BEN MERVIS IS GOING TO GET AN A+ ON THIS EXAM! INTRO QUIZ 1. Evel Knievel & Trump =bad hair and trademark infringement (opinion and fact statements) 2. A sign that reads “Bong hits 4 jesus” is not protected under 1st amend (promotes drugs) 3. you can use material that is copyrighted if it is for a parody use 4. fleeting expletive – not written into script, not predicted, accidental expletive The Common Law – an inductive system in which a legal rule is arrived at after consideration of many cases  adapts well to change (longevity) Stare Decisis – is the key phrase “let the decision stand” aka, using precedent in a case  makes court more legit b/c of consistency Equity Law – judge-­‐made law, rules and procedures are more flex than those under common law, rulings come in the form of judicial decrees. Statutory Law – the body is made up of people who are popularly elected and they have the authority to pass laws. Statutes often deal with problems affecting society or large groups of people. They can anticipate problems. All criminal laws are statutory. The process of judicial interpretation is called statutory construction. Constitutional Law – federal constitution, state, city charters… provide the plan for the est. and org. of the gov. they outline duties, resp. and powers of the gov. they guarantee certain basic rights to the people, such as freedom of speech and to assemble. Constitutions do not change easily, must be voted on by the people, are considered the most important source of law. The US constitution is the supreme law of the land. Under the void for vagueness doctrine a law will be declared unconstitutional and struck down if a person of reasonable and ordinary intelligence would not be able to tell, from looking at its terms, what speech is allowed and what speech is prohibited. Vague laws don’t provide fair notice of what speech is permitted and can be enforced unfairly. The overbreadth – if it does not aim specifically at evils within the allowable area of government control but sweeps within its ambit other activities that constitute an exercise of protected expression. The Judicial system (of which there are 52 in the US, one for each of the states, one for DC and one for the federal government), consists of one trial level and at least one level of appeals. Trial courts are fact-­‐finding courts and appellate courts are law-­‐reviewing courts. Congress has the authority to abolish every federal court in the land, save thesupreme court. the two most common ways that cases end up in federal court is cases that arise under the US constitution, US law and US treaties. Also, disputes between citizens of different states will always be heard in federal courts. The two most common ways that cases end up in supreme court are direct appeal: when it is decided that a state’s law is unconstitutional or by certiorari: purely discretionary, discretionary order issued by the court when it feels that an important legal question has been raised. Certioarari is the most common. When there is a “tie” than the decision of the lower court is affirmed, no opinion is written (it is as if the supreme court never heard the case). In the federal system, the trial court is the US District Court each state has at least one, sometimes 2 or more districts. The next level is the US court of appeals, of which there are 13 circuits, the federal one, DC, and then 11 more. The 9th circuit is the busiest. Limited jurisdiction is the lowest level (misdemeanors, traffic court, family court). general jurisdiction refers to the federal district courts and superior courts  hear criminal and civil cases. De Novo is when the appeals court serves as a trial court. Judicial review is the right of any court to declare any law or official governmental action invalid because it violates a constitutional provision (barely ever happens). When beginning a law suit, the plantiff must begin by filing a civil complaint with the court, which is then served on the defendant, who must then respond to the charges (a plea). Demurer is Pleading guilty in a lawsuit, but stating that even if the facts stand true, they are not enough / do not state sufficient grounds for a case. NY TIMES v SULLIVAN – plantiff -­‐ L.B. Sullivan, Commissioner of the city of Montgomery of the police dept, fire dept, cemeteries and scales. Versus defendants NY Times, 4 individual petitioners (Negroes and Alabama clergymen) who’s names appeared in the subject of lawsuit state courts -­‐ $500,000 & Alabama Supreme court affirmed it, reached US SUPREME COURT by discretionary, not by certiorari. Libel because of 2 paragraphs in the advertisement, references to the police, who represented him, “they” & “southern violators” . not all statements in the ad were true. He sued for punitive damages, above and beyond money. Retraction statute demands that a plantiff suing for punitive in Alabama must first submit a written demand for a retraction. If you are a public official, you will be criticized and must therefore uphold higher standards. No actual malice, no real attempts at lying and making someone look bad. Without actual malice being proven, Sullivan had no case. NY TIMES was protected from being sued for libel under the first amendment, because no statements were made with actual malice. CHAPTER 2 Seditious Libel – laws used to punish those who criticize the government/crown. Licensing required printers to obtain prior approval from the govt or church before printing handbills, pamphlets and newspapers. Bonding -­‐ printers often required to deposit with the govt large sums of money. Prior approval carried over to the colonies before independence. Zenger was an immigrant who was jailed for seditious libel for attacking William cosby, who was an unpopular governor. He was guilty under the sedition law. But his lawyers convinced the jury that no man BEN MERVIS IS GOING TO GET AN A+ ON