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Mass Media Law midterm
Terms in this set (81)
Which of the following is a source of American Law?
What is the official name for "let the decision stand"
What is Stare Decisis?
" let the decision stand" this concept is the operating principle in the common- law that requires judges to follow precedent law when making decisions.
When does the court overrule prior opion as bad law?
1.) social mores of values
2.) justices on the court
3.) factual knowledge and circumstances
what is common law?
Principles and laws that derive their authority from community usage and custom not legislation.
What is precedent?
Laws passed by the Supreme Court in the past that is used as reference for current cases to set standards
What is citation and how is it used?
To reference a case or study in an article, case or report
What is En Banc?
When all or most justices sit in to hear a case in the appellate court
Name and identify 3 Supreme Court justices
What is the difference between trial v appellate courts?
1.)trial courts deal with the facts of cases
2.) appellate court deals with whether or not the law has been properly applied
What is judicial review? And the two policies that come with that?
the right a court has to declare a law unconstitutional and therefore invalid.
How do cases move through the court system?
District & Municipal court --> to the state superior court --> to the court of appeals --> to the Supreme Court
Define a Plaintiff
The party that presents the case
Define a Defendant
The accused party in a case
What is the writ of certiorari?
When an appellant seeks to have their case reviewed by the Supreme Court, when granted the Supreme Court orders lower courts to send up the case to be reviewed.
What are the types of opinion?
1.) Malkovich: a pure opinion doest assert or imply a provable fact
2.) Ollman: Looks to understand the intent of the speaker
What is the rule of 4?
When at least four justices on the Supreme Court agree to take on a case to be tried in the Supreme Court
What are the five rights given by the first amendment?
1.) freedom of speech
2.) freedom of religion
3.) right to assembly
4.) right to petition
5.) freedom of press
How did the British treat speech?
The British government realized that unrestricted speech could dilute the power of the anarchy so they created Seditious Libel to limit and restrict speech and publication
What is seditious libel?
Limits to restrict the press, laws were created to punish those who criticized the British government in the 1700s
What is prior restrain? ( see page 76)
the law required printer to obtain prior approval from the government or church before printer and distributing anything
What effect did licensing and bonding laws have on society and how were they used to control things?
They were used to control what the press released. It required printers to obtain prior approval from the government or church before being able to print pamphlets and papers. And often times they were charged deposits like fees for publishing their papers.
What is jury nullification?
When a jury can simply ignore the law. It is the power of a jury to 'nullify' a law or verdict based on conscience.
What was the main issue of the Zenger trial
Can the government enforce prior restraint on the press
What is the Brandenburg test? ( as related to basketball diaries)
Whether or not the media or companies published content with the intention of provoking violence.
What is strict scrutiny?
When determining whether a case is content neutral, if it appears a plaintiff isn't being content neutral, they are bringing the case fourth because of the content ( content based restriction) which would make the case one of strict scrutiny.
What must be present for a case to be strict scrutiny?
There must be content based restrictions (topic/subject matter)
What is intermediate scrutiny?
The ruling to a time place and manner decision based on whether something was content neutral when it is protested by government.
What must be present for intermediate scrutiny?
1.) is the rule content neutral?
2.) does the law ban all speech?
3.) government must provide substantial evidence as to why they are blocking the speech
* i.e "threat to national security"
4.) the Law must be narrowly tailored
What was the significance behind the pentagon papers?
It addressed the federal government's ability to stop publication of stolen, classified information that because it jeopardized national security during the Vietnam war.
What is clear and present danger?
the Brandenburg test; courts use this case to determine whether things like movies, books and other media was created to purposely insight violence
Why is clear and present danger no longer used?
Because it is an old precedent
What is community censorship?
What is Hecklers veto?
When an audiences negative, adverse and sometimes violent reaction to a peaceful speaker controls and silences the speaker.
What was the significant behind Miami Herald vs. Tornillo?
What is the significance of Brandenburg vs. Ohio?
What is the significance behind Gitlow vs. New York?
What is the significance behind Near vs. Minnesota?
What are time, place and manner restrictions?
Rules that, when justified by substantial government interest, can regulate the time, place, and manner of speaking or publishing of content.
What are the 4 components of Time, place and manner?
1.) rules must be content neutral
2.)rules must not completely ban speech
3.) rules must be justified by a substantial state interest
4.) rules must be narrowly tailored
What is the first rule of time, place, and manner?
the issue must be content neutral on everything including manner of application
What can the law NOT do when it comes to time, place, and manner?
the law cannot completely ban communication
What does a state must do to prove time, place, manner?
the State must prove substantial/compelling interest to justify restraint ( fighting words)
What does the law have to do to prove time, place, manner?
the law must be narrowly tailored and not broad in its restriction.
What is the difference between a public and designated forum?
-A traditional public forum are places like public plazas ( red square) and sidewalks.
-A private forum is almost never protected, you can't go onto someones lawn (aka private property) and start protesting
What are the son of sam laws?
When states try to prevent people from earning a profit off of their exploits. ( usually aggressive in nature; murder, rape, etc.)
*This was applied to criminals just out of prison to prevent them from earning a profit off of their murders from books and movies.
* think Serial Killer Sam because it was based off of a New York serial killer
What are the only exceptions to the first amendment?
1.) incitement of violence
2.) fighting words
4.) child pornography
5.) false advertising
What is net neutrality and what is it application to free speech?
The concept that internet traffic should flow as democratically as possible
* the big debate is whether the internet will be treated like cable ( where you are charged for certain content and services)
* FCC, Comcast, and BitTorrent are all in this discussion
What was the significance behind Snyder v. Phelps?
