Media Law Test 1

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Media Law Chapters 1-5 from Law for Advertising, Broadcasting, Journalism, and Public Relations, 3rd series.

Three Types of Government

Unitary, Confederal, and Federal

Unitary Government

a centralized government in which all government powers belong to a single central agency

Confederal Government

A political system where independant states form a nation but retain power under a weak central government.

Federal Government

A system in which power is shared among state and national authorities

Power

The ability to cause others to do something.

Authority

The ability to compel obediance because of legitimate position given by power.

Sovereignty

Source of power in government; 3 sovereign powers in U.S.

The U.S. Constitution

The basic form of law of the United States. describes how the national government should be set up. describes the relationship between the national gov. and the states and individual rights.

Articles 1-3

Which three articles describe the legislative, executive, and judicial branches respectively and how the members of the three branches of the federal government are chhosen.

Supremacy Clause

The constitutional provision that makes the Constitution and federal laws superior to all conflicting state and local laws.

Code Law

A written set of laws that apply to everyone under a government; judges may only follow the law as written, interpreting it as little as necessary to fit the case; past decisions are irrelevant, as each judge must look only to the existing law; in contrast to common law.

Common Law

A system of jurisprudence based on judicial precedents rather than statutory laws.

Precedent

An example that is used to justify similar occurrences at a later time.

Stare Decisis

The idea that past results will guide future actions

4 Sources of Laws

Include:
•Federal & State Constitutions
•Federal & State Statues - written law by legislation
•U.S. (federal) treaties
•Case Law (common)

Statutory Interpretation

The judicial act of interpreting and applying the laws of Congress and the states rather than the Constitution, to particular cases.

Equity

A system of remedies. e.g. temporary restraining order, temporary injunction, permanent injunction, mandamus, habeas corpus, order of protection, peace bond, specific performance.

Federal Court System

1) U.S. district courts (trial courts of general jurisdictions) and various courts of limited jurisdictions, 2) U.S. courts of appeals (intermediate courts of appeals), and 3) the United States Supreme Court

Three Types of State Court Systems

Fragmented, Consolidated, and Unified.

Fragmented Court System

Multiple levels within each tier possible
•Minor courts
municipal courts, small claims
•Limited jurisdiction
Magistrates sometimes have no formal legal training
•County courts (next level up)
Similarly limited jurisdiction, but can often hear appeals de novo (with no written record)
•State District or Circuit courts (next, upper level of lowest tier)
Hear civil and criminal cases
Usually free to rule with unlimited penalties

Consolidated Court System

3-tiered like federal system:
•Courts of original jurisdiction (circuit courts)
•Courts of intermediate jurisdiction (courts of appeals)
•Some sort of State Supreme Court

Unified Court System

When appellate courts at all levels attempt to "speak with one voice" creating precedential value at appellate level. Once an intermediate appellate court delivers an opinion all other courts must treat the opinion as mandatory precedent.

Venue

Specific place, court, or judge hearing the case

Jurisdiction

The scope of power granted to a court or other governmental entity(power or authority to decide a case).

Geographic Jurisdiction

Based on where the parties reside and where the legal dispute took place.

Subject Matter Jurisdiction

General (any type, civil, or criminal) or Special/Limited(only created by constitution or law, i.e. bankruptcy, tax court)

Personal Jurisdiction

Parties must have some legal connection to the geographic territory served by the specific court set to hear the case. e.g. act committed there, or agreement to jurisdiction by contract.

Federal Court Jurisdiction

•Case must deal with the U.S. constitution, a U.S. treaty, or a federal statute.
•Case must involve a federal government party.
•Parties must be from 2 or more states and/or countries and, the amount in controversy must exceed $75,000.

Diversity (of citizenship)

Parties must be from 2 or more states and/or countries and the amount in controversy must exceed $75,000

Original Jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.