THIS EXAM! should be imprisoned or fined for publishing criticism of the govt that was both truthful and fair. Jury nullification is the power of a jury to ignore a law in a criminal case. First amendment -­ Congress shall make no law respecting an establishment of religion, or prohibity the fee exercise thereof, or abridging the freedom of speech, or the press. Absolutist theory – the govt cannot restrict the press for any reason (absolute right to free speech) Ad hoc balancing theory – chilling effect Preferred position balancing theory – we create a presumption that the first amendment applies – places the burden on the govt to prove why it shouldn’t Meiklejohnian theory -­‐ political speech – freedom of expressions is a means to an end, end is successful self-­‐government or “the voting of wise decisions” Marketplace of ideas theory – “the truth seeking rationale for free expression” where it is the in the best interest for the society for there to be an open exchange/marketplace of ideas Access theory – that everyone have access to the media, not just those who control all of it. 1798 alien and sedition acts prohibited “false, scandalous and malicious publications against the US govt. Jefferson pardoned all people convicted under it. Never tested before supreme court. peacetime sedition law (smith act) prohibited 1. Advocating with the violent overthrow of the govt 2. Conspiring with the violent overthrow 3. Organizing a group to overthrow 4. Being a member of a group aiming to advocate the overthrow. Aimed at the communists. Worked. Clear and present danger first used by Justice Louis Brandeis (1927) – shank v US 1900 teens. Shank was part of the socialist party, encouraged young men to resist the draft and not serve in the war. CLEARLY DANGEROUS. Danger must be imminent. Not implemented until the Brandenburg test. Brandenburg V Ohio (1969) – leader of a KKK group, wanted to march on Washington on July 4th to demonstrate against the “suppression of the white, caucasion race”. Charged with syndicalism (forming a syndicate to commit a crime). Convicted in lower courts. New definition of “clear and present danger” – evil, reasonable belief that the evil will occur if the speech is allowed, reasonable belief that the evil is imminent, and it has to be incitement to immediate action. Media is generally not held responsible for inciting people to engage in violent acts. Davidson V Shakur – Howard stole car, stopped by officer Davidson, howard shot Davidson dead, listening to tupac. Criminal trial – howard claimed the music made him do it, didn’t fly, sentenced to death. Civil action – davidsons fam sued shakur and producers for negligence and product liability, defense came back with first amendment. Davidsons said the album didn’t deserve 1st because it was obscene, contained fightin words, defames peace officers, tends to incite imminent illegal conduct. No to plantiffs, the mere broadcast is not likely to incite violence. Byers v Edmonson – natural born killers movie. Video Dealers V. Schwarzenegger – violent video game, against humans. Plantiff’s claim that video games are a form of expression is protected by the first amendment. Vagueness. Pentagon Papers case -­‐ nyt and several other publications tried to print a story with 47 top secret pentagon papers. High court rule 6 – 3 in favorof the NYT and wash. Post, refused to block publication. Prior restraint – pre-­‐
publication censorship, stricter, official action that prevents communication of something to the public. Considered to be most harmful to the first amendment. CHAPTER 3 Tinker v Demoines – john(15) and mary (16) Tinker, and Christopher Eckhardt (13), armband protest for Vietnam.. Des Moines schools adopted a policy that would ask students wearing a band to remove it… students suspended when they wouldn’t, they sued as a violation of their constitutional rights. Trial and appeals ruled in favor or defendant (school). Supreme court said it was a form of free speech, and that students are entitled to freedom of speech and expression, but that schools have the right to impose rules to prevent disorder and disturbance. Supreme court did not agree with lower courts. “without materially and substantially interfering with the req. of appropriate discipline in the operation of the school and without colliding with the rights of others… CANNOT BE AN ASSUMPTION that it will cause a disruption, there must be proof. Black dissented, not shocking, different than NYt v. Sullivan because wearing an armband is not LITERAL free speech. Strictly followed Tinker in the case of Barber v. Dearborn PS. Where Barber wore the Bush Shirt, was asked to remove it, and didn’t. Courts do not interpret Tinker broadly in order to eliminate censorship in schools, but now courts are ruling in favor of the school more-­‐often because of weariness around situations like columbine. Hazelwood V Zuhlmeier – principal at Hazelwood censored the school newspaper by removing 2 pages which contained an article about teen pregnancy and the impact of parents’ divorce on children. District court ruled that the censorship did not violate the student’s first amendment. Appeals reversed and held: not a public forum, part of school curriculum. Supreme court ruled that the cencorship was permissible. Personal expression v publication (tinker v hazelwood). 3 types of school newspapers: school sponsored/supervised – unsupervised/student controlled – student enwspaper produced and distrib. Off campus. Bethel V Fraser material distribution, made it different than tinker. Tinker was passive expressions versus actively spoken. School board has decision whether a book should be banned or not. Courts often second-­‐guess, but it’s not their preference. Only if the school board removes books already on shelves. Cannot be because they disagree with ideas of viewpoints inside, that would be content censorship.