Final Exam Flashcards
What is common law?
The common law: the judge-made law; precedent; discovered law.
What does Stare decisis mean?
Let the decision stand
Under common law a court may do three things. These - Modify the precedent - Distinguish the precedent - Overrule the precedent are….
- Modify the precedent - Distinguish the precedent - Overrule the precedent
What is the law of equity?
The law of equity: judge-made law focused on outcomes that are fair and equitable
What is statutory law?
law made my legislative bodies that are case by case sort of laws rather than big issues
law made my legislative bodies that are case by case sort of laws rather than big issues
- Article I: Powers of Congress - Article II: Powers of the President - Article III: Powers of the judiciary - Article IV: State powers; extradition; admission of new states; guarantee of republican form of government for each state and protection from invasion - Article V: Amending the Constitution; only if ¾ vote of the states - Article VI: The Constitution is the supreme law of the land; oaths of office; religious tests not allowed - Article VII: The Constitution is ratified upon a vote of nine states
What is diversity of citizenship action?
A civil action in which the parties are residents of different states; the U.S. Constitution allows federal district courts to hear such cases, even if the subject matter of the suit is one of state law, as long as the amount in controversy exceeds $75,000
What is writ of certiorari?
First off, a writ is an order by a court requiring some action or giving authority and commission to that act. A writ of certiorari. A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certioari comes from Law Latin and means “to be more fully informed.” A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. The U.S. Supreme Court uses certiorari to pick most of the cases that it hears.
What is the first step in how does the Supreme Court work with new cases?
First, a writ of certiorari is filed. `
What happens after the writ of certoirari is filed?
The judges vote on it. It’s the rule of 4: if four judges vote affirmative it is granted. If it fails to approve, a justice can dissent from denial of certiorari if he feels it needs to be granted
What happens after a writ of certoirari is granted?
- Oral arguments (30. Mins. Per side) o Side bringing the case goes first o “You should side in this manner because”
What happens after a oral arguments?
- Discussion at conference o Refer to themselves as conference not the court except when they are on the stand o Discuss each case they heard that week o Each justice votes on the case o Based on that discussion, author of the majority opinion is determined Always chief justice, or if not in majority, senior associate justice who is in the majority
What happens after the justices discuss?
The official opinion is delivered.
What is the opinion of the court?
Opinion of the court: the majority, and therefore, controlling opinion. It expresses the judgment of the court and the rationale behind that judgment.
What is the judgement of the court?
Judgment of the Court: the result or outcome.
What is the plurality opinion?
- Plurality opinion: in the absence of an opinion of the court, the opinion that commands the most votes
What is the per curiam opinion?
- Per curiam opinion: unsigned opinion “by the Court”, not much debate over the outcome -Example: 1973, certain material could be obscene despite 3 part test
What is a concurring opinion?
Concurring opinion: an opinion agreeing with the opinion of the court but written to highlight or emphasize a particular point or points
What is an opinion concurring in judgement?
Opinion concurring in judgment: an opinion agreeing with the majority or plurality opinion, but not with the rationale, the justice is not counted as part of the majority or plurality
What is a dissenting opinion?
Dissenting opinion: an opinion disagreeing with the opinion of the court or with the plurality
What is an opinion concurring and dissenting?
The justice agrees
What were the facts behind Branzburg v. Hayes?
Branzburg one of the Petitioners observed the making of hashish from marijuana and was later called before a grand jury to implicate the persons involved. Two of the other Petitioners, Pappas and Caldwell, both covered the Black Panthers and were later called to a federal grand jury to discuss their findings. All three reporters refused to participate in the grand juries claiming a newman’s privilege.
What was the issue discussed in Branzburg v. Hayes?
Do journalists have a First Amendment right to withhold the identities of news sources from grand juries or other law enforcement agencies?
What was the opinion of the court in Branzburg v. Hayes?
White, j by Burger, Blacknum, Powell, Rehnquist = Journalists don’t have a First Amendment right to withhold the identities of news sources from grand juries or other law enforcement agencies but media harassment will not be tolerated
What is Congress comprised of?
-The House of Representatives (based on population) -The Senate (2 senators from each state, 6 year terms)
What is the 14th Amendment (1868)?
-Sec. 1: o”All persons born or naturalized in the United States and the subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.” -Sec. 2: o“No state shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.”
What is the background behind Gitlow v. New York?
The Petitioner was charged with criminal anarchy because he was an advocate of socialist reform in the United States. The Petitioner is a member of the Left Wing Section of the Socialist Party. He served as the business manager for the paper that was run by the organization. In 1919 he published the group’s manifesto and prepared for widespread distribution from the New York City headquarters
What is the issue behind Gitlow v. New York?
Did the statute prohibiting such activity deprive the Petitioner of his First Amendment constitutional right to freedom of expression?
What was the outcome of Gitlow v. New York?
The law under which he was convicted was unconstitutional because it violated free speech and freedom of the press rights
What was important about Gitlow v. New York?
This is the case where the Supreme Court applied the First Amendment to the United States through the 14th Amendment. “For present purposes we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgement by Congress – are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the states.” – Justice Edward Sanford
What is the background behind Tinker v. Des Moines School District (1969)?
Petitioner was a high school student who joined his parents in protesting the Vietnam War. The form of protest was to wear a black armband for a period of two weeks during the holiday season. When Petitioner arrived at school he was told to remove the armband or be suspended. He took the suspension and did not return to school until after the protest period ended, New Year’s Eve 1965.
What is the issue with TInker v. Des Moines?
Is symbolic speech by public school students protected under the First Amendment?
