| Term | Definition |
|---|
| Law | Any social norm or any organized or ritualized method of settling disputes and a system of sanctions |
| Sanctions | Guidelines |
| Social engineering | The attempt to order the way people behave |
| Sources of American Law | Constitution, common law, law of equity, statutory law, executive orders |
| Executive orders made by | President, governors, mayors, Administrative bodies and agencies |
| Common law | Developed in England, Considered "discovered law" |
| Discovered law | Evolves over time |
| Precedent | Look to prior cases with similar facts and circumstances |
| Courts can accept | Prior cases should control the current case |
| Courts can modify or change | Circumstances in society have changed to the point where the prior case has no applicability |
| Courts can distinguish | Prior cases and this one are factually different therefore the prior cases have no applicability |
| Courts can overrule | Prior case was bad law-we shouldn't let it continue |
| Binding precedent | Hierarchy of courts |
| Non-binding precedent | Circuit to circuit, State to state |
| Hunch theory | Develop answer, go look for support |
| Equity | Provides relief for grievances where the law does not provide a remedy |
| Types of equity | Restraining order, Injunction |
| Criteria for equity case | Never tried before a jury, Judicial degrees, not yes or no, No money damages, No way to fix harm if harm occurs |
| Statutory law | Passed by legislative body, Deal with problems affecting society, Anticipate problems and provide fixes, ALL criminal laws, Collected in codes |
| Statutory construction | Judges rule on exact meaning on words, Determine what legislators meant |
| Purpose of Constitution | Provide plan for establishment and organization of government, Outline duties, responsibilities and powers, Guarantee certain basic rights |
| State constitutions can be changed | By direct vote of the people |
| Amending Constitution | Must pass by 2/3 of House and Senate OR 2/3 state legislatures in special convention THEN ¾ state legislatures or constitutional conventions |
| Times changed | 14 times in 200 years |
| Power of Constitution | Always trumps |
| Reasons for unconstitutional laws | Vagueness, Overbreadth |
| Vagueness | Be specific so a normal person could understand the punishment for an action |
| Overbreadth | Overkill, Includes a lot of other 'evils' while prohibiting one specific one |
| Limited Review | If original act is unconstitutional, If commission exceeds authority, If own rules are violated, If no evidences supports ruling |
| Trial Courts | Fact finding, Hears testimony, Considers facts and law, Jury possible |
| Appellate Court | Law reviewing, Based on testimony, Considers ONLY law and errors of law, No new testimonies, 3-9 judges |
| Official title of head of Supreme Court | Chief Justice of the United States |
| Writ of Certiorari | Discretionary order issued by the court when it feels an important legal question has been raised |
| Writ of Certiorari only issued | No other legal remedies exist, Four justices think petition has merit |
| In Supreme Court case | Arguments are submitted before, Oral arguments held, Judges question lawyers |
| Deciding a case | Secret deliberations, Court issue opinion (majority) |
| If justice agrees with decision but disagrees on reasoning | Issues concurring opinion |
| If justice disagrees | Issues dissenting opinion |
| Per Curiam | Unsigned opinion drafted by member of majority and published as court opinion |
| Memorandum order | Announces vote without giving opinion or cites earlier decision as reason |
| Nonjusticiable matter | Inappropriate for court to hear |
| Federal judges | Appointed by president, confirmed by senate FOR LIFE |
| Commonwealth court | Political subdivision of commonwealth like agency, borough, city |
| Common pleas courts | Each county, Criminal/civil/orphan court matters |
| Magisterial District Judges | Summary traffic offenses/all criminal cases |
| Common pleas courts | Can review cases de novo |
| De novo | As if lower court never heard case |
| Judicial Review | Right of any court to declare any law/official government action invalid because it violates Constitution |
| Civil complaint | Document used to start a lawsuit filed with court clerk, Served by sheriff or prothonotary |
| Results of case | Settle, Motion to dismiss, Go to trial then appeal |
| Criminal trial | Commonwealth of PA brings charges |
| Seditious libel laws | Punished citizens who criticized government regardless of truth of claim |
| Licensing/prior restraint | Required printers to obtain prior approval from government or church before printing |
| Bonds | Money deposited with government that would be forfeited if government felt material should not be printed |
| Licensing lasted until | 1720s |
| John Peter Zenger | Clearly guilty under seditious libel laws, Jury acquitted, DID NOT SET PRECENDENT |
| Jury nullification | Power to ignore a law and return a verdict according to conscience, Rare |
| Community censorship | Unpopular viewpoints silenced by crowd |
| Heckler's veto | When a crowd's reaction to a speech is allowed to control and silent that speech |
| Original intent | Meaning intended by framers of Constitution, Put the law in context |
| Today freedom of expression protects | Public's right to know, society's right to be informed |
| Absolutist theory | Absolute protection against censorship, Majority has never adopted |
| Ad hoc balancing theory | Courts must balance freedoms of free speech and press, Determined on case by case basis |
