Exam 1 Flashcards
(195 cards)
1
Q
What is a system of rules intended to make society run more smoothly (with a clear understanding of what people can and can’t do)?
A
Law
2
Q
What is a judge-made law, a rule that is reached after considering many cases? Reliance on precedent. Applies legal justice principles to common circumstances.
A
Common Law
3
Q
What type of law is intended to ensure fairness (that the outcome is fair)? A prohibition on a specific something?
A
Equity
4
Q
What are examples of equitable or prospective relief?
A
Injunctions, restraining orders
5
Q
What is a federal, state or local law enacted by a legislative body and interpreted by courts? These laws must spell out criminal penalties.
A
Statutes
6
Q
What is state and federal law that is usually hard to change? The US one is superior to all other sources of law.
A
Constitution
7
Q
What laws are created by government agencies and are based on authority defined by constitution or statute?
A
Executive orders and administrative regulations
8
Q
What can courts do with executive orders?
A
Courts must be deferential to the agencies’ expertise, but can still enforce statutes and constitutions.
9
Q
What type of law are treaties?
A
International law
10
Q
How influential are other nations’ laws?
A
They can have an influence, but only as to the extent courts choose to follow them and they are consistent with constitutions and statutes. Statutes not enacted by specific government are not legally binding.
11
Q
What type of court is the place where a case begins and an initial conclusion is reached?
A
Trial courts
12
Q
What type of courts can review decisions and reconsider decisions?
A
Appellate courts
13
Q
What type of courts have the most precedent values?
A
Appellate courts
14
Q
Do federal and states have their own courts?
A
Yes, there are multiple court systems
15
Q
Can a federal court over rule a state court?
A
Only if a state court is dealing with a federal issue. Otherwise, no.
16
Q
What type of courts determines facts and review law?
A
Trial courts. They typically have a single judge
17
Q
What type of court generally only reviews the law, but the judges decide alone?
A
Appellate courts. Typically a panel of judges.
18
Q
In an appellate court, what must the judges base their decision upon?
A
Must decide on trial court record, unless facts are clearly erroneous.
19
Q
What is the federal court system’s jurisdiction?
A
Limited jurisdiction includes “diversity” (2 parties from different states: to avoid biases from the case being heard in one state)
20
Q
How are federal courts created?
A
Except for the Supreme Court, courts are created by Congress
21
Q
What type of federal courts are trial courts? How many per state?
A
Federal district courts. At least one per state, a single judge hears the case.
22
Q
How does the federal circuit courts of appeals work? How many are there?
A
13 circuits. Typically by region. Panel of three judges hear most cases, but can hear en bac (with a larger group of judges)
23
Q
Are all courts required by law?
A
Only the Supreme Court is required by the Constitution
24
Q
What circuit is Ohio in? How is Ohio divided?
A
6th circuit, divided by North and South
25
Is a rule in a circuit binding?
A ruling is a binding precedent for that individual circuit.
26
From the bottom up, what does the pyramid of courts look like?
- district courts
- federal circuit courts of appeals
- US Supreme Court
27
How do cases get to the Supreme Court?
The Rule of Four
28
What is the rule of four?
Four of the nine judges grant a writ of certiorari. The decision is based solely on a legal document
29
What is a writ of certiorari?
An appeal to the Supreme Court to hear a case
30
What are some of the reasons the Supreme Court may decide to hear a case?
- Decide partly on interest and an obligation to clarify the law
- If justices believe it is an issue that may come up more frequently until the law is settled
31
Does the SC look like the US population?
No
32
What is the final decision reached by the court?
Opinion of the court (Not necessarily a majority, but is the decision the most justices made)
33
What opinion is that of an individual or group that says they agree with the outcome, but not the reasoning of the majority?
Concurring opinion
34
What opinion is that of justices who disagree with the reasoning and the outcome?
Dissenting opinion
35
What is an opinion that is the largest share, but not a majority? Is it a strong precedent?
Plurality opinion. It isn't as strong of a precedent as a majority decision
36
What type of opinion is a short unsigned opinion when every one is in agreement (court believes there is not a justification for writing a full opinion)?
Per curium opinion
37
Are SC decisions binding on all other courts?
Yes
38
What is the maximum number of justices that can have a dissenting opinion?
4
39
How do justices make decisions?
Chief justice has one person on each side of the argument write an opinion and they are circulated so justices can make their decisions
40
Do dissenting opinions have precedential value?
No, however they can eventually become the majority opinion down the road
41
What type of opinions are more likely to be overturned in the future?
Pluralities. More often the dissenting opinions of these cases are cited in future arguments
42
How are case names listed?
Always one party v. another party
43
In citations, what does aff'd mean?
Affirmed (upheld the lower court decision)
44
In citations, what does cert. denied mean?
Means the Supreme Court didn't agree to hear a case
45
Who sues who in a civil lawsuit?
Plaintiff (private) sues a defendant. Plaintiff files a complaint or pleading and a defendant files an answer
46
How are civil cases decided?