What was the outcome of Tinker v. Des Moines?
Students don’t leave their First Amendment rights at the schoolhouse gate, but speech may not materially and substantially interfere with discipline.
What was the background behind U.S. v. O’Brien (1968)?
The Defendant was convicted under Section:462(b)(3) of the Universal Military Training and Service Act (UMTSA) of 1948, amended in 1965 to include the applicable provision that made it an offense to “alter, knowingly destroy, knowingly mutilate” a Selective Service registration certification. Defendant knowingly burned his draft card on the front steps of the local courthouse. The Court of Appeals held the 1965 amendment unconstitutional as a law abridging the freedom of speech.
What is pure conduct?
Pure conduct: actions with no communicative elements. For example: Flag out for the Fourth of July - you realize it’s damaged so he burns the flag to dispose of the damaged flag
What is conduct that is pure speech?
Actions without any practical purpose For example: A certain candidate for election is using an American flag for all of his symbols - you pull down the flag, set it on fire and put it on the porch of your neighbor in that political party
What is mixed conduct?
Conduct that combines practical and communicative elements
What was the issue of U.S. v O’Brien?
Whether the 1965 Amendment is unconstitutional as applied to Defendant because his act of burning the draft card was protected “symbolic speech” within the First Amendment? Whether the draft cards are merely pieces of paper designed only to notify registrants of their registration or classification, to be retained or tossed into the waste basket according to the convenience of the registrant? Whether the 1965 Amendment is unconstitutional as enacted because it was intended to “suppress freedom of speech?”
What was the outcome of U.S. v. O’Brien?
No. Judgment of the Court of Appeals reversed. It cannot be accepted that there is an endless and limitless variety of conduct that constitutes “speech” whenever the person engaging in the conduct intends to express an idea. However, even if the alleged communicative element of Defendant’s conduct is sufficient to bring into play the First Amendment of the United States Constitution (Constitution), it does not necessarily follow that the destruction of a draft card is constitutionally protected activity. First, a government regulation is sufficiently justified if it is within the constitutional power of the government. Second, if it furthers a substantial or important governmental interest. Third, if the governmental interest is unrelated to the suppression of free expression. Fourth, if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest. The 1965 Amendment meets all these requirement s. Therefore, the 1965 Amendment is constitutional as applied to Defendant. No. Judgment of the Court of Appeals reversed. Although the initial purpose of the draft card is to notify, it serves many other purposes as well. These purposes would be defeated if the card were to be mutilated or destroyed. No. Judgment of the Court of Appeals reversed. The purpose of Congress is not a basis for declaring this legislation unconstitutional. Therefore, the 1965 Amendment is constitutional as enacted.
How does the court decide if the conduct is expressive?
Is the conduct expressive? Is the government regulation directly related to the suppression of expression? Is there an intent to express a message? Is there a likelihood the message will be understood by witnesses? If so…. Is the regulation aimed at suppressing speech? Yes = strict scrutiny to determine if regulation is constitutional No = intermediate scrutiny might be constitutional, might not be
What is strict scrutiny?
- Does the regulation advance a compelling government interest? - Is the regulation necessary and narrowly tailored?
What is intermediate scrutiny (The O’Brien Test)?
- Is the government regulation within the constitutional power of the government? - Does the regulation advance an important or substantial government interest? - Is the expressed interest unrelated to the suppression of free expression? - Is the incidental restriction of expression no greater than necessary to further the government interest?
What is the background behind Texas v. Johnson (1989)?
After publicly burning the American flag, the Defendant, Gregory Lee Johnson (Defendant), was convicted of desecrating a flag in violation of Texas law. The Court of Criminal Appeals overturned the conviction.
What is the issue behind Texas v. Johnson?
Whether Defendant’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment of the United States Constitution (Constitution)? Whether the state’s interest in preserving the flag as a symbol of nationhood justifies Defendant’s conviction?
Texas expressed two governmental interests in prohibiting flag burning
- the prevention of a breach of peace - preserving the flag as a symbol of nationhood and national unity
What was the outcome of Texas v. Johnson?
Yes. Judgment of the Court of Criminal Appeals affirmed. The very purpose of a national flag is to serve as a symbol of our country. Pregnant with expressive content, the flag as readily signifies this nation as does the combination of letters found in “America.” Texas conceded that Defendant’s conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, Defendant’s burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution. No. Judgment of the Court of Criminal Appeals affirmed. The state’s restriction on Defendant’s expression is content-based. Therefore, the state’s asserted interest in preserving the special symbolic character of the flag must be subjected to the “most exacting scrutiny.” To say that the Government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning the flag as a means of political protest. Therefore, the state’s interest in preserving the flag as a symbol of nationhood does not justify Defendant’s conviction because it is not consistent with the First Amendment of the Constitution.
Does Texas v. Johnson involve strict scrutiny? (Use the test).
Prevention of a breach of the peace Does the government have the constitutional power to regulate activity that might breach the peace? Yes. Does the regulation further an important or substantial government interest? Yes Is the interest in maintaining the peace unrelated to the suppression of expressi on? Yes. Is the incidental restriction of free expression no greater than is essential to the furtherance of the stated interested? No. Preserving the flag as a symbol of national unity Is that interest directly related?…Yes. Yes = strict scrutiny Is there a compelling government interest? Yes. Is the regulation necessary and narrowly tailored to advance that interest?…No.
What is the background behind Chaplinksy v. New Hampshire (1942)?
A New Hampshire statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinsky, a Jehovah’s Witness, called a City Marshal a “God damned racketeer” and a “damned fascist” in a public place and was therefore arrested and convicted under the statute.
