regina v. Hicklin (1868)
Facts: This English litigation was the result of the distribution of an immoral publication. The pamphlet was actually anti-Catholic but prosecuted under the Obscene Publication Act of 1857.
Importance: Allows the isolated passage effect (where if one line is obscene, the entire work is obscene), uses a susceptible person standard (where if the work would cause someone to model the behavior depicted in the work, it is obscene). Both must be true. Came to be known as the “Hicklin Test,” the very first test of obscenity—and a bad one.
102
Anthony Comstock
Comstock advocated the adoption of the 1873 Comstock Act. The Comstock Act prevents individuals from distributing obscene material by using the Federal Mail.
Comstock was appointed to enforce this federal law and would look through people’s mail and declare it obscene, then confiscate it.
103
Roth v. U.S. & Alberts v. California (1957)
Facts: Roth was convicted for mailing an obscene book, circular, and advertising. Alberts was convicted for the distribution of obscene books in California.
Importance: Hicklin Test is overturned and is replaced by the Roth Test. The USSC ruled that obscenity must 1. Be determined by the average person, 2. The work must be judged as a whole, and 3. The obscenity is utterly without redeeming social importance. All parts must be met for a work to be obscene.
104
Miller v. California (1973)
Facts: Miller was convicted under state law for conducting a mass-mailing campaign to advertise four books and a film containing sexually explicit pictures and drawings.
Importance: We now use the Miller Test. 1. Average person, 2. Applying contemporary community standards, 3. The work taken as a whole appeals to prurient interests, 4. Work is patently offensive as defined by applicable state law and the work lacks SLAPS (Serious Literary, Artistic, Political, or Scientific value). All parts must be met for a work to be obscene.
105
Concentration Zoning
All obscene business are put into one area.
106
Dispersal Zoning
Does the exact opposite of concentration zoning—the obscene business can’t be near anything (exclusions include schools, libraries, churches, etc.)
107
Civil Rights Approach
Andria Dworkian was a feminist writer, teamed up with Catherine MacKinnon in the late 70s-early 80s. It was their belief that even the existence of sexually explicit material was harmful and degrading to women. Their argument was that any obscene material violates the Civil Rights Act. It would circumvent the Miller Test. The courts ruled that you could sue on those grounds, but you would still have to meet the Miller Test.
108
1968 President’s Commission on Obscenity and Pornography (Lockhart Commission)
An experiment that showed tame pornography and tested attitudes and reactions of it.
Effects:
1. Ban all state laws on consumption of obscenity by consenting adults.
2. No link of consumption of obscene material to violent crimes.
3. Did not study the impact of juveniles, so keep laws to protect them.
Senate rejected report/conclusions.
109
1986 Meese Commission
Four major cities surveyed victims of sexual crimes on whether their abuser consumed sexual material before the act.
Effects:
1. Concluded a link does exist between violent obscenity and violence in society.
2. Made numerous (99) recommendations to curtail access to obscene material.
110
U.S. v. Ulysses (1934)
Facts: Custom officials tried to stop the importation of James Joyce’s Ulysses. Takes place when the Hicklin test is active, and marks the start of moving away from the isolated passage clause in Hicklin.
Importance: A federal judge in New York ruled that the literary or artistic merit of a work can be weighed against any incidental obscenity.
111
Ginsberg v. New York (1968)
Facts: Sam Ginsberg was convicted for selling “girlie” magazines to a minor. These magazines had been found not to be obscene for adults. New York at this time has a variable obscenity statute, different standards for adults and juveniles. There could be a work that is not obscene to an adult, but obscene to a juvenile.
Importance: The USSC established a variable standard of obscenity—one for adults and one for juveniles.
112
Ginzburg v. U.S. (1966)
Facts: Ralph Ginzburg mailed a hardbound magazine along with two other periodicals. Ginzburg’s advertising emphasized the erotic nature of his publications.
Importance: The USSC ruled that Ginzburg was guilty of pandering. Pandering is advertising and promoting non-obscene material in an obscene way.
113
New York v. Ferber (1982)
Facts: Ferber was convicted for selling undercover police two films of young boys masturbating.