If facts are in dispute, the case can go to a jury. If facts are in agreement, the case can be decided by a judge
47
What are parties called when they are asking a higher level court to consider a case?
appellant/petitioner v. appellee/respondant
48
What are people trying to "win" in a civil case?
Money damages and/or injunctions
49
What do juries determine?
They generally determine facts, not how the law applies
50
Who initiates criminal actions?
The state (prosecutor, state's attorney)
51
In criminal actions, when indicted by a grand jury, what do they decide?
The jury is called to weigh evidence and determine whether someone should be charged (Doesn't occur for all cases)r
52
Are criminal actions in front of a jury?
Typically because it is a constitutional right
53
What is the verdict in criminal actions?
Guilty or not guilty
54
Does a verdict of not guilty prove innocence?
Not necessarily. It can mean there just wasn't enough evidence
55
Why do criminal cases require more proof?
Because the penalties are jail time, fines, probation, etc. and are more serious because they can lead to a loss of freedom. So the burden of proof is higher
56
How are state courts structured?
Typically set up similar to federal courts (trials, appeals and state SC)
57
What is the Ohio court hierarchy from top to bottom?
- Supreme Court of Ohio
- Ohio District Courts of Appeals (12 districts)
- Ohio Court of Claims
- Ohio Courts of Common Pleas
- Ohio Municipal Courts
- Ohio County Courts
- Ohio Mayor's Courts
58
Where did the 1st Amendment begin? Explain the case.
Trial of John Peter Zenger
- Charged with seditious libel, criticism of government
- he ran a politically opinionated newspaper, he criticized government, and that was specifically banned by law
- his lawyer suggested that the jury should refuse to apply the law if they didn't believe in it (jury nullification)
- Truth should be a defense for defamation
- But the case had no precedential value because the US wasn't a country yet
59
What part of the Constitution has the 1st Amendment? What part of the Amendment are we focusing on?
The Bill of Rights; Congress shall make no law abridging the freedom of speech or of the press
60
What are some reasons the 1st Amendment was created?
Country was formed by revolutionaries who feared an all powerful government. Government can't silence criticisms of the people because they are there to serve the people.
61
What is the 1st Amendment theory that states expression is so important and fundamental that it should be absolutely protected?
Absolutist
62
What is the 1st Amendment theory that states that the only way people can make wise choices is if their ability to get information is protected? However, this theory deals only with information relating to self government.
Meiklejohnian
63
What is the 1st Amendment theory that states press is like a 4th branch of government and it creates a mechanism for avoiding corruption and abuse by government?
Watch dog/Check on government power
64
What is the 1st Amendment theory that states if people are given the opportunity to express themselves they are less likely to participate in violent and armed insurrection. "steam valve": People can release tensions
Stable change
65
What is the 1st Amendment theory that is most cited and states the more ideas and opinions people are exposed to the more likely they will be able to find the truth? (truth is fluid and doesn't stay the same, and lack of expression won't let it changes) Exposure to the widest range of views possible.
Marketplace of Ideas
66
What is the 1st Amendment theory that states expression is necessary so that the public has access to information but doesn't support their means of expressing themselves directly? (let people find info, but not letting them really express themselves)
Access
67
What is the 1st Amendment theory that states expression is good because even if what you are saying is wrong or stupid and has no benefit you are made into a better and more complete person because you can express yourself? You can only become informed when you express yourself
Self-realization
68
What are 4 First Amendment tests?
- Absolute protection
- Ad hoc balancing
- Preferred position balancing
- Strict scrutiny
69
What are the views of absolute protection of the 1st Amend?
This view isn't really supported anymore
- It would protect porn, gov't documents, etc.
- But they say it is giving gov't too much power
- Under an absolutist test:
- Is this a restriction on speech? If yes, then it is against the 1st Amend.
70
What does ad hoc mean?
case-by-case
71
In what 1st Amend test says in each context, court will assess individually and see which side has the stronger argument?
Ad hoc balancing (But it doesn't create much certainty in the law)
72
What is the most common test of the 1st Amend?
Preferred position balancing
73
What test of the 1st states that one side has the preferred position (stronger case), but can be overcome if the other side makes a compelling argument?
Preferred position balancing (Ex: preferred position is protecting speech)
74
What a test to determine whether a regulation is constitutional; the test is used then the regulation is directed at the suppression of expression; under the test the regulation is constitutional if it meets a compelling government interest and is narrowly tailored?
Strict scrutiny (on the content of the speech)
75
What is an overriding interest advocated by the government that must be proved in order for a regulation aimed at suppressing expression to be found constitutional?
Compelling government interest
76
When are time, place and manner restrictions permitted?
When they are not content based, and are not arbitrary (justification is directly satisfied, doesn't overstep bounds)
77
What are three fundamental principles about free expression?
1-Free expression provides benefit to both individuals and societies in which they live
2-Free expression involves protection for views we find abhorrent, not just the views we support
3-Right to free expression does not have to be "earned" but is a fundamental human right
* Not a majority view on what speech should be censored
* You don't lose your right to speak freely
78
What reason for rejecting speech restrictions is that it restricts more speech than they are intended to restrict?