What was the issue behind Chaplinsky v. New Hampshire?
Did the statute or the application of the statute to Chaplinsky’s comments violate his free speech rights under the First Amendment of the Constitution?
What was the outcome of Chaplinsky v. New Hampshire?
No. The lower court is affirmed. Considering the purpose of the First Amendment of the Constitution, it is obvious that the right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include “fighting words,” words that inflict injury or tend to excite an immediate breach of the peace. Such words are of such little expositional or social value that any benefit they might produce is far outweighed by their costs on social interests in order and morality. The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law, has defined the Statute as applying only to “fighting words”. Therefore, the Statute does not unconstitutionally impinge upon the right of free speech. Fighting words “are no essential part of any expression of ideas” and are of slight social value
What is the background of Virginia v. Black?
Black (D) was prosecuted because of burning a cross, and convicted of the same by a jury, under the cross-burning statute of Virginia (P) which bans cross burning with the object of creating fear in a person or a group. Such an action is taken to be evidence, prima facie, of such an intention, under a section of the law. The Virginia Supreme Court upheld the decision and Black (D) appealed.
What was the issue behind Virginia v. Black?
Is the provision in this or any other state’s cross-burning statute unconstitutional in viewing any such incident as prima facie evidence of having an intention to create fear in, or a threat to another person or group?
What was the outcome of Virginia v. Black? What were the judges opinions?
The law was unconstitutional…but cross burning, as intimidating speech, may be restricted O’Connor joined by 4 others: The 1stA is not absolute; cross burning is intimidating; it is a kind of threat and, therefore, may be proscribed O’Connor plurality; joined by 3: Not all cross burning is intimidating speech; the prima facie evidence clause makes the law unconstitutional Scalia, concurring in judgment and dissenting in part: Let the lower court construe the prima facie evidence clause Souter, concurring in judgment and dissenting in part; the statute is content-based and does not fit any R.A.V. exceptions; unconstitutional because of the prima facie evidence clause
What is a true threat?
A true threat is a threatening communication that can be prosecuted under the law. It is distinct from a threat that is made in jest.
What are fighting words?
words indicating a willingness to fight or challenge someone.
What is prior restraint?
The halting of expression at its source by the government
Prior restraint is….
“the most serious, least tolerable infringement” of First Amendment rights, and comes into Court… “bearing a heavy presumption against its constitutional validity.”
What is the background behind Near v. Minnesota (1931)?
Prior restraint is unconstitutional (5-4) The Saturday Press (the Press) published attacks on local officials. The Press claimed that the chief of police had “illicit relations with gangsters.” Minnesota officials obtained an injunction in order to abate the publishing of the Press newspaper under a state law that allowed this course of action. The state law authorized abatement, as a public nuisance, of a “malicious, scandalous and defamatory newspaper, or other periodical. A state court order abated the Press and enjoined the Defendants, publishers of the Press (Defendants), from publishing or circulating such “defamatory and scandalous” periodicals.
What is the issue behind Near v. Minnesota?
Whether a statute authorizing such proceedings is consistent with the conception of the liberty of the press as historically conceived and guaranteed?
What was the outcome/ opinion of the court for Near v. Minnesota?
No. Judgment of the state court reversed. The fact that the liberty of press may be abused by miscreant purveyors of scandal does not effect the requirement that the press has immunity from previous restraints when it deals with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with the constitutional privilege. Therefore, a statute authorizing such proceedings is not consistent with the conception of the liberty of the press as historically conceived and guaranteed and is thus, unconstitutional. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. This statute, if upheld, could lead to a complete system of censorship. Thus, the statute is a substantial infringement on the liberty of the press and in violation of the Fourteenth Amendment of the Constitution.
What is the background behind NY Times Co. v United States (1971)?
The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government’s decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint.
What is the issue behind NY Times Co. v United States (1971)?
Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study?
What was the outcome of NY Times Co v. United States?
6-3 judgment meant very little but there was a per curiam after, the newspapers could continue printing because the government did not prove there was a justification for prior restraint
What was the background behind Nebraska Press Ass’n v. Stuart (1975)?
Family found murdered, some sexually assaulted – one guy arrested for 3 of the murders, forbid the release of anything that went on during the hearing, anyone would go to the trial but not record and release to the public: press not allowed to publish anything they said
What was the issue behind Nebraska Press Ass’n v. Stuart (1975)?
Whether prior restraint could be used.
What was the outcome of Nebraska Press Ass’n v. Stuart (1975)?
Chief Justice of the United States Warren E. Burger wrote the opinion of the court. Burger wrote, “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights”. The court ruled this was particularly at issue when dealing with “communication of news and commentary on current events”. According to the ruling, it was inappropriate to bar media reporting on a criminal case prior to the trial itself, except in matters where a “clear and present danger” existed that would impede the process of a fair trial. The court characterized the press as “the handmaiden of effective judicial administration, especially in the criminal” process.
Why is Nebraska Press Ass’n v. Stuart (1975) important?
he case also put forth the opinion that it is the duty of the government to satisfy an extreme explanation in order to satisfy usage of prior restraint against the press.[2] Prior to the 1976 ruling by the Supreme Court, lower courts in the United States had initiated a practice of barring intense levels of reporting on certain issues in criminal matters; media coverage of such rulings referred to them as gag orders.
What is the background behind Rosenburger v. Rector and Visitors, UVA (1995)?