Discretionary Appellate Jurisdiction

Court is begun with the writ of certiorari : document asking the court to see the case. Judges may pick and choose which cases are to be reviewed. Appellate courts have panels of judges, decisions en banc, require all judges.

Appellate Jurisdiction

The jurisdiction of courts that hear cases brought to them on appeal from lower courts. These courts do not review the factual record, only the legal issues involved.

Concurrent Jurisdiction

The authority to hear cases is shared by federal and state courts.

Legal Authority

Authority based on explicit rules, regulations, and procedures that define who holds power and how power is to be exercised and distributed.

Primary Authority

Law being cited comes from one or more of 4 sources of law.

Mandatory Authority

Lower court must follow precedent.

Persuasive Authority

Any legal authority or source of law that a court may look to for guidance but on which it need not rely in making its decision. Includes cases from other jurisdictions and secondary sources of law.

Secondary Authority

Source being cited has persuasive value only and comes from outside the 4 sources of law; e.g. Law Review.

Possible Legal Decisions

Uphold, Affirm; Modify, Remand - send back, Reverse; Vacate.

Seriatim Opinion

Each justice on the Court writes his or her own, separate opinion; there is no majority opinion, only a majority verdict. This type of opinion was more common in the 18th, and parts of the 19th, centuries.

Single "Opinion of the Court"

One justice writes the opinion of the court, other justices agree. Court has more credibility and power as it "speaks with one voice." Minimizes potential for misunderstanding of Court's decision and reasoning.

Majority Opinion

At least 5 of 9 Justices agree on judgment and reasoning. One agreeing Justice assigned to write the Opinion of the Court

Dissenting Opinion

An opinion that disagrees with the court's disposition of the case.

Plurality Opinion

Decision of a court when a majority agrees with the decision but not with the reasoning.

Concurring Opinion

The Justice who writes this agrees with the judgment, but usually disagrees strongly as to a point of law, the interpretation of the law, or the reasoning of the plurality opinion

Six Rules of Justiciability

Case and Controversy, Mootness, Ripeness, Standing, Political Questions, and the Abstention Doctrine

Case and Controversy

No case can be based on hypotheticals. No "advisory opinions" allowed. e.g. not like FCC.

Mootness

A criterion used by courts to screen cases that no longer require resolution, e.g. death.

Ripeness

Cannot bring a case for something that might happen. Must wait until the controversy actually occurs.

Standing

Any of the named parties has not been harmed or does not have a personal stake in the case's outcome.

Political Questions

•Textual commitment:
Issue has been assigned by law to another branch of government
•Lack of judicial standards:
No existing rule to guide the Court's decision
•Judicial imprudence:
A political "hot potato" that the Court would rather avoid at the moment

Gitlow v. New York

Supreme Court case established selective incorporation of the Bill of rights; states cannot deny freedom of speech; protected through the 14th amendment. First time freedom of speech is recognized as a fundamental liberty.

Near v. Minnesota

Supreme Court case that said Prior Restraint is in violation of the First Amendment. Also said that First Amendment can strike down any state law because of the fourteenth amendment.

Marbury v. Madison

Supreme Court case establishes the Supreme Court's power of Judicial Review.

Schenck v. U.S.

Supreme Court case that established the precedent that free speech could be suspended in times of clear and present danger. Established the "Clear and Present Danger" test.

Brandenburg v. Ohio

Supreme Court case established that law must distinguish between the advocacy of ideas and the incitement to commit unlawful conduct. Updated "Clear and Present Danger" test to become the "Incitement" test.

N.Y. Times v. U.S. (Pentagon Papers)

Supreme Court case which reinforced prior restraint and freedom of the press.

The Sedition Act of 1798

Made it unlawful to publish false, scandalous, and malicious info about public officials unless proven.

Patriot Act of 2001

9/11. Reduced standard of probable cause. Now government can track people who they think are a national threat.

Categories of Laws

Substantive law and procedural law

Substantive Law

Principles for acceptable behavior. A body of specific rules that declare what conduct is criminal and prescribe the punishment to be imposed for such conduct.

