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1

The First Amendment

- Doesn’t protect defamation, or speech that harms the reputation of another.
- It gives us freedom of speech, the right to peacefully assemble, prohibits the government from aiding the establishment of a religion
- We all individually have these rights. Corporations also has its own rights, including first amendment rights, depending on which kind of speech it is
o Corporations now have freedom of political speech, meaning the government can’t pass a law to keep them from saying what they want politically
- It also doesn’t protect obscenity (1973 case Miller v. California)
- Protects corporate speech in certain circumstances. It protects corporate political speech to the same extent that it protects individuals’ political speech. The Central Hudson test determines whether the First Amendment protects particular corporate commercial speech.
- Contains the establishment clause, which states that Congress may not make laws respecting an establishment of religion, and the free-exercise clause, which states that Congress may not make laws prohibiting the free exercise of religion.

2

Establishment Clause

One of two provisions in the First Amendment of the US Constitution that protect citizens’ freedom of religion. It prohibits the establishment of a national religion by Congress and the preference of one religion over another or of religion over nonreligious philosophies in general.

3

Free-exercise clause

A clause in the First Amendment of the US Constitution that states that government (state and federal) cannot make a law “prohibiting the free exercise” of religion. This clause is interpreted to include absolute freedom to believe and freedom to act that may face state restriction.

4

The Fourth Amendment

- Guarantees citizens the right to be “secure in their persons, their homes, and their personal property.”
- Prohibits government from conducting unreasonable searches of individuals and seizing their property to use as evidence against them.
- Protects corporations and places of business
o Also, there is an exception to having to have a search warrant. If an industry has a long history of pervasive regulation, a warrantless search is not unreasonable.
- Probable cause: has to have facts that they know that leads them to believe they have reason to convict them
- Protects both corporations and individuals from unreasonable government searches and seizures. Although administrative searches generally require a warrant, administrative agencies may inspect some industries without a warrant to ensure compliance with industry regulation.

5

The Fifth Amendment

- Protects against self-incrimination, meaning that in a criminal case, the defendant does not have to testify in court as a witness against himself or herself.
- “Plead the fifth” – you don’t have to talk if you thing you might incriminate yourself
- Gives all US citizens protection from the US Government
- Protects against double jeopardy, which means the government cannot try a person more than once for the same crime.
- Corporations don’t receive protection against self-incrimination, though sole proprietors do receive this protection.
- States that government cannot take an individual’s life, liberty, or property without due process of law. There are two types of due process: procedural due process, which focuses on rules for enforcing laws and entitles individuals to notice of legal action against them, and substantive due process, which requires government to have a proper purpose for enacting laws that restrict individuals’ liberty or the use of their property.
- States that if government takes private property for public use, it must compensate the owner. The extent to which some government regulations constitute takings, however, generates much litigation.
- Includes a privilege against self-incrimination, although the provision does not apply to corporations. Only individual citizens and sole proprietorships may exercise this right.
- Guarantees individuals equal protection under the law. Courts use three standard of scrutiny in equal protection cases: (i) strict scrutiny, to analyze government actions that abridge fundamental rights or that include suspect classifications; (ii) intermediate scrutiny, to analyze classifications based on gender or on legitimacy of children; and (iii) the rational-basis test, to analyze classifications involving other matters.

6

Ninth Amendment

Along with the First, Third, Fourth, and Fifth Amendments, this amendment provides individuals with a right to privacy.

7

Fourteenth Amendment

- Applies the due-process clause to state governments and contains the equal protection clause, which prohibits states from denying the equal protection of the laws to any citizens.
- Equal protection clause
o Protects states from denying equal protection of laws to its citizens
- Makes sure the government doesn’t treat its citizens unfairly or different from one another.

8

Equal protection clause

A clause in the Fourteenth Amendment of the US Constitution that prevents states from denying “the equal protection of the laws” to any citizens. This clause implies that all citizens are created equal.

9

Strict scrutiny

The most exacting standard of review used by the courts in determining the constitutionality of a statute; requires a compelling government interest and the least restrictive means of attaining that objective.

10

Intermediate scrutiny

A standard of review under which a law must be necessary to achieve a substantial, or important, government interest and it must be narrowly tailored to that interest.

11

Rational-basis test

The lowest standard of review; requires a law to be designed to protect a legitimate state interest and be rationally related to that interest.

12

Actus reus

Latin for “guilty act”; a wrongful behavior that is associated with the physical act of a declared crime.

13

Mens rea

Latin for “guilty mind”; the mental state accompanying a wrongful behavior.
- Show intent with witnesses
* The government has to show both

14

Criminal law vs. Civil law

Criminal law- to punish
Civil law- to compensate

15

Liability without fault

A legal term that imposes responsibility for damages regardless of the existence of negligence. Also called strict liability

16

Felony

A serious crime, such as murder, rape, or robbery, that is punishable by imprisonment for more than one year or by death.

17

Misdemeanor

A crime that is less serious than a felony and is punishable by a fine and/or imprisonment for less than one year.

18

Petty offence

A minor crime that is punishable by a small fine and/or imprisonment for less than six months in a jail.

19

White-collar crime

A variety of nonviolent illegal acts against society that occurs most frequently in the business context.
- How can you be punished for one?
o Impose a fine (most common)
o Community service
o Jail time
o House arrest
o Can’t work in the same job again

20

Bribery

A corrupt and illegal activity in which a person offers, gives, solicits, or receives money, services, or anything of value to gain an illicit advantage.
- Both the person who bribes them and the person who accepts the bribe gets in trouble
- Elements of bribery: offer, give, promise to, or receive something of value
- If you bribe a foreign official, you break a federal law.

21

Extortion

A criminal offense in which a person obtains money, property, and/or services from another by wrongfully threatening or inflicting harm on the other’s person, property, or reputation. Also called blackmail.

22

Fraud

An intentional deception that causes harm to another.
- Intentionally told a lie
- If you think you were telling the truth, you didn’t commit fraud

23

3 elements that the government would have to show to prove someone committed fraud:

1. Intent to deceit
2. Has to be reasonable (example: buying ocean front property in Tennessee is not reasonable)
3. Damages- someone has to have been hurt by what you said

24

Insider trading

(type of fraud) The illegal buying or selling of a corporation’s stock or other securities by corporate insiders, such as officers and directors, in breach of a fiduciary duty of some other relationship of trust and confidence, while in possession of material, nonpublic information about the security.

25

Insider trading case

Scammell
- Buying Marvel's stock
- Insider trading can be tipping some information
- His girlfriend could also get in trouble because she was an insider who told information
- or it can be security trading by someone who misappropriated information (stealing it)

26

Stock option backdating

The practice of altering the date a stock option was granted, to a usually earlier (but sometimes later) date at which the underlying stock price was lower.
- type of fraud

27

False pretense

The illegal obtaining of another’s property by making a materially false representation on an existing fact, with knowledge of the falsity of the representation and with the intent to defraud.

example: when someone says to give them money in exchange for something and you do, but you never receive anything.

28

Forgery

A criminal falsification by imitating, impersonating, or altering a real document with the intent to deceive or defraud.
- A document that changes the legal rights of another person
- Ex. Drafting a deed and signing someone else’s name when they really didn’t approve of it- changed the person’s legal rights

29

Mail fraud

When you use the mail to defraud someone. When you put a fraudulent document in the mail.
- Government has to show
o Intent to defraud
o Use mail to throw the scheme
- Doesn’t just have to be the postal service; can also be FedEx or UPS

30

Healthcare fraud

- Usually committed by healthcare providers
o They’re defrauding patients
- They submit fraudulent statements/bills