Introduction to the Legal
System and the First
Amendment
August 27, 2012
CUNY Graduate School of
Journalism
The U.S. Legal System
THE COURTS AND
THE CONSTITUTION
Where Do You Find Law:
1. The Constitution
2. Federal Statutes
3. State Statutes
4. The “Common law”
4. The “Common Law”
a. Judge made law
b. Precedent
Federal Court System
United States
Supreme Court
U.S. Courts of
Appeals
U.S. District Courts
U.S. District Courts

Geography dictates in which district
a case lands
• SDNY
• EDNY
• D. CT

Types of cases include:
• Civil and criminal
• Jury trial and non-jury (bench trials)
Figure: Geographic circuits of the U.S. Court of Appeals
The Supremes a/k/a SCOTUS
New York State Courts
New York Court of
Appeals
Supreme Court of the
State of New York,
Appellate Division
Supreme Court of the
State of New York
Organization of Federal Courts and a Typical State Court System
United States
Supreme Court
State Highest (Second
Level Appellate) Court
U.S. Court of Appeals
State Appellate Court
Federal
Regulatory
Agencies
U.S. District Courts
State Trial Courts
But which Court hears what?
Federalism
Federal Courts

Federal Questions
• Federal statute
• Federal (U.S. Constitutional) right

Diversity of Citizenship

Preemption

Concurrent Jurisdiction
Supreme Court

Original Jurisdiction

Appeal as of Right

Writ of Certiorari
•
•
•
•
Circuit (or State) Split
Fully Developed in Lower Courts
Important Federal Question
Lower Court Got It Wrong (if constitutional
rights have been violated or question of new
statutory interpretation)
• Who Is Asking
• Useful Vehicle for Justice
Comparing Courts – Which
Court Decides What

District (trial) courts
• Questions of fact
• Questions of law

Courts of Appeals

Supreme Court
3. State Statutes
(Albany)
2. Federal Statutes
1. The Constitution
James Madison
Alexander Hamilton
James Monroe
The Preamble
We the people of the United States, in
order to form a more perfect union,
establish justice, insure domestic
tranquility, provide for the common
defense, promote the general welfare, and
secure the blessings of liberty to ourselves
and our posterity, do ordain and establish
this Constitution for the United States of
America.
The Body of the Constitution
Part 1

Article I -- The Legislative Branch
- Section 8 – “The Congress shall have the power
to…promote the progress of Science and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective
Writings and Discoveries;…”

Article II -- The Executive Branch

Article III -- The Judiciary
The Body of the Constitution
Part 2


Article IV -- Establishes “Full Faith &
Credit” Between The States And
Guarantees State Sovereignty
Article V - The Amendment Process
The Body of the Constitution
Part 3

Article VI - The Supremacy Clause
This Constitution, and the laws of the
United States which shall be made in
pursuance thereof; and all treaties made,
or which shall be made, under the
authority of the United States, shall be the
supreme law of the land; and the judges
in every state shall be bound thereby,
anything in the Constitution or laws of any
State to the contrary notwithstanding.
The Body of the Constitution
Part 4 (and last)

Article VII - Established the
Procedure for Ratifying the
Constitution
Bill of Rights
Amendment I
We’ll come back to it.
Amendment II
A well regulated militia, being necessary to the
security of a free state, the right of the people
to keep and bear arms, shall not be infringed.
Amendment III
No soldier shall, in time of peace be quartered
in any house, without the consent of the
owner, nor in time of war, but in a manner to
be prescribed by law.
Bill of Rights
Amendment IV
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
Bill of Rights
Amendment V
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a
witness against himself, nor be deprived of
life, liberty, or property, without due process
of law; nor shall private property be taken for
public use, without just compensation.
Bill of Rights
Amendment VI
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the state and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury, shall be
otherwise reexamined in any court of the United States,
than according to the rules of the common law.
Bill of Rights
Amendment VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.
Amendment X
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.
Amendment XIV
Section 1. All persons born or naturalized
in the United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the state wherein
they reside. No state shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any state deprive
any person of life, liberty, or property,
without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.
Amendment I
Congress shall make no law respecting an
establishment of religion, or prohibiting
the free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a
redress of grievances.
The First Amendment’s Five
Freedoms
1.
Establishment of Religion
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
The First Amendment’s Five
Freedoms
2. Free Exercise of Religion
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
The First Amendment’s Five
Freedoms
3. Right to Assemble
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
The First Amendment’s Five
Freedoms
4. Right to Petition The Government
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
The First Amendment’s Five
Freedoms
5. FREEDOM OF SPEECH AND OF THE
PRESS
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
Making Law in the
Modern World
(Lawsuits)
Some basic legal concepts
1.
2.
3.
4.
5.
6.
7.
Sovereign Immunity
Stare Decisis
Equity v. Law
Torts
Damages
Media Law or
Publishing Law
Internet Law
Damages

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General Damages
Special Damages
• Actual Damages
• Compensatory damages

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Presumed Damages
Statutory Damages
Treble Damages
Punitive Damages
Anatomy of a lawsuit:

Plaintiff (a/k/a someone who is royally
pissed off)

Lawyer (or not)?

Complaint
• Filing fee
• Facts
• Legal theory
Anatomy of a lawsuit:

Defendant (has no choice):

Motion to Dismiss
- or -

Answer
Anatomy of a lawsuit:

Motion to Dismiss Granted:
• Appeal ?

Motion to Dismiss Denied
• Discovery


The power
The nightmare
• Appeal?