Extreme viewed protestors protested the funeral of a Corporal Marine on the public sidewalk. The father of the fallen soldier sued for IIED but the court found that THE MATTER DEALT WITH PUBLIC CONCERN
* there is a difference between offending people and spreading a powerful message through just as powerful speech
What was the significance behind Citizens United vs FEC?
What are the five components that need to be present for Libel?
How would someone be able to accuse a journalist of being negligent?
If the reporter did not put a REASONABLE amount of commitment to report the truth within reason. ( how much effort did they put in?)
What is tort?
A civil wrong not based on a contract against the person or property of another. Typically torts are LIBEL, invasion of privacy, and assault.
What is the single mistake rule?
In a libel case it is a rule that states that it is not libelous to accuse a professional person or business person of making a SINGLE mistake
- " dr. pat jones incorrectly diagnosed the patients illness"
Describe the difference between Public official and Public figures
- a public official is from an elected or appointed public officer who HAS A CONSIDERABLE AMOUNT OF CONTROL OVER GOVERNMENT AFFAIRS.
- A public figure who has VOLUNTARILY entered the public controversy in an effort to influence public opinion
What are the types of privilege?
1.) absolute: Congressmen, state representatives, city council members
2.) qualified: protect people from tort claims when in the context of some official duties in the public interest.
What is the ollman test? And what are the 4 questions to ask
The test of whether a comment is opinion or not, but not all rules have to be met to be considered a statement of opinion.
1.) can the statement be proved as true or false?
2.)what is the common or ordinary meaning of the words stated?
3.) What is the context of the word/ phrase
4.)what is the social context
What is rhetorical hyperbole?
An opinion statement that is overstated for affect defended by the idea that it is so irrational or unbelievable a reasonable person would understand that it is not fact
- "my bag weighs a ton"
What is neutral portage?
A libel defense that states, it is permissible to publish or broadcast an accurate account of information about a public figure from a reliable source even when the reporter doubts the truth of the libelous assertion. Not widely accepted.
What is IIED?
Intentional infliction of emotional distress
-A public figure must prove:
1.) That someone made it a statement of fact
2.) that it was a false
3.) And that they committed actual malice
What are the defenses against libel?
1.) The truth
2.) absolute or qualified privilege ( if the comment is made about a politician they have the privilege to be able to disprove a claim in a very public way; aka the news)
3.) fair comment
What is criminal libel?
A libel case against the state, the dead, or against a large ill-defined group ( like an entire race) in which the state prosecutes on behalf of the injured parties
What is summary Judgment?
when a case may be dismissed or decided purely off of the facts provided to the court, saving both parties a costly jury trial.
What are anti-slaps laws?
they are meant to protect journalists from lengthy lawsuits that would drag on to stipple free speech and bury people in legal fees.
What was the significance of New York Times vs. Sullivan?
It determined that Sullivan could not prove that the NYT printed the things about the Montgomery Police department knowing it was false. They didn't commit actual malice
What was the significance of Curtis Publishing co. vs. Butts
The Publishing Co. had alleged that Butts and UofAlabama coach had conspired to 'fix' the game. The paper received the tip from George Burnett who had a criminal record and claimed to have overheard the conversation and took notes. The case brought up the issue of Public figures/ defamation and whether the paper committed negligence.
- Public figures
What was the significance behind Masson v New York Magazine?
Jeffrey Masson sued journalist Janet Malcom for changing the words he had said in an interview and requited them as something different.
* court decided that it was implied that words contained within quoatation marks are a verbatim product but it can be impossible to attain perfection.
What was the significance behind Hustler vs. Falwell?
Hustler published a liquor advertisement with a false statement that Falwell ( a very outspoken conservative) had an incestuous encounter with his mother.
-factual claims about a public figure
What are the 3 factors that need to be present for something to be considered prior restraint?
1.) The state must prove in court that prior restraint is justified
2.) the governments burden is high because they must prove a threat to security
3.) The state must be very clear and narrow as to why the speech is restricted and what is being restricted.
What is void of vagueness?
a law unconstitutional if a reasonable person cannot tell what it is targeting or focusing on
What is over breadth doctrine?
when a law is unconstitutional because it goes beyond the problem it is trying to solve to include protected speech
What is Plurality Opinion?
( think plural opinions meaning multiple)
When up to 5 justices agree on an outcome of a case but not for the same reasons.
What is the dissenting opinion?
the opinion of a(n) justice who disagrees with the decision of the court on an issue.
What does the French word En Banc mean?
When a litigant who loses an appeal court can ask for a rehearing by the entire court
What is Libel?
KNOW THIS ALMOST EXACTLY AS IT IS WRITTEN
" 1.) publication of a 2.)falsity that 3.) injures someones reputation, and lowers that persons esteem through 4.) identification
What does it mean to be "Libel Proof" ?
When an idividuals reputation cannot be further harmed by the comments made by others
* Donal trump in a lot of cases
* Gang members or murders
What is actual malice?
The reckless disregard for the truth
What is the test for comment?
1.) is the comment a statement of opinion?
2.) did the defamatory comment deal with issues of public interest?
3.) was there a factual basis for the comment?
* how do you test for an opinion statement? OLLMAN TEST
Why is Fair Comment and Criticism a weak argument in a case?
Because it is common law, the Ollman test is a constitutional law that would make a stronger case.
What is Per Curiam?
An unsigned court opinion, the author of the opinion is not know outside of the court.
What is Amici Curiae?
" Friends of the court" or people who have no specific legal stake in a lawsuit but are allowed to appear on behalf of one of the parties in a case.
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