Media Law Test #1
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4 key roles of the courts
Graphic of the U.S. Court System
Which are “appellate” (lower-case “a”) courts?
Which are trial courts?
Key differences between trial and appellate courts
Only judges decide the outcome of trials in the U.S. Circuit Courts of Appeals, because appellate courts decide only on matters of law. Juries only serve on trial courts.
an action taken by an appellate court in which it sends back a case to the trial court or lower appellate court for further action.
General jurisdiction courts
A court of general jurisdiction is one that has the authority to hear cases of all kinds - criminal, civil, family, probate, and so forth.
How cases get to the Supreme Court.
The Supreme Court screening process consists of trying to hear those cases that raise the most significant legal issues, cases where the lower courts have flagrantly erred, and those where conflicting lower court decisions must be reconciled. The three ways a case can reach the Supreme Court are: The Constitution gives the Supreme Court original Jurisdiction over few types of cases. This means, the Supreme Court ruling is above the ruling of the first court to hear the case. Second, there are a few cases in which the losing party in the lower courts has an automatic right to appeal to the Supreme Court. Lastly, there are a vast number of cases that the Supreme Court may or may not choose to review; it is not required to hear those cases, but some raise very important questions.
Writ of certiorari (cert denied, and rule of four).
an order from the Supreme Court to send up the records of the case. certiorari granted means the court decided to hear the appeal, and certiorari denied means they chose not to hear it.
Majority rule from Supreme Court
a written opinion by one or more judges of a court which agrees with the decision made by themajority of the court, but states different reasons as the basis for his or her decision.
an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment
Residual jurisdiction (as it pertains to state courts).
Anything that is not a federal question, or an area in which the federal government has subject has subject jurisdiction, automatically falls within the jurisdiction of the state courts.
an amorphous collection of legal principles based on court decisions passed down over centuries. It is an unwritten law. Common law includes rules concerning everything from crimes to non-criminal matters.
Statutory Laws are written down in a systematic way . They are often organized into codes. A code is a collection of laws on similar subjects, indexed arranged by subject matter
- Judge has authority to act in an "emergency"
- Injunction- righting a wrongdoing or preventing a wrongdoing.
- one judge one order
- ex. restraining oreder
What’s a plaintiff? What’s a defendant (respondent)?
In a citation (for example, Smith v. Jackson), which is the plaintiff? Which is the respondent?
Generally, familiarize yourself with the process of a civil suit, as explained in class (complaint à response à courts waiting à “matter at issue” à appeal (appellant vs. appellee).
- Dispute between two parties (plaintiff and defendant)
- Failure to settle dispute ("matter is at issue" ready for trial.
- During an appeal if one party doesn't agree on decision, they can appeal it
(a) What matters fall under the jurisdiction of state courts? (b) What makes an issue a federal question? (three areas).
- Anything that is not a federal question, or an area in which the federal government has subject has subject jurisdiction, automatically falls within the jurisdiction of the state courts.
- The factors that make an issue a federal question are: The Constitution declares that certain areas of law are inherently federal questions, federal courts may intervene in state cases if a state court ruling conflicts with the U.S. Constitution, and diversity of citizenship, which is when one party to a lawsuit is from one state and the other is from another state.
(a) Can a law be enacted or enforced if it violates the U.S. Constitution? (b) What is “Common Law?” (c) What is “Statutory Law?”
- No law may be enacted or enforced if it or enforced if it violates the Constitution.
- Common Law is an amorphous collection of legal principles based on court decisions passed down over centuries. It is an unwritten law. Common law includes rules concerning everything from crimes to non-criminal matters.
- Statutory Laws are written down in a systematic way . They are often organized into codes. A code is a collection of laws on similar subjects, indexed arranged by subject matter.
Henry VIII’s licensing system and prior restraint
- 15th century kings from same family.
- Gutenberg printing press
- Rulers feared power of press.
- royal permission to print
- prior restraint- leader steps in before communication is launched
- Henry formed church of England
incitement of resistance to or revolt against the gov.
John Milton (marketplace of ideas) and John Locke (social contract theory). Study Q&A answers to questions 1 and 2.
- John Milton's marketplace of ideas was the notion that there should be freedom of speech so that all ideas would have a chance to be heard, considered and compete for attention and believers. However, he did not think free speech should be granted to those who advocated ideas that he considered dangerously false or subversive.
- John Locke's Social Contract theory states that a government where the people give up some of their rights to enjoy other rights, moving from a state of matter to a state of cooperation for self-governance; He thought that people should have rights to life, liberty and property rights. Locke thought freedom of expression was central.