| Chilling effect | Caused by ad hoc balancing theory, Citizens cannot predict what will be censored and decide to stay quiet |
| Preferred position balancing theory | Speech and press given greater weight, Used most often today |
| Meiklejohnian theory | Hierarchical approach |
| Public speech | Advances self-governance, Should always be protected |
| Private speech | Addresses anything but self-governance, Should not be protected |
| Marketplace of ideas | Truth will be discovered through completely uninhibited speech |
| Access theory | Everyone should have access to print/airwaves, if not government should force them to, Infringes on freedom to press to allow freedom of speech, STRUCK DOWN by Supreme Court |
| Self-realization/self-fulfillment theory | Ability to express personal thoughts to create identity, Not enough caveats or specifics |
| 1791 | Adoption of First Amendment |
| 1917 | Espionage Act |
| 1918 | Sedition Act |
| Alien and Sedition Acts of 1798 | Gave government more time to deport aliens, Forbade seditious libel against US government, Aimed at silencing Jeffersonian newspapers |
| Espionage Act of 1917 | Crime to convey false report to disrupt war effort, Cause insubordination, disloyalty, mutiny or refusal of duty, Willfully obstruct recruiting or enlistment |
| Sedition Act of 1918 | Crime to cause contempt of or scorn for the federal government, Constitution, flag or armed services uniform |
| Criminal syndicalism | Forbid display of red and black flag |
| Smith Act | Crime to advocate violent overthrow of gov't, Organize group that wanted to do so, Be a member of such a group |
| Schenck | Must be a clear and present danger |
| Whitney | Counter speech is better than censorship |
| Dennis | Clear and probable danger |
| Brandenburg v. Ohio | Set clear and present danger test |
| Clear and Present Danger Test | Advocacy must be directed to inciting or producing imminent lawless action and is likely to incite or produce such actions |
| Strict scrutiny | Used to justify regulations based on contents |
| In such a case, state must prove | Compelling interest to regulate content, No more speech than necessary is regulated |
| Gitlow v. New York | Established incorporation doctrine |
| Incorporation doctrine | Free speech and free press incorporated through 14th amendment to apply to all levels of government |
| Near v. Minnesota | Paper declared public nuisance, forbidden to publish any papers means prior restraint, UNCONSTITUTIONAL |
| Austin v. Keefe | Developer blocked all pamphlets by group, Supreme Court said all speech was suppressed, UNCONSTITUIONAL |
| Pentagon Papers | Newspapers could publish sensitive info, U.S. failed to present clear and convincing evidence |
| U.S. v. Progressive | Magazine wanted to publish how to make hydrogen bomb, Before end of case, a newspaper did so making the case irrelevant |
| U.S. v. Bell | Bell blocked from promoting/selling unlawful tax advice on Web site, False speech not included in freedom |
| Modes of censorship during wartime | Denial of access to locations, Denial of access to documents/photographs, Punishment for publishing national security info, Self-censorship by media |
| Embedding | Used in Iraq war, Members of press were allowed to accompany military units |
| Flynt v. Rumsfeld | Embedding is privilege, not right |
| M.K.B. v. Warden | Certain cases can be conducted in total secrecy |
| State secrets privilege | Allows government to block lawsuit if information disclosed would adversely affect national security |
| Government refuses to release info that | Could jeopardize national security, Was compiled for law enforcement purposes |
| Classified information procedure act | Federal act that details procedures for courts to consider when government argues classified information could be publicly disclosed using a criminal procedure that might jeopardize national security |
| Secret dockets | Cases removed from public docket, Sometimes names replaced with sealed v. sealed |
| Tinker v. Des Moines | Students could not be suspended for wearing black armbands to protest Vietnam war |
| Barber v. Dearborn Public Schools | Student allowed to wear T-shirt calling Bush an international terrorist, Used Tinker as precedent |
| Hazelwood School District v. Kuhlmeier | Allowed to censor high school newspaper if part of a journalism class |
| Schools allowed to censor if | Stories encourage people to break rules, Interferes with rights of students, Fails to meet standards of academic propriety, Generates health and welfare concerns, Are obscene, indecent or vulgar |
| Dean v. Utica Community Schools | Set precedent for viewpoint-based discrimination |
| Kincaid v. Gibson | School can't ban yearbook because yearbook is designated public forum |
| Hosty v. Carter | College newspapers at public schools are subject to censorship regulations |
| Pitt News v. Pappert | Pitt allowed to use advertisements involving beer on campus – private university |
| Intermediate scrutiny | Laws must be content neutral in application and face value, Must not completely ban something, Must be justified by a substantial state interest, Must be narrowly tailored |
| Strict scrutiny | Requires government to prove a compelling interest and that the statute restricts no more speech than absolutely necessary to serve interest |
| Traditional public forums | Places long devoted to public speech, Street corners, public parks, Most first amendment protection here |