Importance: The USSC declared that there is a need to protect the physical and emotional well-being of minors.
114
Memoirs v. Massachusetts (1966)
Facts: John Cleland’s Memoirs of a Woman of Pleasure (known as Fanny Hill) was ruled to be obscene.
Importance: The USSC held that to be obscene a work must be utterly without redeeming social value.
115
Redrup v. New York (1967)
Facts: Redrup was prosecuted for the distribution of “sexy” magazines. The publications contained pinup pictures of scantily clad females, but no sexually explicit activity.
Importance: The USSC declared that statutes concerning obscene materials must be specific and narrow in scope.
116
Stanley v. Georgia (1969)
Facts: Stanley was convicted for possession of obscene films found while police were searching his residence for evidence of illegal bookmaking.
The USSC ruled that the private possession of obscene material is permissible.
117
Hamling v. U.S. (1974)
Facts: Hamling was convicted by the use of expert witnesses.
Importance: The USSC held that jurors may rely on their own knowledge of their community’s standards.
118
Young v. American Mini Theaters (1976)
Facts: Detroit passed a zoning ordinance that prohibited adult bookstores and theaters from locating close to residential areas, churches, or in close proximity to other sexually oriented businesses.
Importance: The USSC ruled that “erogenous zones” are a valid way to control obscenity.
119
Reno v. ACLU (1997)
Facts: The ACLU challenged the Communication Decency Act (a subsection of the Telecommunications Act of 1996) as unconstitutional on its face. The CDA declared that if there was obscene material on the web, the ISP, the poster, and the consumer of that material could be prosecuted.
Outcome: The USSC ruled the CDA was unconstitutional.
Importance: The USSC ruled that communication via the Internet deserves the highest level of First Amendment protection.
120
Ashcroft v. Free Speech Coalition (2002)
Facts
In 1996 Congress adopted an amendment to the federal child pornography law that barred the sale and distribution of any images that “appear” to depict minors performing sexual acts.
Outcome: The USSC ruled the amendment violated the First Amendment.
Importance: The Court ruled that the justification for the law was insufficient since Congress had failed to produce any evidence linking images to actual child abuse.
121
1977 - Protection of Children Against Sexual Exploitation (punishes you for knowingly shipping, receiving, distributing, or reproducing visual depictions of minors engaged in sexual conduct)
Constitutional
122
1990 - Child Protection Restoration And Penalties Enhancement Act (if you are producing a sexually explicit film, you must keep records of the ages of the performers)
Constitutional
123
1996 - Child Pornography Prevention Act (virtual children)
Unconstitutional
124
1997 - Communication Decency Act (CDA)
Unconstitutional
125
1998 - Child Online Protection Act (Prohibits websites from knowingly transmitting sexually explicit conduct to minors)
Unconstitutional
126
2000 - Children’s Internet Protection Act (if you are receiving public library fuds, you must have filters installed on internet-capable computers)
Constitutional
127
2003 - PROTECT Act (Illegal to pander child pornography)
Constitutional
128
2017 - Fight Online Sex Trafficking Act (FOSTA) (penalizes ISPs for knowingly allowing sex-trafficking communications)
Constitutional
129
2021 - Cyber Civil Rights Initiative
A group that offers help to anyone that’s undergone cyberbullying.
130
U.S. v. Williams (2008)
Facts: Williams tries to sell an undercover officer’s photos involving a four-year-old girl. When he is arrested he is in possession of child pornography, but not the specific photos he advertised.
Importance: The USSC ruled the PROTECT Act was constitutional and upheld Williams’s conviction.
131
Osborne v. Ohio (1990)
Facts: Ohio had a state law that made it a crime to view child pornography in his own home. Osborne was arrested and convicted on lower court and on appeal.
Importance: The USSC upheld the conviction and stated that the state’s interest far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of pornography as in Stanley v. GA.
132
Brown v. Entertainment Merchants Association (2011)
Facts: California passed a law that banned selling or renting violent video games to minors.
Outcome: The USSC invalidated the statute.
Importance: The government may not ban material due to its content.
