October 1
-Content Neutral: Have a better chance to be declared constitutional. Time, place, or
manner restrictions
-Content Based – “religious”
-Viewpoint based
Content based law – strict scrutiny test by the court
-compelling government’s interest
-least restrictive means
government has a high burden to prove constitutionality
if it can be proven that there’s another way to do something that’s lest restrictive,
then you must use it
US vs Stevens
Content or viewpoint would have to meet compelling scrutiny test
Viewpoint almost always unconstitutional
Content neutral law – intermediate level scrutiny
-substantial or important gov’t int.
-narrowly tailored
-alternative avenues of communication
Vagueness doctrine
-people of common/ordinary intelligence should not be forced to guess at the
meaning of the law
-clear, unambiguous language and meaning
Overbreadth Doctrine
-law sweeps into its reach not only proscribed speech
-substantial portion of pretected speech
Violent Video Games
-are they speech?
-plots, story lines, music graphics
-protected by the first amendment
But they are interactive!!!
-all literature, movies, TV, photographic media is interactive
high burden
October 3
Preliminary Injunction
-irreparable harm – your fundamental rights of free speech are being infringed
-likelihood of success on the merits
-balance of hardships favor plaintiff
-public interest
content based law – strict scrutiny test
-compelling gov’t interest
-least restrictive means
Underinclusive
-why stop at video games?
-how about violent movies, tv shows, music, books?
When you have a law you have to have definitions
Vagueness doctrine – people of common, ordinary intelligence should not be force
to guess at meaning
-shockingly atrocious is vague
Compelled speech doctrine
-gov’t forcing labels violates the first amendment unless it’s factual
“a 1983 action”
the court has the power to award your attorney’s fees and costs
October 10th
Cyberbullying
-Traditional bullying confined to school premises
-Cyberbullying can have access 24/7
Dilemma for Gov’t
-Balacning the need to protect students and to protect their 1st amendment rights
Drawing he line where the school district authority ends:
In traditional bullying, schools could monitor and regulate behavior that took place
on their premises
Cyberbullying: sending or posting harmful or cruel text or images using the internet
or other digital communication devices – content based
Disruption: Shay had to miss school to avoid abuse
-speculation about copycat bause
Key challenge for states or school districts:
-crafting definitions that are unambiguous and encompass only the proscribed
speech
Law’s where the school’s authority is more clearly defined:
Title IX of the education amendment act of 1972 prohibits gender discrimination
and sexual harassment
Title II of the Americans with Disabilities Act of 1990 protects people with physical
and mental disabilities
Title IV of the Civil Rights Act of 1964 protects against discrimination on the basis of
race, color, or national origin
Right to Know Act
Some examples of public records now available
-911 time response logs (but not transcripts or recordings)
-contracts – the law establishes an online, searchable database for state contracts
-financial records of all kinds
-name, title, salary of public employees and officials
-state-affiliated universities must disclose the salaries of the top 25 paid employees
-Board packets and other documents at the time they are presented to a quorum of
the board before a meeting
-community colleges are now covered agencies
What does “executive session” mean?
-The act defines an executive session as “a meeting from which the public is
excluded, although the agency may admit those persons necessary to carry out the
purpose of the meeting.”
For what reasons?
-To discuss personnel matters, including the hiring, promotion, disciplining, or
dismissing of “any specific prospective public officer or employee or current public
officer or employee employed or appointed by the agency”
-To hold information, strategy, and negotiation sessions related to collective
bargaining agreements or arbitration.
-To consider the purchase or lease of real estate up to the time an optin or
agreement is obtained.
-To consult with its attorney or other professional advisor about information or
strategy…
-To review and discuss agency business which, if reviewed or discussed in oublic,
would lead to the disclosure of information recognized as confidential or privileged
under law, including the initiation and conduct of investigations of possible
violations or the law and quasijudicial deliberations.
-For commitees of the governing board of a state-owned, state-aided or state-related
college or university or community college or the Board of Governors of the Stat
System of Higher Education only, to discuss matters of academic admission or
standing
Ocotber 15
-Sixth Amendment
-speedy and public trial
-impartial trial
long history of open/public trials
-informed of the nature and cause of the accusation
(arraignment)
-confront witness (right to confrontation caluse – cross examination)
-compulsory process for obtaining witnesses (subpoeana, make sure they’re there)
-assistance of counsel
Search and Seizure (4th Amendment)
-supported by oath or affirmation
-describing the place to be search and the persons or things to be seized
Arraignment
-formal reading of the charges
(“to be informed of the nature and cause of the accusation”)
Bail – way to assure that the criminally accused comes back for the proceedings
1. ROR – released on your own recognizance (just a promise)
2. 10% allowed
3. full amount
Factors: Risk of Flight
-Severity of the Crime
Preliminary Hearing
-prima facie evidence
-crime has been committed
-linking accused to crime
Pre-trial motions
-suppression
-change of venue
-change of venire
October 17, 2012
First Amendment vs Sixth Amendment
Sixth Amendment
-speedy and public trial
-impartial jury
-within the venue of the crime
-informed of the nature and cause of the accusation
-confront witnesses
-compulsory process for obtaining witnesses
-assistance of counsel
Anatomy of Trial Process
-Jury selection (voir dire)
-Opening instructions
-opening statements
-prosecution’s case-in-chief
Witnesses
-direct examination
-cross-x
-prosecution rests
-motions outside hearing of jury
-defendant’s case – in chief:
witness examinations
-defense rests
-closing arguments
-jury instructions
0jury deliberations
-verdict
Why do prosecutors go first?
They have the burden of proof
Prosecution can’t lead the witness, defense can
Redirect
-Press and public have an independent First Amendment right to attend criminal
trials
-Right to co-exists with the Sixth Amendment right to a public trial which belongs to
the accused in a criminal case.
Press-Enterprise vs. Superior Court (1) (1984)
-voir die process open to the press and public
-part of trial
Press Enterprise v. Superior Court (II) (1986)
-Presumption of openness extends to the preliminary hearing
-To rebut, the party seeking closure must:
(1) advance an overriding interest
(2) (2) narrowly tailored to achieve the interest
(3) trial court must consider alternatives to closure
(4) trial court must make adequate findings on the record to support the closer
decision
Nebraska Press Ass’n v Stuart
-Pervasive publicity about case
-usual methods of ensuring fairness won’t work
-gag order will stem the flow of publicity
October 22, 2012
Content based/content neutral
Violent video games – content based (compelling gov’t interest, least restrictive
means)
Vagueness doctrine
Overbred doctrine
Sexually explicit
Likelyhood of success on the merits
Student speech – public schools
Private schools – no gov’t action
1969 Tinker vs. Des Moines
Bonghits for Jesus
En banc
6th amendment