Procedural Law

Defined legal rules or methods for processing civil and criminal cases through the court system

Criminal Law

Laws that define crimes against the public order. Prosecuted in the name of the sovereign v. the accused.

Civil Law

Body of law dealing with private rights of individuals. Evolved through both common law and statutes.

Juvenile Law

Laws created for people under the age of 18 who have committed a crime or who are victims of abuse or neglect.

Four Categories of Crime

Felony, Misdemeanor, Petty offenses, and Juvenile offenses.

Federal Offenses (Felony)

Carry heavy ($2k+) fines and significant incarceration.

Misdemeanor Offenses

Less offensive ($1k or less) 1 year in jail.

Petty Offenses

Minimal crimes, fines only less than $500. e.g. Traffic violations.

Juvenile Offenses

Offenses that are usually dealt with by rehabilitation. Dealt separately from adults.

Three Ways to be Charged with a Crime

Warrantless arrest, grand jury indictment, and prosecutor's information or complaint.

Grand Jury

A group that hears charges against a suspect and decides whether there is sufficient evidence to bring the person to trial.

Bill of Indictment

A formal document written for a prosecuting attorney charging a person with some offense.

Prosecutor's Information or Complaint

A prosecutor can initiate a criminal charge with a document called _________.

First Appearance

First formal hearing of a criminal case; accused is given written copy of charges; legal representation is determined; and, if incarcerated, a second appearance happens quickly and a bond hearing is held to determine fight or flight risk.

Arraignment

First reading of grand jury indictment or prosecutor's complaint. Accused is read rights in relation to trial and must enter plea. e.g. Not guilty, nolo contendre - no contest, guilty.

Plea Negotiations

Between prosecutor and accused a bargain can be met to admit to specific set of facts of a case and the prosecutor recommends a specific sentence, must be approved by judge.

Due Process Protections

U.S. Constitution minimum rights one has when accused of a crime:
•Right to a speedy and public trial
•Right to an impartial jury
•Right to challenge warrants and keep evidence out
•Right to subpoena defense witnesses

Rights of Victims

Criminal victims are not parties to criminal proceedings, but merely witnesses for the sovereign.

Rights of the Accused

The accused are innocent until proven guilty, just like all other citizens, including victims.

Discovery

Both sides must exchange all information gathered in the case.

Affirmative Defenses

Notice is required, and if accused decides to use one the burden of proof falls on defense. If upheld by court, conviction is barred.
•Infancy
•Involuntary Intoxication
•Insanity/Mental incapacity
•Illness
•Justifiable use of force/Self-Defense

Mens Rea

The required state of mind for conviction, criminal intent.

Bench Trial

A trial in which a judge serves without a jury and rules on the law as well as the facts.

Statutes of Limitations

The law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost.

Petit Juries

A jury consisting of six to 12 members who determine guilt or innocence in both criminal and civil trials.

Acquittal

A judgment of not guilty.

Voir Dire

The preliminary questions that the trial attorneys ask prospective jurors to determine whether they are biased or have any connection with the defendant or a witness.

Preemptory Challenges

Limited motions by the parties to disqualify a prospective juror without showing cause.

Direct Examination

The first questioning of a witness in court by the attorney for the party who called the witness to testify.

Cross Examination

Questioning of a witness during a trial or during the taking of a deposition, by the party opposed to the one who produced the witness.

Motion for Directed Verdict

In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support her or his claim.

Prima Facie Case

A case established by evidence sufficient enough to establish the fact in question unless it is rebutted.

Jury Instructions

Set of guidelines given to a jury regarding their duties, rules of deliberation, and statements of law.

Mistrial

An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

Judgement Non Obstante Verdicto (J.N.O.V. - "Judgement Not Withstanding Verdict")

A request asking the judge to grant a judgement contrary to the jury's verdict.

