Final Flashcards
actual malice
In libel and intentional infliction of emotional distress, defendant knew or suspected that statement was false
administrative law
Rules enacted by government agencies, such as Federal Communications Commission
agencies
parts of government subject to FOIA
appellate court
hears appeals of lower court rulings; never includes jury
appropriation
Tort alleging use of plaintiff’s image for profit without permission
assembly
right to gather together, listed in First Amendment
association
right to affiliate with others; protected by First Amendment though not listed there
Bill of Rights
first 10 amendments to the U.S. Constitution
burden of proof
rule determining which party to a lawsuit must produce evidence to prove an
issue; in libel, plaintiff carries burden of proof for all elements
Supreme Court’s decision to take a case
Certiorari
Chief justice
Chief judge on Supreme Court
Child pornography
Sexual images of actual children
Action that inhibits you from exercising lawful rights, including speech
Chilling effect
Court proceeding that might force losing defendant to pay damages (money)
Civil law
Commercial speech
Proposal for a transaction; offer to buy or sell
Type of appropriation tort filed by private person who isn’t interested in profiting off his/her low-value image
Commercialization
Common law
Judge-made law, developed gradually over time
Opinion written by judge who agrees with court’s ruling but wants to express additional thoughts
Concurring opinion
Constitutional law
Judges’ interpretation of the Constitution
Contempt of court
Penalty for disobeying judge’s order
Property right in one’s writings and other creations that can be enforced in court
Copyright
Notion that judges override majority rule when constitutional rights are at stake; e.g., government can’t take away your freedom of speech even if a majority of voters want to do so
Countermajoritarian
Criminal law
Court proceeding that might force losing defendant to go to jail or pay fine
Compensation (money) awarded in civil suit; can be general, special, or punitive
Damages
Defamation
Element of libel referring to whether speech at issue would actually harm someone’s reputation
Defendant
Person (or corporation) sued by plaintiff
Fair report privilege
Protects some statements that might otherwise be libelous
Defense to copyright infringement
Fair use
Level of defendant’s wrongdoing that plaintiff must prove in order to win civil case
Fault
Fighting words
Insult delivered face to face that tends to provoke listener to punch you
FOIA
federal Freedom of Information Act
In libel, costs that are difficult to evaluate precisely in dollar terms, such as pain and suffering
General damages
Offensive speech targeting someone’s sex, religion, ethnicity, or other identity; crime in many countries but protected by First Amendment in U.S.
Hate speech
Identification
In libel, whether statement at issue refers to plaintiff
Speech likely to provoke immediate unlawful action
Incitement
Doctrine that extends First Amendment coverage to states and localities, even though Constitution refers only to “Congress”
Incorporation
Intentional infliction of emotional distress
Tort that seeks damages for outrageous, hurtful behavior
Intermediate scrutiny
Constitutionality test for some speech-related laws; not as difficult to pass as strict scrutiny
Intrusion
Tort for entering place that plaintiff someone reasonably expects to be private; also can apply to getting private information in some circumstances
Judicial review
Courts decide whether something violates the Constitution
Jury nullification
Jury disregards law and finds defendant not guilty
Judge on Supreme Court
Justice
Libel per se
Type of defamatory statement; a plaintiff in Nevada may have an easier time winning suit for libel per se than for other libels
Statements that harm someone’s reputation
Libel
Libel-proof plaintiff
A person whose reputation is already so bad that he/she cannot prove that libelous statements inflicted any further harm
Limited-purpose public figure
In libel, a person who has become well-known by voluntarily taking part in a controversy
Mode of interpretation that looks beyond Constitution’s written text and takes into account contemporary values and ideals
Living Constitution
Failure to exercise reasonable care
Negligence
Extreme sexually explicit images
Obscenity
Originalism/original intent
Mode of interpretation based on meaning of Constitution’s words when written
Federal law enacted after 9/11; limits privacy in various ways
PATRIOT Act
Person (or corporation) who files a lawsuit
Plaintiff
Precedent
Earlier decision of court that’s relevant to current case
Word in First Amendment with almost no legal importance, because courts protect written expression under freedom of speech
Press
Order not to publish something, issued in advance
Prior restraint
Public disclosure
Element of publication of private facts tort
In libel, a very well-known person
Public figure
In libel, a government employee with substantial responsibility
Public official
Publication of private facts
Tort for classic invasion of privacy—spreading truthful but humiliating information
In libel, whether statement at issue reached an audience
Publication
Money awarded to punish defendant
Punitive damages
Right of publicity
Type of appropriation tort filed by well-known person, seeking damages for use of his/her valuable image without permission
Time during which broadcasters can air indecent programming
Safe harbor
A defense in libel and copyright cases
Satire/parody