A group of students formed a Contracted Independent Organization (CIO) at the University of Virginia, entitled Wide Awake Productions (WAP), which was organized for the purpose of publishing a magazine, which expressed Christian philosophical and religious viewpoints. When the Petitioners, Rosenberger and other members of WAP (Petitioners), submitted for funds from the Student Activities Fund (to which they were entitled, due to their CIO status) for printing costs, they were summarily turned down, because their publication expressed religious viewpoints, which might be construed as the views of the public university. The Petitioners filed suit, alleging that the Respondents, the Rector and Visitors of the University of Virginia’s (Respondent), refusal to allot them a portion of the Student Activities Funds was an abridgment of their First Amendment Rights. The District Court granted summary judgment for the Respondent, noting that the Establishment Clause of the United States Constitution (Constitution) prohibited it from funding religiously-motivated activities. The Court of Appeals affirmed, and the Supreme Court of the United States (Supreme Court) granted certiorari.
What was the issue behind Rosenburger v. Rector and Visitors, UVA (1995)?
The underlying question in this case is whether a school’s refusal to fund a religiously motivated activity, under its Establishment Clause Obligations, can be allowed to abrogate the freedom of the press enjoyed by a student-run magazine
What was the outcome of Rosenburger v. Rector and Visitors, UVA (1995)?
Wide Awake magazine, purpose was to provide readers information on the Christian perspective on social events (abortion, capital punishment, etc.) – not to convert people, the purpose was to educate The government can’t regulate speech on the content* (5-4): “For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.”
What is the summary of prior restraint?
- Is a violation of the First Amendment and is the most serious and least tolerable violation - Any system of prior restraint comes into court presumed to be unconstitutional - In certain circumstances, prior restraint may be tolerated - The burden for proving the need for prior restraint is on the government, and is onerous
What is erotica?
Erotica – sexually explicit but is not demeaning, neutral term that simply means sexual
What is pornography?
Pornography – sexually explicit that is demeaning, usually women are demeaned, usually protected by First Amendment
What is obscenity?
Obscenity – pornography that crosses the line and has been determined by a court to be a kind of material that is without social worth and is therefore not protected by the First Amendment
What is the background behind Roth v. US (1957)?
Samuel Roth had a long history of convictions, minor obscenity accounts, one involved James Joyce’s Ulysses. He sent sexually explicit mail, Good Times magazine. Convicted on 4 counts, $5,000 fine and spend 5 years in jail. He appealed saying the federal law that he was convicted was unconstitutional because the law was too vague, affirmed his conviction by 5-4 vote, if it’s obscene, it’s not protected. Sexuality and obscenity are not the same
What is the issue behind Roth v US?
Is obscenity protected speech under the First Amendment of the United States Constitution (Constitution)?
What was the outcome of Roth v. US?
The federal law banning such speech is constitutional as long as the appropriate standard of obscene is used. Obscenity is “not communication and is without social value.” or: “Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”
What is background behind Miller v. California?
In this case, the Appellant, Miller (Appellant), conducted a mass mailing campaign to advertise the sale of illustrated adult material books. The Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail. The brochures consist primarily of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often predominantly displayed. This case thus involves the application of a state’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients.
What is the issue behind Miller v. California?
Whether the obscenity presented in this case is prohibited by the applicable state statute?
What was the outcome of Miller v. California?
In sum, the Supreme Court: (a) reaffirmed the Roth holding that obscene material is not protected by the First Amendment of the United States Constitution (Constitution), (b) held that such material can be regulated by the States, subject to specific safeguards, without a showing that the material is “utterly without redeeming social value and (c) held that obscenity is to be determined by applying “contemporary community standards.” As a result, the majority determined that the material at issue in this case was not protected by the First Amendment of the Constitution and that the California state statute could regulate the matter. Furthermore, the requirement that a California jury evaluate the materials with reference to “contemporary standards” is constitutionally adequate.
What is the Miller Test?
- The average person, applying contemporary, local, and community standards must find the work, taken as a whole, appeals to the prurient interest 2. The work lacks serious literary, artistic, political or scientific value 3. The work depicts in a patently offensive way sexual conduct specifically defined by state law “The three parts are considered separately, but one doesn’t outweigh the others.”
What is the Overbreadth Doctrine?
- A statute is unconstitutionally overbroad if it prohibits more speech than necessary to achieve a compelling government interest - Vagueness: too broad you can’t see the intent
What is the background behind Ashcroft v. ACLU?
Congress passed the Child Online Protection Act (COPA) to avert minors from having access to pornography on the internet. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The District Court agreed. On appeal, a Third Circuit Court of Appeals panel affirmed, the Court held that because the act used “community standards” to determine which material was harmful to minors, it would bar material that was offensive in the most “puritanical” communities from being displayed in more “tolerant” ones.
What was the issue behind Ashcroft v. ACLU?
Whether the Child Online Protection Act’s requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive?
What was the outcome of Ashcroft v. ACLU?
Whether the Child Online Protection Act’s requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive? Held: Yes. The Court held that Internet content providers and civil liberties groups were likely to prevail on the claim that COPA violated First Amendment by burdening adults’ access to some protected speech. Affirmed and remanded. Justice Anthony Kennedy, in the majority opinion, wrote that the district court’s injunction “was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute.” The majority also emphasized that barring the statute’s enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material. The Supreme Court ruled that the “community standards” provision alone did not make the act unconstitutional and sent the case back to the Third Circuit. Upon revision, the Third Circuit again prohibited implementation of the act, holding that it was likely to fail the “strict scrutiny” test due to the fact that it was not narrowly tailored – that is, it prevented online publishers from publishing some material that adults had a right to access – and because it did not use the least restrictive means possible to protect children (the court found that blocking software installed on home computers by parents would do as good a job without preventing free speech). For similar reasons, the panel found that the act was unconstitutionally “overbroad” – that is, it applied to too much protected material.
