exam 1 Flashcards
law
rules of conduct
ethics
obligations as professionals
sources of the law
constitutions (US and state)
statutes
administrative law
common law
statutes
laws we’re familiar with, black-letter law
administrative law
FCC laws
common law
courts have the power to create law—rulings set precedent
US constitution
8 articles, various amendments
statutory law
written by legislative branch (ex: tax code)
stare decisis
courts make decisions based on precedent
allows individuals to govern themselves
criminal law
responsible to society
victim can’t “press charges”
grand juries
decide whether enough evidence exists for someone to be indicted (charged with a crime)
conducted in secret
civil law
plaintiff (citizen) files a lawsuit, must demonstrate a cause of actions
criminal burden of proof
beyond a reasonable doubt
civil burden of proof
preponderance of the evidence, at least 51%
trial courts
first entry to the court system
courts of appeals
determines if the law was applied correctly in the lower court
13 circuits
US court of appeals
doesn’t hear evidence again
3-judge panels
rights in the first amendment
religion speech press petition peaceably assemble
marketplace of ideas
ideas should be freely expressed, the market will decide what is valuable
John Stuart Mill
all ideas are equal and valuable
opinions shouldn’t be suppressed because they might be true
prior restraints
stopping the dissemination of ideas before they reach the public
when prior restraint is constitutional
preventing: obstruction of military recruitment publication of troop locations, numbers, movements in times of war obscene publications imminent threat to national security
rational bias (standard of review)
reasonable relationship to legit state interest?
intermediate scrutiny
law must be substantially related to an important government interest
content-based laws
strict scrutiny, symbolic speech
presumed to be unconstitutional
content-neutral laws
time/place/manner laws
intermediate scrutiny
affect speech, but not on the base of content
O’Brien test
not related to the suppression of speech
advances an important gov’t interest
narrowly tailored to achieve that interest with only incidental restriction of free speech
traditional public forums
streets, sidewalks, parks
designated public forums
public property opened for expressive activity by the public (ex: public theater, school building outside of school hours)
non-public forums
gov’t-held property, not available for public speech and assembly purposes (ex: military base)
clear and present danger
expression can be limited when it presents a clear and present danger to national security
The Incitement Test (Brandenburg Test)
KKK rhetoric
Incitement to violence or legal action?
Was the incitement to violence likely to occur?
Was the incitement imminent?
Fighting Words Doctrine
No protection on words that are:
- directed an individual
- inflict immediate harm
- trigger immediate violence
symbolic speech
legal to burn flags
flag-burning is expressive conduct
can’t just say something is illegal because we don’t like it
not just what you say, but how you say it is protected
to be a true threat
directed toward one or more individuals
intent of causing the listener(s) to fear bodily harm or death
posts on social media are still undefined
When can speech in schools be regulated?
- it materially disrupts the functioning of the public school
- violates rights and interests of other students
- conflicts with pedagogical goals or public values
- if it occurs in a school forum or event or as a part of curriculum and entangles the school with a religious viewpoint
- the speech advocates illegal drug use
(fear of disturbance isn’t enough to regulate speech)
defamation
the act of harming another by making a false statement about another person
libel per se
doesn’t need proven further
accusation of dishonesty
libel per quod
context matters
statements may appear harmless alone but are defamatory when put in context
libel
defamatory content falsity identification of the plaintiff publication fault harm
defamatory content qualifications
injures reputation
statement of fact rather than opinion
capable of objective verification
falsity
able to be proven false
identification of the plaintiff
material is of and concerning the plaintiff
25 or fewer group members
publication qualifications
3rd party hears or sees it
republication: still responsible
vendors and distributors: not considered republication
fault qualifications
strict liability
negligence
recklessness
strict liability
product liability
harm qualifications
at least reputational harm
NY Times v Sullivan
statements about public figures aren’t libelous unless made with “actual malice”
defined actual malice
actual malice
knowledge that a statement was false, or reckless disregard of whether it was false or not
all-purpose public figures
pervasive fame (ex: movie stars, pro athletes)
limited-purpose public figures
involved in a specific issue, step into spotlight voluntarily, tries to influence public opinion, greater access to media
have to prove actual malice
public figures
prove negligence
private figures
absolute fair report privilege
statement made as a part of official proceeding, protected (executive, legislative, judicial)
conditioned/qualified fair report privilege
fair and accurate reporting
fair comment and criticism
claim is brought by individuals “in the public eye” (artists, entertainers, writers)
opinion—Ollman Test
verifiability, common/ordinary meaning, journalistic context, social context
neutral reportage
republication: wire service defense
- reputable news gathering agency
- didn’t know the story was false
- republished without substantial charge
libel defenses
retraction statuses
damages capped if speaker retracts the record
retraction statuses
not necessarily a defense, but may limit liability
false light
protects a person from emotional distress
publishing false facts about someone that would be highly offensive to a reasonable person