Secondary-effects doctrine
Lets government regulate adult businesses based on impact they may have on neighborhood
Let journalists refuse to testify or provide evidence related to newsgathering
Shield laws
SLAPS
In obscenity, serious literary, artistic, political, or scientific value
In libel, out-of-pocket costs that a plaintiff can prove with specificity, such as lost income
Special damages
Under First Amendment, expression of all types, including nonverbal forms such as topless dancing and flag-burning
Speech
University rules limiting what students and faculty can say; generally unconstitutional at state universities but OK at private ones under state action doctrine
Speech codes
Stare decisis
Doctrine that courts generally follow precedents
State action
Action by part of government; First Amendment applies only to state action
Deadline for bringing lawsuit; in Nevada, two years for libel
Statute of limitations
Law written by legislatures
Statutory law
Strict scrutiny
constitutionality test for most speech-related laws; very difficult to pass
Court order to testify or produce evidence
Subpoena
Rule restricting mode of expression but not content, such as law against using megaphones on street at midnight; often constitutional
Time-place-manner
Civil allegation of wrongdoing for which court can award money damages
Tort
Defense to suits for appropriation and copyright infringement, in which defendant claims to have substantially altered plaintiff’s work or image and produced a new, artistic creation
Transformative
Trial court
Starting point for civil lawsuits and criminal trials; often includes jury
Population from which juries are chosen
Venire
Process of questioning potential jurors in court to decide who will be on jury
Voir dire
Work for hire
Employer generally owns copyright to material that employees create on the job
The First Amendment generally applies to all parts of government, not just to Congress, under the
incorporation doctrine
The antidemocratic nature of constitutional law is illustrated by
- The way that constitutional rights cannot be overcome by simple majority vote.
- The difficult nature of the amendment process.
- The fact that Supreme Court justices are unelected and generally serve for life or until they resign.
Freedom from unlawful searches and seizures is ___________ under the First Amendment
Not Protected
The Constitution, under the state action requirement
applies only to government, not to private individuals and companies
both involved the mandatory flag salute
The Gobitis and Barnette cases
American governments in the correct order
Continental Congress, Articles of Confederation, Constitution
_________________ under the First Amendment has a number of limitations and exceptions.
Freedom of speech
“Stare decisis” is a Latin term meaning that judges generally
follow precedents–that is, past rulings by themselves or other judges.
When Congress sent proposed amendments to the states for ratification, what we know as the First Amendment was originally
third
True or false: Barnette overruled Gobitis
True
Judges who embrace the doctrine of originalism focus on
what the words of the Constitution meant at the time of the framing
Generally speaking, public school students can be punished for advocating
the use of illegal drugs
Which judges sit on the Nevada state appeals court?
Nevada doesn’t have a state appeals court
A decision of the Federal Communications Commission is an example of
administrative law
Generally speaking, courts have found college speech codes banning hate speech to be
unconstitutional
Generally speaking, which courts have juries, witnesses, and evidence?
trial courts
The Tinker case involved students who
wore armbands in protest of war
NOT generally advanced as a purpose of free speech?
emanations and penumbras
Under Hazelwood, when a school creates and supervises a forum for student speech, such as a school-sponsored newspaper, the school generally
can control the content
A justice who thinks the majority has reached the wrong holding in a case may write a
dissenting opinion
After 9/11, Congress enacted
the USA Patriot Act
The federal government wants to prosecute Edward Snowden for violating the Espionage Act, because he revealed national security secrets knowing that the information would reach enemies of the United States. Snowden released some information via the New York Times. What seems to be the reason that the Times and its editors aren’t being charged under the Espionage Act too?
Snowden worked for the government and took an oath. Times editors didn’t.
In his dissenting opinion in FCC v. Pacifica Foundation, Justice Brennan argued that broadcasters ought to be able to air such words as “bullshit” and “fuck” because of
cultural pluralism
In the Pentagon Papers case, the Supreme Court
authorized newspapers to continue publishing the classified documents
The Pentagon Papers case in the Supreme Court was called
New York Times v. United States
In FCC v. Pacifica Foundation, the Supreme Court ruled that the FCC can subject broadcasting to stricter regulation than print. Which of the following did the Court not cite as a factor justifying the different approach for broadcasting?
Broadcast licenses are uniquely expensive.
The FCC allows broadcasters to air some material anytime. Other material can be aired only between 10 p.m. and 6 a.m. What type of material does the FCC prohibit at all hours?
obscenity
What happened in the Progressive magazine case?
The court imposed a prior restraint to prevent the magazine from publishing plans to the hydrogen bomb.