What is the background behind Ashcroft v. Freespeech Coalition?
The Congress enacted the CPPA in 1996 to prohibit the use of images which appear to show minors engaged in sexual acts but which were, however, produced without the use of real children. The possession or distribution of images so produced, whether by virtual technology methods or by using adults who look childish or are made to look so, was prohibited in specific conditions by this Act. This was challenged by the Free Speech Coalition (P), which is a trade union for the adult-entertainment industry, and other parties. They challenged the Act in federal district court on the grounds that the terms “appear to be” and “conveys the impression that” as used in the impugned statute are too vague and broad to prevent the Act from being improperlyused to prevent them from producing works under their constitutional rights guaranteed in the First Amendment. The district court granted summary judgment for the Government (D). The decision was reversed by the federal court of appeals, and the Government (D) appealed.
What is the issue behind Ashcroft v. Freespeech Coalition?
Does the Child Pornography Prevention Act (CPPA) of 1996 cut down freedom of speech, by preventing speech which is neither obscene nor child pornography, and does it so violate the constitution?
What was the outcome of Ashcroft v. Freespeech Coalition?
Virtual child pornography cannot be regulated based on tenuous enforcement assumptions Yes. The CPPA violates the right to free speech and is therefore unconstitutional, insofar as it holds speech which is neither obscene nor child pornography to be proscribed under law. When the child pornography does not show an actual child, the government’s interest in preventing harm to the children involved in the production of child pornography cannot be said to be served by the application of the Act. In such a case, the CPPA goes beyond the Supreme Court’s decision making a distinction between child pornography and other forms of sexually explicit speech. The Act reaches beyond obscenity to include all depictions of minors or even the appearance of minors engaged in what would appear to be sexual acts, from Hollywood film (filmed without the actual use of children) to Renaissance paintings, regardless of whether the production process used children to obtain the images. Similarly the Act cracks down on all such depictions irrespective of context, whether they are educational or not, as in a psychology manual or in a documentary movie meant to impress viewers with the negative impact of child abuse. The Court held the CPPA prohibitions to be too broad and violatory of the constitutional freedoms. The judgment was reversed.
What is the background behind Reno v. ACLU?
At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. The District Court made extensive findings of fact about the Internet and the CDA. It held that the statute abridges the “freedom of speech” protected by the First Amendment of the United States Constitution (Constitution).
What is the issue behind Reno v. ACLU?
Whether the two CDA statutory provisions at issue are constitutional?
What was the outcome of Reno v. ACLU?
Judgment of the District Court affirmed. Under the CDA, neither parents’ consent nor their participation would avoid application of the statute. The CDA fails to provide any definition of “indecent” and omits any requirement that the “patently offensive material” lack serious literary, artistic, political or scientific value. Further, the CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. CDA applies to the entire universe of the cyberspace. Thus, the CDA is a content-based blanket restriction on speech, as such, cannot be properly analyzed as a form of time, place and manner restriction. The CDA lacks the precision that the First Amendment of the Constitution requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the statute suppresses a large amount of speech that adults have a constitutional right to receive. The CDA places an unacceptable burden on protected speech, thus, the statute is invalid as unconstitutional. Concurrence. The constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the “display” provision and by the “indecency transmission” provision, the judge would invalidate the CDA only to that extent.
What was the outcome of US v Williams?
A prohibition against the advertising of child pornography is constitutional
What is the background behind US v. Stevens?
Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls, compiled and sold videotapes showing dogfights. Though he did not participate in the dogfights, he received a 37-month sentence under a 1999 federal law that banned trafficking in “depictions of animal cruelty.”
What is the outcome of US v. Stevens?
District Court proceedings[edit] Public Law No: 106-152 was a federal criminal statute that prohibited the knowing creation, sale, or possession of depictions of cruelty to animals with the intention of placing the depiction in interstate or foreign commerce for commercial gain. The law had been enacted in 1999, primarily to target “crush videos”, which depicted people crushing small animals to gratify a sexual fetish. It excluded from prosecution “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value;” this language tracked the “Miller test” the U.S. Supreme Court used to determine whether speech could be prosecuted for obscenity or was protected by the First Amendment. In 2004, Robert J. Stevens was indicted under 18 U.S.C. § 48 for creating and selling three video tapes, two of which depicted pit bulls engaged in dog fighting. The third tape depicted a pit bull attacking a domestic pig as part of the dog being trained to catch and kill wild hogs; this video included “a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig.”[2] Although Stevens’ criminal prosecution concerned only three tapes, he had made $20,000 in two and a half years from selling nearly 700 videos.[3] Stevens was not accused of engaging in animal cruelty himself, nor of shooting the original footage from which the videos were created. However, the footage in each of the videos “is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author.”[4] Stevens filed a motion to dismiss the indictment, arguing that the federal statute abridged his right to freedom of speech under the First Amendment. The District Court denied his motion in November 2004.[4] In January 2005, Stevens was convicted by a jury after a deliberation of 45 minutes.[5] Third Circuit decision[edit] Stevens appealed, and the Third Circuit vacated his conviction, holding that 18 U.S.C. 48 violated the First Amendment. The court stated that dog fighting, or the use of dogs to hunt hogs, may be made illegal to protect animals from cruelty. However the court ruled that the law in question, prohibiting the depiction of animal cruelty, violates the First Amendment, as it would create a new category of speech not protected by the free speech provision of the Amendment.[2]
What does the US Constitution say about Copyright?
