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JOUR 3020 Midterm Exam

Terms in this set (37)

Jurisprudence
The study of law
Natural law theory
All law derives from nature or the natural order of things - In the U.S., it typically has a Judeo-Christian orientation (3 Major Theories of Law)
Positive law theory (Positivism)
All law must be explicit and typically in writing
- Examples include: constitutions, statutes, ordinances and regulations, but may also include written court opinions in some cases (3 Major Theories of Law)
Utilitarian theory
All law should be based upon, and interpreted to provide, the most good for the most people
- For example, if a law could be interpreted to give economic advantage to a few and economic detriment to most people, or to give the opposite, the latter interpretation should be employed (3 Major Theories of Law)
Common law
Judge-made law as set forth in the written, published decisions of the courts - It's constantly evolving, although it's based on what other courts have done in similar circumstances in the past (5 Sources of the Law)
Precedent
How a court ruled in similar case in the past - Some are binding, while others are merely persuasive - Lower court must always follow the higher court in a given jurisdiction
Stare decisis
"Let the decision stand" - Under this doctrine, judges should honor and follow prior court decisions, unless there's a good reason not to do so
Common law syllogism
Form of logic consisting of the application of a major premise to a minor premise leading to a conclusion - Expressed as "A [major premise] + B [minor premise] = C [conclusion]"
Equity
Means fairness, in the absence of any other law - Judge-made law, rarely used (5 Sources of the Law)
Statutory law
Legislation of bills, passed by both houses of Congress, state legislatures or local councils (called ordinances) - Made by legislative bodies on votes, not judges - Positive statements of the law, generally prospective (from now on) in application, and subject to judicial action (5 Sources of the Law)
Constitutional law
The basic charter of a government to which all other sources of law must conform - Often called the "supreme law of the land," whether federal, state or local (often called "charters") - The people get the first word, courts get the last word (5 Sources of the Law)
Executive orders, administrative rules and regulations
Under constitutional authority, the power of a chief executive (e.g. president, governor, mayor) to direct or order some action or policy by the executive branch of government without legislative approval (5 Sources of the Law)
Jurisdiction
Place or area that has a legal (juridical) existence, such as a country, state, county or city - The power of a court to do something
Prior restraint
Pre-publication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment of a person after the material has been published or broadcasted - No licensing of the press
Licensing of the press
Getting the permission of the government (perhaps paying a fee or tax) to publish or broadcast
Seditious libel
Criticizing the government or government officials
Absolutist theory
The phrase "no law" in the First Amendment means no law - The First Amendment provides an absolute protection against censorship - No Supreme Court Justice now abides by this interpretive theory (7 Theories for Interpreting First Amendment Freedom of Expression)
"Ad-Hoc Balancing" theory
"For this case only" - When Freedom of Expression conflicts with other important rights, the courts will balance this freedom on a case-by-case basis with the other conflicting rights - Not now in vogue by the courts (7 Theories for Interpreting First Amendment Freedom of Expression)
"Preferred Position Balancing" test
When Freedom of Expression conflicts with other important rights, the courts will gave greater weight to Freedom of Expression - Most popular in judicial theory today (7 Theories for Interpreting First Amendment Freedom of Expression)
"Meiklejohnian" theory
Two kinds of speech, public and private - Absolutist on public speech, Preferred Position Balancing on private speech, hybrid of the two theories - Expression that advances self-governance ("public speech") should always be fully protected, expression that addresses anything else ("private speech") need not be fully protected (7 Theories for Interpreting First Amendment Freedom of Expression)
"Marketplace of Ideas" theory
All information and opinions should be allowed to compete in a marketplace of ideas so that the public can choose the best - If we don't allow speech that we think is hateful, then negative opinions are never heard - Used often in Freedom of Speech cases, but critics suggest it permits speech that is harmful, it has little value and people with greater resources have louder voices (7 Theories for Interpreting First Amendment Freedom of Expression)
"Access" theory
Freedom of Expression is not meaningful unless everyone has access to media outlets - If the media won't allow use of the airwaves or print voluntarily, the government ought to compel such access - Not accepted by the courts today (7 Theories for Interpreting First Amendment Freedom of Expression)
"Self-Realization/Self-Fulfillment" theory
Freedom of Speech is inherently valuable to a person (self-worth, self-image) regardless of its effect on others and therefore should be permitted notwithstanding its value to others (7 Theories for Interpreting First Amendment Freedom of Expression)
Clear and Present Danger test
1. Did the speaker intend words to incite lawless action ("directed to inciting")?
2. The time between speech and lawless action must be close ("imminent")
3. The "lawless action" must constitute a violation of the criminal law and
4. The lawless action must be substantially "likely" to occur - not merely a speculative result of the speech
Taxation
The government cannot use ______ to control or censor the press, media outlets must pay the same _____ imposed on other businesses, can't have a separate ____ for the media
Time, Place and Manner restrictions
1. Must be content-neutral on their face and as applied (little discretion), can't favor one side over another
2. Must not constitute a complete ban on a kind of communication, there must be some alternative means of communication, prohibitions can't be too broad
3. Must be justified by a substantial state interest (e.g. safety) and
Ex: public safety, public security, public health, severe public interference
4. Must be narrowly tailored so that they further the substantial state interest asserted, but do not restrain more expression than is actually required to further that interest
Traditional public forum
Place, by long tradition, devoted to public speech and assembly (e.g. public parks, street corners, steps to, or plazas in front of, public buildings) - It has the highest level of First Amendment protection (4 Kinds of Forums)
Designated public forum
Places created by government, in part, for expressive activities (e.g. municipal auditoriums, fair grounds, community centers) - Has a high level of First Amendment protection, but may be subject to time, place and manner restrictions (4 Kinds of Forums)
Restricted public property
E.g. prisons, military facilities, interior of government office buildings, parts of airport terminals - These kinds of facilities have highly limited First Amendment protection (4 Kinds of Forums)
Private property
Generally no First Amendment rights, but shopping centers that function as city streets or a town green, cannot permit some free expression and not others based on their content - State constitutions may confer greater rights of free expression to such places than the U.S. Constitution, but they cannot confer lesser rights (4 Kinds of Forums)
Mandatory FOI exemption
There is no choice but to keep the record or information confidential ("shall" or "must")
Permissive FOI exemption
The government may disclose the record of information, although it's not obliged to do so
Functional Equivalency Test
1. Whether the entity performs a governmental function
2. The level of government funding
3. The extent of government involvement or regulation and
4. Whether the entity was created by government
(Don't have to have all four parts, look at each criteria individually)
Misappropriation
To prove, must establish the use of a person's name or likeness for commercial/trade purposes without their consent
Intrusion
To prove, must establish whether or not a person had a reasonable expectation of privacy
Publicizing private facts
To prove, must establish that facts would be highly offensive to a reasonable person, are not of legitimate public concern and that the information was private before there was publicity
False light
When either published truthful or private information places the subject in a ________
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