Sentencing Hearing

A hearing held in front of a judge or a jury, defendant's choice. In capital cases same jury that convicted must determine defendant's sentence.

Mittimus

The order that describes the full dates of the sentence; required for a defendant to enter a correctional facility

Posttrial Motions

Motion to vacate, reconsider, or retrial or J.N.O.V.

Juvenile Procedure

Procedure designed for rehabilitation of minors.

Juvenile Delinquency Laws

Laws set in place for criminal offenses committed by minors, usually heard by judge only. If found guilty, judge orders an investigation to determine minor's family and social situation; focuses on best interest of child and treatment or care options
End result is called a disposition (not sentence)
Usually the trial is called an adjudication.

Preponderance of the Evidence

The standard of proof that must be established to win a civil case. The standard is met when a party's evidence indicates that it's more likely than not that the fact is as the party alleges it to be.

Petition (Complaint)

A written request initiating a civil suit. Plaintiff - the individual who initiates a civil action.

Pleadings

Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.

Appellate Procedure

The time to file an appeal in a felony case is sixty (60) days from the appealable order or judgment you seek to appeal from. Must raise specific issues on appeal: Those issues must have been preserved on the record with timely objections to evidence, jury, and to the law applied.

Cross-Appeal

An appeal filed by the appellee from the same judgment, or some portion of the same judgment, as the appellant has appealed from; generally made a part of the review proceedings set in motion by the original appeal.

Interlocutory Appeal

An appeal to a higher court made during the progress of a case requesting temporary relief rather than a final judgment.

Double Jeopardy

The act of trying an individual a second time after he has been acquitted on the same charges. Prosecution cannot appeal acquittal.

Judicial Standards of Review

Totality of the Circumstances: Mistakes made by lower court judge so significant that they contributed to an incorrect and therefore unjust judgment, may result from a single mistake or the cumulative effect of several errors
Clear & Convincing Evidence: Lower court made an obvious mistake that affected the outcome of the case: Against the Manifest Weight of the Evidence
Mistakes made by trier of fact: deference given to trier of fact only overcome when he has made a decision that is clearly not supported by the record, usually reversed and remanded.

Bill of Rights

A statement of fundamental rights and privileges (especially the first ten amendments to the United States Constitution). Is a misnomer because they describe freedoms and liberties, but not rights.

Freedoms

Inherent by virtue of U.S. citizenship and both federal and state governments must do nothing that violates such freedoms as are expressed in the Bill of Rights.

Rights

Freedoms that are protected by a government's laws; require federal and state government action to protect.

Civil Rights

Policies designed to protect people against arbitrary or discriminatory treatment by government officials or individuals; require federal and state government action to protect.

Process of Absorption (Incorporation)

The process by which the supreme court recognizes a specific freedom as fundamental and therefore given constitutional protection from state government intrusion.

Case-by-Case Fairness

Developed by supreme court shortly after 14th amendment to help distinguish liberties without which one could not be fairly said to have received due process by law; totally subjective.

Selective Incorporation

States are obligated to grant only the rights and liberties included in the Bill of Rights that are fundamental principles of liberty.

Selective Incorporation "Plus"

Favors freedoms seen as "fundamental" but also includes rights and liberties not actually mentioned in the constitution or Bill of Rights.

Total Incorporation

Any right or liberty mentioned in the bill of rights states required to here.

Total Incorporation "Plus"

Adds that as society changes, any additional rights or liberties imposed on the federal government are also applied to the states, even if those rights or liberties were not mentioned in the Constitution or Bill of Rights.

First Amendment Philosophies

Philosophies can be divided into categories based on the extent to which their proponents believe individuals have absolute rights or only relative rights that must conform to the needs of society.

Absolutist Philosophy

Advocate for absolute rights under the first amendment.

Social Conformist Philosophy

Believe rights under the first amendment are relative and must conform to the needs of the society. Generally, the Supreme Court cases interpreting freedom of speech have held that individual rights of speech must give way to social values of the time

Forms of Expression not Granted 1st Amendment Protection

Fighting words (hate speech), Obscenity, Defamation, and Threats to National Security.