Congress shall promote the progress of sciences and the arts “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”.” – U.S. Const., art. 1, sec. 8
What is a copyrightable work?
i. Is…any work “fixed in any tangible medium of expression…from which [it] can be perceived reproduced, or otherwise communicated.” ii. Including all printed materials, plays, music, sculptures, photographs, drawings, and graphics.
Where does copyright belong? What is an exception?
i. Belongs to the author for life plus 70 years ii. Unless the work is a work for gire, that is, (1) it is prepared by an employee in the scope of employment, or (2) it is specifically ordered or commissioned.
What is the Copyright Term Extension Act (1998)?
Since the Copyright Act of 1976,copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.[1] Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.
What is Eldred v. Ashcroft (2003)?
…
What are examples of copyrightable work
Including all printed materials, plays, music, sculptures, photographs, drawings, graphics.
The author of a work may:
- Authorize derivative or adoptive rights; 2. Distribute the work; 3. Perform the work; 4. Copy the work
What is Burden of Proof?
• That the plaintiff owned the copyright; • That the defendant copied the work
If there is no direct evidence, the plaintiff can prove the case by __________.
Circumstantial evidence, i.e.,
- That the defendant had access to the work;
- That there is substantial similarity between the two works in question
What is the Fair Use Defense?
- Is designed to reconcile society’s interest in encouraging creativity with the need to allow dissemination and discussion of work.
- A defendant has to prove this.
To determine when the Fair Use Defense applies, a court looks at what four factors?
- The purpose and character of the copy
- The nature of the original
- The amount and substantiality of the copying
- The effect on the marketability of the original
What are the questions asked to see the purpose and character of the copy?
○ Is the secondary uses commerical or for nonprofit or education purposes?
○ Does the secondary use serve the public interest by stimulating creativity
○ Is the secondary use transformative
- Campbell v. Acuff-Rose Music (1994)
Are parodies protected?
Yes
50 years after a work is published, the copyright owner must…..
Register the work and pay a small fee. The copyright owner would then have the full term of copyright. Otherwise the work would fall into the public domain.
When is a copy transformative?
If it creates a new or original work
Was the Cat Not in the Hat a parody?
No.
What happened in the Authors Guild v. Google, Inc?
- 2004, Google Books project announced 2. 2005, class action lawsuit filed 3. 2011, Judge Chin rejects settlement 4. Nov. 14, 2013, Judge Chin releases opinion on copyright infringement claim 5. The project is highly transformative; it makes snippets, rather than entire works available; it Google does not sell the snippets 6. The copyrighted works are books that remain available to the public 7. While the entire works are copied, only snippets are made available 8. A reasonable fact finder could only find
What was Lawrence Lessing’s solution to the issues of copyright?
i. 50 years after a work is published, the copyright owner must register the work and pay a small fee ii. the copyright owner would have then have the full term of the copyright iii. otherwise the work would fall into the public domain
What copyright issues involved JK Rowling?
…
What’s important about Mickey Mouse?
Mickey Mouse is more well known than Santa Claus
What happened with copyright and the growth of NFL?
i. Barnee Breeskin writes the team song in 1938 ii. In the 1950s, Breeskin sells the rights to the song to Clint Murchison iii. Murchison trades the rights back to George Preston Marshall iv. And the Dallas Cowboys are part of the NFL
How does War of the Worlds relate to copyright?
i. 1938, Orson Wells directing plays on Broadway ii. Weekly Radio Show called The Mercury Theater on The Air 1. War of the Worlds 2. Literature and put it onto radio plays a. Aliens invading radio show gets out of hand i. Took place in NJ and NY ii. People became frightened across the country iii. On October 30, 1938, broadcast by the Mercury Theater on the Air iv. Dispute between Howard Koch and Orson Welles v. Use of the transcript in scholarship
Was q. “The Ron Burgundy Distinguished Lecture Series” at Oklahoma State University a copyright violation?
…
How is advertising than other speech?
i. It can be regulated more than other kids of speech ii. Certain elements that distinguish advertising from other forms of speech
What are five characteristics of advertising?
i. It is persuasive ii. The speaker has a vested interest in your response to the message iii. It is bought and paid for before it reaches the consumer iv. The consumer helps pay for the message v. The interest of the source makes the message particularly “sturdy”
What are the three conditions of modern advertising?
i. Brand names ii. Improved transportation iii. Mass media
What happened in Va. State Pharmacy Bd v. Va Citizens Council (1976)?
i. Citizens Council wanted to post a price poster comparing name brand drugs with generic 1. VA had a law prohibiting advertising of prescription drugs a. Commercial speech is protected unless that commercial speech might be deceptive or misleading b. Speech is not automatically outside first amendment protection simply because it is advertising
What happened in f. Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York (1980)?
i. Advertising with fliers, encouraging people to buy stoves and heaters ii. NY had law saying you can’t advertise utilities iii. Supreme Court said it was commercial speech, it is protected under VA Pharmacy Board
What is the Central Hudson Test?
i. Determine whether a regulation on commercial speech is constitutional 1. Is the ad accurate and does it advertise a legal product? 2. Does the government assert a substantial interest? 3. Does the regulation directly advance that interest? 4. Is the regulation narrowly drawn? ii. Purely commercial advertising is not protected iii. Speech is not automatically outside First Amendment protection simply because it is advertising iv. Non-deceptive commercial speech is protected by the First Amendment
What happened in Nike v. Kasky?
i. Nike responds to criticisms of its treatment of workers in foreign plants ii. Attorney Mark Kasky sues Nike for unfair and deceptive practices iii. Calif. Court of Appeals says Nike’s response is a part of a debate on matters of public concern iv. The Calif. Supreme Court says a commercial speaker is talking to a commercial audience v. The Supreme Court says nothing… vi. …but will have to sooner or later. vii. Commercial speech is protected by the FA nut can me regulated more than other kinds of speech
What is the Federal Trade Commission (FTC)?