5 key freedoms guaranteed by First Amendment
- • an establishment of religion
- • freedom of speech
- • freedom of the press
- • the right of the people peaceably to assemble
- • to petition the Government for a redress of grievances
Attorney General v. Zenger: circumstances, court finding, precedent/legacy.
Zinger was charged by royal governor William Cosby with printing and publishing a false, scandalous and seditious libel, in which the governor is scandalized as a person that has no regard to law or justice. Zenger's attorney, Andrew Hamilton, urged the jurors to ignore the maxim of "the greater truth, the greater the libel" and to decide for themselves whether the statements in question were actually true, finding them libelous only if they were false. Hamilton urged the jurors to ignore the judge's instructions and Zenger was found not guilty, because the things he printed were true.
People v. Croswell: circumstances, court finding, precedent/legacy.
- • Reporter attacked Jefferson in print
- • Convicted in New York state court
- • Lost appeal
- • Result: Hamilton Doctrine
- • Hamiltion doctrine came from a loss.the truth + good motives should be a liable end.
Schenck v. U.S.: circumstances, court finding, precedent/legacy.
- Socialist leader undermined military draft
- publishes 15k leaflets to people signing up to serve in military.
- Convicted under Espionage Act of 1917
- Supreme Court upheld conviction
- “Clear and present danger” test
Abrams v. U.S.: circumstances, court finding, precedent/legacy.
- Leaflets critical of U.S. military decisions
- Convicted under Espionage Act
- Supreme Court upheld conviction
- “Danger of immediate evil”
Gitlow v. New York: circumstances, court finding, precedent/legacy.
- Writings advocated anarchy
- Convicted for violating state statute
- Supreme Court affirmed conviction
- Incorporation doctrine
Whitney v. California: circumstances, court finding, precedent/legacy.
- Convicted in California for subversive group membership
- women's rights group- Communist Labor Party
- a member spoke of overthrowing gov/ arrested for being a member. 40 yrs later, conviction overthrown.
- Supreme Court upheld conviction
- Brandeis: “more speech, not enforced silence.”
Dennis v. U.S.: circumstances, court finding, precedent/legacy.
- Convicted of under Smith Act
- Appellate and Supreme Courts upheld conviction.
- Hand’s “gravity of evil” test
- He ruled that calls for the violent overthrow of the American government posed enough of a "probable danger" to justify the invasion of free speech
Yates v. U.S.: circumstances, court finding, precedent/legacy.
- Yates, 13 others convicted under Smith Act
- Supreme Court reversed convictions
- Distinction: teaching abstract theory and advocating violent action
- Only used of people using concrete action not theoretical.
Brandenburg v. Ohio: circumstances, court finding, precedent/legacy.
- Klan speaker called for government overthrow- Claims the white race had a more difficult time than any other in America.
- Convicted under criminal syndicalism law- syndicalism law- no forming groups to preform acts of violence.
- Supreme Court reversed & Ohio law invalidated
- “Imminent lawless action” test- act against only if producing imminent lawless action. "They can actually pull it off"
- Reversed Whitney case after this case.ct against only if producing imminent lawless action. "They can actually pull it off"
In the 1644, John Milton wrote a speech called Areopagitica (Air-e-o-pa-jitica) that denounced government censorship. (a) Describe his “marketplace of ideas” and the self-righting process that he was advocating; (b) Who did he believe SHOULD NOT have rights to free expression?
John Milton's marketplace of ideas was the notion that there should be freedom of speech so that all ideas would have a chance to be heard, considered and compete for attention and believers. However, he did not think free speech should be granted to those who advocated ideas that he considered dangerously false or subversive.
(a) Describe John Locke’s “social contact theory” and the natural rights that he believed were endowed to every person. (b) Which of these rights did he believe was central?
John Locke's Social Contract theory states that a government where the people give up some of their rights to enjoy other rights, moving from a state of matter to a state of cooperation for self-governance; He thought that people should have rights to life, liberty and property rights. Locke thought freedom of expression was central.
(a) Describe the Hamilton Doctrine and its origins with Alexander Hamilton as the defense attorney in People v. Croswell (1804)? (b) What was the doctrine’s relationship to the ANDREW Hamilton defense offered in the Zenger trial?
The Hamilton Doctrine dded a provision empowering the jury to determine whether the statement in question was actually libelous. The relationship between the doctrine and Hamilton is the defense he used in the Zenger trial. It gained him general acceptance in American law only after another lawyer named Hamilton made it his cause as well.
When a gov or gov agent stops speech or expression before its communicated
Social impact of prior restraint (also found in your answer to Q&A question #1).
sometimes government officials attempt to sensor the news media to prevent the dissemination of information that they see as a threat to national security.