Literalist Interpretation of the 1st Amendment

Similar to an absolutist view but defines carefully "speech" all of which should be protected. Defines speech as "Pure Speech."

Pure Speech

Only that which is written and spoken; any other forms of expression can be regulated.

Speech Plus Conduct

If speech is aided in some way, as in dissemination through media, then can be regulated. If speech plus is regulated, the regulation must be both content- and viewpoint-neutral.

Social Function Interpretation of the 1st Amendment

Looks at the social or political function served by the content of an expression. "Good" is protected, "bad" is either prohibited, controlled or even punished.

Non-Speech

Libel, obscenity, fighting words, and commercial speech, which are not entitled to constitutional protection in all circumstances.

Social Effects Interpretation of the 1st Amendment

Adds that only social function is that of furthering the democratic process; anything deemed "political speech" is absolutely protected.

Judicial Review

The power of a court to determine the constitutionality of a governmental action.

Rational Relationship (Reasonableness) Standard

Party challenging has the burden of proof, can meet burden by showing either: no legitimate government interest served by the action, or no reasonable/rational relationship between a legitimate government interest and the challenged action.

Strict Scrutiny Standard

aka Compelling State Interest Test. Used by the Supreme Court when it encounters a case involving what it calls protective classifications or laws that obviously infringe on preferred freedoms or fundamental rights
Race
Religion
National origin
Alienage

Heightened Scrutiny (Intermediate) Standard

Falls between reasonableness and strict scrutiny. Important interest for significant government purpose, but not compelling.
Reasonable fit between law or action and interest, but not close.

Time, Place, and Manner Restrictions on Freedoms of Expression

Standard of review applied to when, where, and how/what the form of expression is expressed. Speech plus conduct concept (literalist).

Content-Neutrality

Laws may not limit free expression on the basis of whether the speech's content supports or opposes any particular position.

Traditional Public Fora

Areas that have been traditionally available for public expression. e.g.Public streets, sidewalks, parks, some public buildings.Strict Scrutiny Review
For the restriction to be upheld as constitutional, the government must show that:
Law is narrowly tailored,
To further a compelling state interest, and that there are ample alternative channels of communication open to users of these venues.

Designated Public Fora

Areas not traditionally used for public expression, but created or designated for that purpose. e.g. TTU's "free speech" area. Court uses strict scrutiny standard to review
Viewpoint discrimination impermissible so long as content is within the forum's purpose.

Non-Public Fora

All remaining public or private property. Largest category of locations where expressive behavior may be met with government and private legal restrictions. Court uses a Reasonableness Standard of Review for these cases.

Clear and Present Danger Test

Interpretation of the First Amendment that holds that the government cannot interfere with speech unless the speech presents a clear and present danger that it will lead to evil or illegal acts.

Incitement Test

A method used by courts to determine whether to restrict or punish expression based on its potential to cause immediate unlawful behavior.

Miller Test

The current judicial test for obscenity cases that considers community standards, whether the material is patently offensive, and whether the material taken as a whole lacks serious literary, artistic, political, or scientific value.

Prescriptive Laws

Set standards of behavior to which we must conform; order people to do something.

Proscriptive Laws

Prohibit behaviors; say what to avoid and have a tendency to be more general.

Vagueness

A law must give a person of "common intelligence" notice of what is prohibited, one that does not do so is VAGUE and prohibited under the First Amendment and Due Process.

Overbreadth

a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated - ie- city ordinance prohibiting all entertainment b/c of dancing but not ok- b/c prohibiting also plays and speeches etc.

Indecency

Materials are those sexual materials not rising to obscenity, but may still be regulated so as to avoid viewership by children and be subject to zoning laws. This communication enjoys some First Amendment protection but is subject to extensive government regulation.,

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