Established by Congress in 1914 to prohibit “unfair methods of competition in commerce”
- In 1934, a court case allowed the FTC to regulate________. 2. In 1938, the FTC Act amended to prohibit __________. _____________ became a crime. 3. 1975, the FTC Act was amended to allow __________.
- The unfair marketing of candy to children 2. Unfair methods of competition in commerce, and unfair of deceptive acts of practices in commerce.” False advertising of food, drugs, and cosmetics also became a crime 3. Regulation of local methods of competition, including advertising
The FTC may regulate advertising if it can show _____________ and ___________.
a. It is acting in the public interest b. An ad was deceptive
How can you decide if an ad is deceptive?
i. 4 part test of deception ii. 1- Is there a representation, omission or practice that is likely to mislead? 1. Mockups are not allowed a. Campbell’s Noodle Soup but marbles in the bottom of bowls iii. 2- The representation, omission or practice must be likely to mislead a reasonable consumer iv. 3- The representation, omission or practice must be material 1. Anacin isn’t “just like ordinary aspirin tablets. It contains the pain reliever most recommended by doctors plus an extra active ingredient not found in the leading buffered aspirin.” v. 4- The representation or omission must be likely to cause harm
What six things does the FTC remedy before the fact?
i. Staff opinion letters ii. Advisory opinions iii. Industry guides iv. Policy statements v. Trade Regulation Rules
What six things does the FTC remedy after the fact?
- Consent decrees 2. Cease and Desist orders 3. Injunctions 4. Civil penalties 5. Criminal penalties
What does the Supreme Court say about Commercial Speech?
Non-deceptive commercial speech is protected by the First Amendment.
Are mockups allowed?
No
What happened in Red Lion Broadcasting v. FCC (1969)?
i. An individual who had bought time on the station, was talking bad about a communist writer who wrote a biography of Goldwater ii. Writer said that under fairness doctrine, the station is required to give equal time
What happened in Miami Herald v. Tornillo (1974)?
i. Miami Herald ran an editorial endorsing Tornillo’s opponent ii. State law to require newspapers that endorsed candidates, provided for free space so that the opponent could reply iii. Miami Herald didn’t let Tornillo iv. Supreme Court fount Florida’s law unconstitutional
Why are broadcast’s regulated?
i. The airwaves belong to the public. ii. The “electromagnetic spectrum” is limited iii. The broadcast media are particularly powerful and pervasive, they can intrude upon us
What was the Wireless Ship Act (1910)? Was it government of non-government action?
(Government Action) 1. first regulation of broadcasting by Congress 2. radio was only broadcast in existence 3. beginning of july in 1911, every ship under US flag carrying 50 or more people, was required to have on the ship, radio communication equipment capable of transmitting and receiving messages over 100 miles
What was the Radio Act (1912)? Was it government of non-government action?
- previously 1,312 the Titanic sank, fewer than 100 miles away under US flag that had radio equipment, wireless ship act did not require a radio operator all day 2. loophole closed – required operator 24/7 3. anyone broadcasting had to have approval
What were three important acts in Broadcast Regulation history were non government action?
1922 – 1st National Radio Conference (Non Govt Action) 1923 - 2nd National Radio Conf (Non Govt Action) 1924 – 3rd National Radio Conf (Non Govt Action)
What was the Hoover v. Itnercity Radio case (1923)?Was it government of non-government action?
- a radio station could not be denied a spot based on limited space on the spectrum 2. Government action
What was US v. Zinth Radio (1926)?
- atty. Gen opinion message to congress, liens., moratorium 2. 4th National Radio Conf
What was the 1996 Telecommunication Act important?
- establishment of 5 member federal radio commission 2. Section 4: all stations operate as public convenience or necessity requires 3. Enforcement by interpretation
What did the FCC Establish with the 1996 Telecommunication Act?
FCC established a. The right of the public to service is superior to the right of the broadcaster b. Broadcasting is a medium of free speech c. Stations have a responsibility to provide time for discussion of controversial issues d. Licensees control over programming e. Stations must be responsive to the needs of communities f. Public service is important g. Diversity of ownership must be maintained
When was the Fairness Doctrine eliminated? But…..
1987, but broadcasters must still operate as “public convenience, interest & necessity”
When was the Personal Attack Rule eliminated?
2000
What is the Equal Opportunity Rule?
i. If a broadcast station allows one legally qualified for public office use of its facilities, it must allow all legally qualified candidates for the same office the same opportunity 1. Must be recognized as a legally qualified candidate by the national rules 2. Death Valley Days show with Ronald Reagan, they had to allow free time to opponent since technically it was still air time for Reagan 3. Candidates for federal office cannot be refused air time.
What happened in FCC v. Pacifica Foundation (1978)?
- It was important to the majority that broadcast occurred at 2 pm instead of late at night a. Did not deal with fleeting expotence, repetition of words that George Carlin said b. Pacifica considered to be a narrow ruling
What were the four FCC guidelines on determining whether material is indecent in 2001?