| Designated public forums | Places created by government for expressive activities, City-owned auditorium, fairgrounds |
| Public property does not mean | public forum |
| For someplace to be a public forum, it must be intended. What makes intent? | Explicit expressions of intent, Actual policy/history of practice in using property, Natural compatibility of property with expressive activity |
| Private property | College campus, Places not owned by government, No First Amendments guarantees here |
| Son of Sam Laws | Criminals cannot profit from crimes |
| Simon and Schuster, Inc. v. New York Crime Victims Board | Son of Sam laws must be narrowly tailored in order to remain constitutional |
| Chaplinsky v. New Hampshire | "fighting words" doctrine arose |
| Fighting words | Just by saying words to a person's face may cause a breach of peace |
| Net Neutrality | Internet providers treat all traffic and content similarly and not charge more money for or blocking access to faster services |
| Defamation (libel) | Publication or broadcast of any statement that Injures someone's reputation OR Lowers that person's esteem in community |
| Libel and how common | Most common problem for media |
| Why do people file? | To silence critics |
| SLAPP suits | Used to tie up courts and silence critics |
| To win a libel suit | Prove: Libel was published, Words were of and concerning the plaintiff, Material is defamatory, Material is false, Defendant was at fault |
| Publication | Material seen by writer, person defamed, and one more person |
| Presumed publication | Material appearing in mass media outlet is published |
| Republication rule | Every republication of a libel is a new libel |
| Do not attribute | Libel to third party |
| Online: Comcast and CNN | Comcast not guilty |
| Online: Comcast and original content | Comcast guilty |
| Identification | Statement concerns plaintiff, Can be very easily identified |
| Group identification and libel | Statements about large groups cannot be used as a libel suit for one member |
| Libel per se | Words that are libelous on their face |
| Libel per quod | Words that are innocent on their face and only become defamatory when other facts are known |
| Single mistake rule | Stories must suggest pattern of mistakes to be libelous |
| To prove trade libel, plaintiff must show | Statements about product are false, Specific monetary loss because of statements, Comments motivated by ill will or actual malice |
| Falsity | Needs to be proven by private-person plaintiffs, Proven truth leaves different impression of plaintiff in minds of the jury than the libel |
| Falsity in court | "Sting" of libel must be false, Minor errors not falsity |
| New York Times v. Sullivan | Created "actual malice" precedent |
| Public figures | Must prove actual malice |
| Actual malice | Proof of knowledge of falsity AND reckless disregard for the truth |
| Who is a public official? | Anyone elected, Anyone appointed or hired MAY qualify |
| All-purpose public figures | Have pervasive power and influence at all times |
| Limited-purpose public figures | Controversy must exist before publication, Plaintiff participated voluntarily, Plaintiff must be seeking to influence opinions |
| Public figures over time | Person will always be a public figure but only in relation to original issue |
| Private persons | Anyone who doesn't meet the requirements of public figures or public officials |
| Private persons must prove | Negligence, "Failure to exercise reasonable care" |
| Knowledge of falsity | Defendant lied, Plaintiff can prove |
| Reckless disregard for truth | High degree of awareness of the falsity, Sufficient evidence defendant had serious doubts as to truth of material |
| Jury must consider | How much time to investigate, Was source reliable and trustworthy, Was story probable |
| To intentionally inflict emotional distress, must prove | Defendant's conduct was intentional/reckless, Conduct was extreme and outrageous, Conduct caused emotional distress, Emotional distress was severe |
| Reasonable care | What would a reasonable person do? |
| Summary judgment | Judgment granted to a party when pleadings disclose no material issue of fact between parties, ALL facts must be agreed upon |
| Defendant may argue for summary judgment when | Plaintiff can't prove what was necessary to sustain libel suit (5 criteria), Legal defense blocks suit (truth) |
| Statute of Limitations | Law that requires legal action to be taken within a specific period of time |
| For libel, statute of limitations begins when | Material is published/broadcast for first time, Magazines are distributed to substantial portion of audience NOT date printed on publication |
| Jurisdiction | Libel suit can be brought in any state in which the libel has been circulated regularly |
| Venue shopping | Choose a state that has laws favorable to your legal action |
| Internet and Jurisdiction | Based where message content was aimed, Where harm was caused, Where message was downloaded |
| Absolute privilege | Immunity from libel suits granted to government officials and others based on remarks uttered or written as part of official duties |
| Qualified privilege | Media protected if material comes directly report of a privileged proceeding/document, Fair and accurate summary, Part of official portion of proceedings |
| Who must prove qualified privilege? | Defendant |
| Neutral reportage | Must be newsworthy (public controversy), Made by responsible and prominent source, Reported accurately and neutrally, About public official/figure |
| Rhetorical hyperbole | Must ensure average reader/listener will understand it's hyperbole |