Depends on where you are
Anatomy of a lawsuit:
After discovery:

Summary Judgment
- OR –

Trial
- THEN –

Appeal
Complaint
Defendant
Victory -case over, or
on to
appellate
court
Defendant
Moves to
Dismiss
Defendant
Answers
Discovery
Motion granted
-- case over, or
on to appellate
court
5 years later....
Summary Judgment
TRIAL
Appeal(s)
Internet Law
Internet Law includes…
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Content regulation/control
Prior Restraints
Libel
Rights of Privacy/Publicity
Copyright
• Fair Use
Trademarks
Just about everything else
Regulating (Censoring)
Online Content
Regulating Print Publications
Strict scrutiny – a compelling
government interest, narrowly
tailored regulation, and no less
restrictive alternatives. (And
reasonably likely to achieve goal.)

Examples:
• Near v. Minnesota
• Miami Herald v. Tornillo
Regulating Other Media

“[D]ifferences in the
characteristics of new media
justify differences in the First
Amendment standards
applied to them.”
- Red Lion Broadcasting Co. v. FCC (1969)
Regulating Broadcast

Justifications for Regulation of Broadcast (i.e.,
the compelling government interests):
• Scarcity (Red Lion Broadcasting v. FCC)
• “Uniquely pervasive presence in the lives of all
Americans.” Offensive material comes into the home,
“where the individual’s right to be left alone plainly
outweighs the First Amendment rights of an intruder.”
(FCC v. Pacifica)
• Accessible to children (FCC v. Pacifica)
• Indecent (but not obscene) speech “lie[s] at the
periphery of First Amendment concern.” (FCC v.
Pacifica)
Indecency
FCC v. Pacifica:



“The constitutional protection accorded to a communication
containing such patently offensive sexual and excretory language
need not be the same in every context…”
“First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently offensive,
indecent material presented over the airwaves confronts the
citizen, not only in public, but also in the privacy of the home,
where the individual's right to be left alone plainly outweighs the
First Amendment rights of an intruder. Rowan v. Post Office
Dept., 397 U.S. 728. Because the broadcast audience is
constantly tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program content…”
“Second, broadcasting is uniquely accessible to children, even
those too young to read. Although Cohen's written message
might have been incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's vocabulary in an instant.
Other forms of offensive expression may be withheld from the
young without restricting the expression at its source.”
Regulating Broadcast

Equal Time Rule
• Bona fide newscast exception
• Ex: “Law and Order”/Fred Thompson
• Contrast: Miami Herald v. Tornillo

Political Advertising
• “Reasonable” access
• Lowest unit charge

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
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Fairness Doctrine
Children’s Programming
Violence
Indecency
Regulating Cable Television

Justifications for regulation:
• scarcity? less so than broadcast
• pervasive? somewhat less so than broadcast
• New justification: monopoly


Must carry rules (content neutral)
Intermediate scrutiny:
• an important or substantial governmental
interest; the governmental interest is
unrelated to the suppression of free
expression; and the restriction on speech is no
greater than is essential to the furtherance of
that interest.
Regulating the Internet

Where does the Internet fall under U.S.
law?
•
•
•
•
•

scarcity?
pervasive?
accessible to children?
indecent (or obscene)?
monopoly?
Does it matter?
• U.S. doesn’t control the Internet
• Yahoo in France; online gambling sites

Open Access
Is the Internet different?
Should it be different?
General Rule…

Applicable legal principles are
generally no different on the Internet
• Common law evolved through print


It is much easier to violate someone
else’s rights online
The law is evolving
Libel/ Rights of Privacy and
Publicity

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
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Who should you be able to sue?
Where should you be able to sue?
Are damages different when the libel
or invasion of privacy is online?
Is there any class of people/entity
deserving of special protection?
Copyright
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What rights should owners of content have to
control use of their content online?
Should the placement of content on the internet
change the fair use calculus?
Should linking be a copyright infringement?
Should framing be a copyright infringement?
Who should have the responsibility for policing
infringement?
Who should you be able to sue for infringement?
Trademarks


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Should you be able to use another’s
trademark in your domain name?
Should you be able to use a
competitor’s trademark to trigger
your advertisements?
To what extent should you be able to
incorporate a trademark into your
own content? Should it be different
online?
Other Vexing Questions

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Is there or should there be a right to speak
anonymously online?
Should users be notified when they are viewing
an advertisement or commercial message?
Should one country be able to regulate websites
hosted in another but accessible in the first?
Should the onus be on publishers to filter
geographically or subject themselves to the laws
of any country in which their site can be
accessed?
“Real Life” Examples – Do any of
these change your views?

mygazines.com
• site encourages people to copy and upload popular
magazines that are on current newsstands
• domain name is registered in Anguilla

McAlester Watercooler
• District attorney filed a police complaint after reading
what people wrote about him on a message board.
• Comments included that he (falsely) is a drug dealer and
killed a family in a car accident while high on drugs
• Local police showed up at administrator’s door with a
subpoena seeking identifying information about 35
people who posted on the site.
“Real Life” Examples – Do any of
these change your views?

Wargo v. Lavandeira (a/k/a Perez Hilton)
• E-mail of the day
• In violation of site’s posted privacy policy,
posted the complete e-mail, including her
name, work e-mail address, and company
name.

Jane Doe v. FriendFinder Network, Inc.
- “Adult FriendFinder.com” identifies itself as
“the World’s Largest SEX and SWINGER
Personal Community.”
- Biographical information reasonably identified
plaintiff.