- The explicitness or graphic nature of the description 2. Whether the materials dwells on or repeats the descriptions 3. Whether the material appears to pander or is used to *** or shock 4. Indecent language is language that focuses on scatological or sexual matters
What are some famous indecency incidents?
iv. 2002 – Cher won an award 1. “I’ve also had critics for the last 40 years saying that I was on my way out. Right. So fuck ‘em” v. 2003 – Nicole Richie 1. “Why do they even call it “The simple life?” Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” 2003: Bono at the Golden Globes, “Really, really fucking brilliant.” 2004: a. CBS stations fined $550,000 because of the Janet Jackson/Justin Timberlake 2004 Super Bowl halftime show. 3. Television network does not broadcast, networks have a certain number of owned and operated that do in fact broadcast a. CBS doesn’t, the fine was based on number of TV stations multiplied by fine b. The third Circuit holds that the fine against CBS is arbitrary and capricious (CBS v. FCC, 2008).
What happened in FCC v. Fox Television?
vi. FCC v. Fox Television Stations is overturned because the FCC did not satisfy the administrative procedures act (2nd circuit 2008) vii. But the supreme court says the 2nd circuit was wrong, finding that APA was met (2009). viii. The supreme Court also vacates the CBS case, which was still before the 3rd circuit
What did Fox Television Stations v. FCC find?
i. The 2nd circuit finds the FCC’s indecency protocol unconstitutional (2011) h. The FCC’s rulings on indecency demonstrate an absence of clarity i. “If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so.” j. “We are bound by Supreme Court precedent, regardless of whether it reflects today’s realities.” That is it cannot be said today that broadcasting holds a uniquely pervasive presence in society
in FCC v. Fox TV Stations (II) (2012) which includes FCC v. ABC, what happened?
i. The FCC reduces its backlog of indecency complaints by 70% (more than 1 million complaints) ii. And it issues a public notice for comments on indecency policies iii. These policies remain intact for now
What is the criteria for licensure?
i. U.S. citizenship, no more than 20% of the company may be owned by foreign interest ii. Good character – defined by FCC as not convicted by felony nor record of lying to the FCC iii. Access to technical expertise iv. Financial security for three months without income v. An equal employment opportunity plan vi. A demonstrated awareness of community needs and interests vii. Market considerations viii. Before June 2, 2003 1. A licensee may control 1 tv station per market 2. A company can own tv stations reaching no more than 35% of tv households in each market 3. No cross-ownership of tv stations and newspapers is permitted 4. No cross-ownership of tv stations and radio stations is permitted
How does license renewal work? How long does it take for licenses get renewed?
i. First, FCC considers whether to renew ii. There must be a renewal under the Telecom Act of 1996, unless the FCC finds: 1. The station has not served the public interest, convenience, and necessity or 2. The station has had a serious violation of the Telecom Act or of the rules of the FCC or 3. The station has had other violations that would constitute a pattern of abuse Every 8 years.
What are some new communication technologies?
a. Cable television b. The Internet c. Cable Regulation
What is the history of Cable Regulation?
i. 1958 Frontier Bdestg Co. v. Collier – FCC denies authority to regulate cable ii. 1965 First must-carry rules – Distant signals limited and local signals required to be carried by cable services iii. 1968 United States v. Southwestern Cable Co. – The Supreme Court agrees w/ the FCC that it can regulate cable because of impact on local tv
What is the Cable Communications Policy Act (1984)?
i. Eased regulations on cable, making it easier for the industry to grow; required franchises to operate
What are the grounds non-renewal of cable
i. The cable operate didn’t comply with the terms of the franchise ii. The cable operator’s service or overall programming was inadequate iii. The cable operator does not have the financial, legal or technical ability to provide the services promised iv. The cable operator’s renewal proposal was not a reasonable attempt to meet the community’s needs and interests as established by the franchising authority
What did City of Los Angeles v. Preferred Comm (1986) do for cable operators?
Cable operators have 1st Amendment rights
What did the Cable TV Consumer Protection and Competition Act (1992) Do?
Regulated rates, gave competitors access to programming, regulated cable broadcast ownership and other issues
What is Cable Cross-Ownership?
i. The owner of a broadcast station cannot own a cable system ii. No network can own a cable system iii. A cable operator can’t own a multi-channel multi point distribution system iv. Phone companies cant own cable systems
What is media convergence?
“The Internet is the most powerful medium every created, because it can imitate all other media and they cannot imitate it.”
What does the Telecommunications Act of 1996 affect?
i. Telephone companies ii. Direct-to-home services Satellite tv iii. Wireless cable iv. Digital tv v. Interactive and other video services vi. Ownership and cross ownership rules vii. Broadcast license renewal
Why was Reno v. ACLU (1997) important?
i. Once sexually explicit material is posted, it’s available everywhere in the world ii. The internet is a “vast democartic fora.” iii. No intrusion, so FCC v. Pacifica doesn’t apply iv. Also distinguished 1. Ginsburg v. New York 2. Renton v. Playtime Theaters v. The CDA is a content-based regulation, so vagueness is important vi. O’Connor: CDA is unconstitutional, but Congress could create “adult zones” on the Internet
How has the Supreme Court interacted with New Communication Technologies (the Internet)
i. CDA 1996 indecent material restricted, Reno v. ACLU (1997): Unconstitutional ii. CPPA 1996 images of kiddie porn restricted, Ashcroft v. Free speech coalition (2002): Unconstitutional iii. COPA (1998) harmful material from commercial providers restricted, Ashcroft v. ACLU (2002), Unconstitutional, remanded. iv. CIPA 2002 public computers mut be filtered US v. American Library Association (2003), constitutional v. COPA 2004, harmful material for commercial providers restricted Ashcroft v. ACLU II (2004), law likely unconstitutional; remanded for more info on filtering software vi. PROTECT 2003, advertising of kiddie porn is illegal, US v. Williams (2008), constitutional