| Milkovich | Pure opinion is incapable of being proven true or false |
| Ollman test | Can statement be proved true or false? What is common/ordinary meaning of words? What is the journalistic context of remark? What is social context of remark? |
| Fair Comment | Common law defense, In legal limbo |
| Fair Comment test | Is it an opinion? Is it a subject of legitimate public concern? Is there a factual basis for comment? |
| Defenses: Consent | A person can't sue for libel if they agreed to publication of libelous material |
| Indirect/implied consent | Person is aware of interview, Only accepted by a handful of courts |
| Right of reply | Person who has been libeled can libel the other person, Reply must be equal in magnitude and effect, Not accepted by many courts |
| Actual damages | Damages to actual injuries, To reputations, monetary loss, mental suffering, Must be proven |
| Special damages | Specific items of monetary loss, Most common in trade libel, Can only sue for as much as was lost, no more |
| Treble damages | Take money lost, multiply by three |
| Presumed damages | Damages a plaintiff can receive without proof of injury or harm |
| Punitive damages | Punish defendant for misconduct and warn other not to act in a similar manner, Often very large amounts of money |
| Retractions | Statement published to correct previously published material, Media must be given opportunity to retract statement before lawsuit can begin |
| Criminal libel | State can sue for libel on behalf of party |
| Criminal libel vs. civil libel | May criminal libel the dead, May be charged with criminal libel for breach of peace |
| Garrison v. Louisana | Blow against criminal libel, State has to prove actual malice if case involves public official |
| Right to privacy decreasing because | Growth of government, Growth of mass media, Technological innovations |
| Privacy laws appear because | Movement from rural to urban society, Yellow journalism |
| Appropriation | It is illegal to appropriate someone's name or likeness for commercial or trade purposes without consent |
| Rights involved with appropriation | Right to privacy, Right of publicity |
| Right to privacy | Protects person from embarrassment and shame, Personal right, Protects from EMOTIONAL harm |
| Right of publicity | Protects person from exploitation, Property right, Protects from ECONOMIC harm |
| Names | Nicknames, stage names, pen names |
| Likeness | Photographs, paintings, sketches, cartoons, Fictional characters, Look alikes, Sound alikes |
| Can't sue for appropriation | When name is used in news story |
| News (define) | Anything that is not an explicit advertisement |
| Booth Rule | Use of person's name or likeness in an advertisement for a media product is usually not regard as appropriation if name/likeness has been or will be part of the content |
| Written consent as defense | Generally uncontestable |
| Oral consent as defense | Easily contestable |
| When consent might not work | May not be valid in distant future, Minors, wards of state, prisoners, mentally ill, If image is altered, changed |
| Right to privacy and death | Personal right that dies with person |
| After person dies | Right belongs to heirs (California) |
| Intrusion | It is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual, Can occur without trespass |
| Trespass | Intentional and unauthorized entry onto land or property occupied or possessed by another |
| Intrusion and press | Courts will ask whether the plaintiff "enjoyed a reasonable expectation of privacy" when information was collected |
| Privacy and public | No expectation of privacy in public |
| Journalists and information obtained illegally | Journalists not responsible for information given to them that was obtained illegally |
| Journalists and information they obtained illegally | Journalist responsible |
| Assumption of Risk Analysis | There is no expectation of privacy when information is voluntarily made accessible to another person or placed in the flow of commerce |
| Electronic Communications Privacy Act | Illegal to intentionally intercept cell phone call, Can't make/sell cell phone call scanners, No intentional interception of e-mails |
| Drivers License Protection Act | State departments of motor vehicles can't disclose personal information about individuals |
| Children's online privacy protection act | FTC can regulate Internet sites that collect information from users under 13 |
| Illegal to publicize private information if matter | Has publicity, Would be highly offensive to reasonable person, Is not of legitimate concern |
| Publicity | Communication of information to a large number of people |
| Publication | Communication of information to single third party |
| Information not private if | Activity happens in public, Lots of people aware of information, Information contained in public records |
| Determine offensive material | Is material offensive to reasonable person? Is published material of legitimate public interest or concern? |
| Determine legitimate public concern | How much public interest is in the material? How much intrusion is there? Is person public or private figure? Connection between private/public life? |
| False light | Would be offensive to reasonable person AND publisher of material was at fault, No harm to reputation |
| Fictionalization | Purposeful distortion of truth for dramatic purposes |
| Time v. Hill | Plaintiffs must prove fault in false light cases |
Combine with other sets
Share on Facebook
Share on MySpace