Near v. Minnesota: circumstances, court finding, precedent/legacy.
- accused gov of being in the back pocket of mobsters
- Trial court rules paper to be a public nuisance
- prior restraint is unconstitutional
- Supreme Court throws out law
- censorship possible only under certain finely defined precedents
New York Times v. U.S. (Pentagon Papers case): circumstances, court finding, precedent/legacy.
- Pentagon report about Vietnam War leaked to 2 newspapers
- Papers initially ordered to stop publishing
- Supreme Court sets aside prior restraint
Can government employees be made to sign away their rights to free expression? Explain.
- There are limits on those near sensitive information
- No protection: National security, government secrets
- Yes protection: Acting privately on matter of public concern
treating people a certain way based on who they are
What is the fighting-words doctrine? Can hate speech be banned based on its content?
The Supreme Court’s stand on on the “fighting words doctrine” was “speech likely to cause a fight may be prohibited”. However, in 1992, they ruled that “hate speech” cannot be banned on the basis of its content, although violent action can and will be.
Legality of “symbolic political expression” vs. words to incite violence.
Is flag desecration legal?
yes. US v Eichman- if it is your flag, you can do whatever you want with it.
Familiarize: The hierarch of “protected free expression”
Literature distribution and rallies:
Difference between distributing materials in a mall walkway and a mall store.
- Distribution of materials protected
- A walkway belongs more so to the public
The FACE Act and abortion protests
- Public streets, yes; private homes, no
- “The Nuremburg Files”
- “Floating bubble”
Defined: Defamation, libel and slander.
- damage to ones rep with a statement that isn't true
- written defamatory statement that can't be proven as true
- spoken statement" "
Are defamation, libel and slander cases civil or criminal trials?
Why are only some instances of libel “actionable?”
- can get someone sued
- have to meet 5 elements
To whom does the burden of proof belong in defamation trials? What does this mean?
Falls to the plaintiff. Plaintiff has to prove it is true
Can a family sue for libel on the behalf of their deceased love one?
No, once you die, you lose your libel rights.
Can a company sue?
What about small groups? Large groups?
Can be a plaintiff: Individuals, companies, individual members of a group, individual government officials
Can an online provider be sued when someone libels someone else in a chatroom?
Libel per se and libel per quod.
- Libel per se is the classic kind of defamation where the words themselves can hurt person's reputation such as rapist or murderer.
- When it is not immediately apparent that the words are libelous, or when one must know additional facts to understand that there is defamation, it is libel per quod.
- The types of damages affiliated with these are special damages (provable monetary loss), general damages ( pain and suffering or embarrassment due to loss of reputation)
Familiarize: “Danger zones” of defamation.
- Criminal behavior
- Sexual implications
- Would expose to ridicule
- Business side: defaming business practices, credit, performance of service or product
Libel element #2 (Identification)
- Oblique reference-Clues that a reasonable person would understand
Libel element #3 (Communication)
What’s not protected.
Libel element #4 (Fault)
- Strict liability
- Actual malice (fault for public figures): 1. Knew it was false and printed it anyway; 2. Printed it with “reckless disregard for the truth.”
- Negligence (fault for private individuals): absence of reasonable care; failing to adhere to standards of good journalism.
- plaintiff must prove the statement is false (rather than defendant prove it’s true).
- Absolute and qualified privilege
Fair comment and criticism
- Based on facts, correct & accurate
- Concerning public performance
- Pure expression of opinion > no provable facts
New York Times v. Sullivan: circumstances, court finding, precedent/legacy.
- Ad charges civil rights abuses
- Enough people could say who the ad was about
- Alabama courts rule against Times
- Supreme Court reverses
Curtis Publishing v. Butts, joined with Associated Press v. Walker: circumstances, court finding, precedent/legacy.
- CPvB- UGA director giving game film to bear bryant
- Butts wins lower level and SC
- APvW- Ole Miss first colored student
- starts a protest ends in one dead
- Walker won on lower level but SC overturned because there was proof that he started the protest
Gertz v. Welch: circumstances, court finding, precedent/legacy.
- Gertz Chicago attorney representing family of a child shot by Chicago police. Welch wrote that Gertz is a communist fronter. Gertz wins on trial court level and is awarded $50k. Judge negates jury verdict because they are ruling on emotion and not by law. His comments needed to be malicious to win.
- Gertz not a public figure, celebrity, or gov official. Private individual
- Supreme Court says all you have to do is prove negligence which it did.
- Jury changed $40k ruling to $400k ruling.
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