In the 2012 case on so-called fleeting expletives, what did the Supreme Court do?
Did not address the First Amendment issue.
Constitutional rights apply only if the government interferes with you, not if private parties do so, under the
state action doctrine
Can a dead person, through his estate or an heir or otherwise, go to court and file a successful lawsuit for libel?
No
Punitive damages are designed to
punish the defendant
Are bloggers potentially liable for posting libelous statements online?
Yes
To be libelous, a statement must “defame” the plaintiff. That means it must
harm the plaintiff’s reputation
In a libel lawsuit, who must prove that a statement is false?
the plaintiff
NOT an element of the plaintiff’s libel case?
imminent danger
Is sometimes also a crime
tort
Can branches or agencies of government sue for libel?
No, never
The element of publication in libel law requires that a defamatory statement that is in writing
Be read by at least one person besides the plaintiff
To say that Nevada has a two year statute of limitations for defamation lawsuits generally means that
a lawsuit can move forward only if it is filed less than two years after publication
The fair report privilege applies where
he article fairly and accurately presents information from a police report or other public, government document
A man sues you for burning his house down. (You’re not a public figure.) You don’t know him, you never went to his neighborhood, and you were out of town that day. A local newspaper quotes the plaintiff’s documents filed in court without getting your side of the story. You sue the newspaper for libel, because it republished someone else’s libelous remarks. Will you win?
No
You’re angry at your roommate, who suffers from anxiety. You hide behind a door and shout “Boo!” when he walks by. The episode causes him severe emotional distress, just as you had hoped. He’s a private figure. He sues you for intentional infliction of emotional distress. Is he likely to win?
No, because your conduct wasn’t extreme and outrageous
New York Times v. Sullivan and other cases have had what effect(s) on libel law?
- Generally, strict liability is no longer applicable in states where it used to be before Sullivan.
- Far fewer cases reach the jury now than before Sullivan.
- More libel judgments get overturned on appeal than before Sullivan.
Adolf Hitler (who surprisingly turns up alive) sues you for wrongly reporting that he fled the scene of an auto accident. Your STRONGEST defense, if the jurisdiction accepts it, is likely to be
libel-proof plaintiff
You write that Governor Sandoval’s budget cuts demonstrate that he is a traitor to the State of Nevada. He sues for libel. Your STRONGEST defense is likely to be
hyperbole, exaggeration
In Snyder v. Phelps, the father of a Marine killed in Iraq sued Westboro Baptist Church leaders for picketing near his son’s funeral. The father sought damages for intentional infliction of emotional distress. What was the result in the Supreme Court?
The father lost because the church’s signs addressed a matter of public concern.
A plaintiff must prove all elements of a libel case. To prevail in response, a defendant must prove how many defenses?
One
NOT an element of a prominent appeals court’s test for whether a statement is fact or opinion?
clarity
elements of a prominent appeals court’s test for whether a statement is fact or opinion?
common usage of words, journalistic context, social context
Generally protected under the First Amendment
Offensive speech
In the Hit Man case, the Fourth Circuit Court of Appeals held that a speaker may be liable for inciting lawless action, even though the lawless action occurs much later, if the speaker
intends to bring about that result
For speech to be punishable as a true threat, a speaker must direct the threat to one or more individuals
with the intent of causing the listener to fear bodily harm or death.
Dissenting in Brown v. Entertainment Merchants Association, Justice Breyer said that the case is less about censorship than it is about
Education
In Brown v. Entertainment Merchants Association, the Supreme Court said that violent videogames are
a form of speech with First Amendment protection
Police arrest someone because his hate-filled speech is likely to cause a hostile audience to attack him, is an example of
a heckler’s veto
When the Supreme Court agrees to hear a case, it generally issues a writ of
certiorari
Vanna White sued, alleging that a robot resembling her had invaded her privacy. Which privacy tort did she use?
Appropriation
NOT an element of the intrusion upon seclusion tort?
Actual malice
elements of the intrusion upon seclusion tort?
Reasonable expectation of privacy, Intentional intrusion on the privacy, Intrusion that would be highly offensive to a reasonable person
NOT an invasion of privacy tort
copyright
invasion of privacy tort
appropriation, publication of private facts, intrusion
In some states, the privacy right that survives a person’s death is called
right of publicity
When a so-called human cannonball sued a TV station for broadcasting his entire act, the Supreme Court
held that the station had infringed his right of publicity
A celebrity sues you for publishing a depiction of her. Which of the following is not a defense that you can plausibly raise?
She’s no longer a celebrity; she’s a has-been.
Who were Warren and Brandeis?
authors of an influential article on privacy law