Overbreadth
79
What reason for rejecting speech restrictions is that it doesn't restrict everything that it needs to; doesn't serve the purpose it was created for?
Under inclusiveness
80
What reason for rejecting speech restrictions is that people can't understand what is prohibited (restrictions have to be clear)?
Vagueness
81
What did Gitlow v. New York (1925) say?
- 1st Amend applies to the state and local gov't too
| - Used 14th Amend
82
What does the 14th Amend say?
"Nor shall any state deprive any person of life, liberty or property w/o due process of law nor deny any person w/ its jurisdiction the equal protection of the laws."
*This is not a limitation on private actors
83
What is the test for protecting conduct?
1-Is there is intent to express a message?
If yes...
2-Is there a likelihood that the message be understood?
If yes...
3-Is the gov't regulation intended to suppress expression?
If yes...strict scrutiny applies
If no...immediate scrutiny applies
84
What is intermediate scrutiny?
Government regulations within constitutional power of gov't and further an important or substantial gov't interest and be based on an interest unrelated to the suppression of expression
85
What are words uttered face to face that have a strong likelihood of provoking violence?
Fighting words
86
What did the case of Chaplinsky v. New Hampshire (1942) state?
"Fighting words" not protected by the 1st Amendment. Justification for punishment is disruption, not that the words cause offense or harm person at whom they were aimed (imminent violence)
87
What did the case RAV v. St. Pail (1992) state?
- Ordinance forbade speech that arouses anger, alarm or resentment in others based on race, color, religion or gender
- City argued it was only intended to prohibit fighting words but court rejects as content based because only speech of certain categories was punishable
- Kids charged with putting a burning cross on black's yard
- Gov't can't restrict speech because it is hateful has been the norm
88
What are conclusions about hate speech?
- The fact that speech may be offensive even "hurtful" to many, not a sufficient grounds for overcoming 1st Amend protection
- Trust in the "marketplace of ideas" (right views will win out)
- But "fighting words" may be punished
89
What acts criminalized interference with war effort, obstructing military recruit merit and publishing material intended to cause contempt for the government?
Espionage and Sedition acts
90
What did the cases Schenck v. US and Abrams v. US state?
- courts find little 1st Amend protection
- Special circumstances of wartime
- "clear and present"/"clear and probable"/"clear and imminent" danger test the result of this line of cases
- Justice Brandeis concurrence in Whitney v. California, advocacy not sufficient, there must be incitement, more speech the ideal
91
What did the case Brandenburg v. Ohio state?
KKK leader was criminally charged with advocacy of physical violence in a speech he gave.
-Constitutional guarantees of free speech and free press don't permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions
92
Is advocacy of law breaking inherently unprotected?
No
93
What is the important thing to remember about Brandenburg?
Some advocacy of violence is protected by the 1st Amendment
94
What is providing censorship and restraining something from being published before it is published or aired?
prior restraint
95
The British system of licensing printers was after the advent of the printing press. Why did those who received the gov't license support it?
They were usually people who were loyalists to the king and they also made money for the king.
All others hated it. (Was actually one of the first things protested in the American colonies)
96
Why did licensing end in the US?
Ended as a result of the imprisonment of James Franklin who printed in PA without a license when he was put in jail, Ben Franklin continued his brother's paper
97
Is prior restraint by force?
Yes
98
What is are broadcast/print examples of it?
Broadcasters cannot air vulgar content.
| Gov't preventing newspaper distribution by grabbing piles of papers so less people can read or see it
99
What are 2 things to think about with prior restraint?
Is expression being refrained?
| Is that happening before it is published?
100
What are some reasons why prior restraints are bad?
- Deprives viewpoint from marketplace of ideas (prevents the marketplace from occurring)
- It limits freedom of speech and the press
- They are inherently overbroad
- Give the gov't authority to delay
- Prevent public access to information
- Feed the gov't's propensity toward abuse of power
- System of prior restraints inherently favors the gov't
101
What did the case Near v. Minnesota state?
- Involved the Saturday press
- Minnesota "gag law"'-Told Near they would enjoin (silence) him if he posted lewd, scandalous material
- Jay Near was a racist, anti-semitic, hated Catholics and labor unions
- Charged and taken to court. He argued this "gag law" was prior restraint. SC agreed with him although Near was an asshole
- Although his content was bad, court said they could not restrict him
102
What are some of the consequences of prior restraints?
Not designed to redress wrongs but to censor
- Doesn't allow public to weigh info and decide what to believe
- Thus prior restraints only permitted in exceptional cases(obscenity, incitement to violence, troop movements in war time)
103
What did the case New York Times v. US state?
- Dealt with the Pentagon Papers
- Vietnam War-leaked papers hidden from the public for years
- GOv't bears burden in justifying a prior restraint
- Here it failed to meet that burden
- In a per curium opinion the SC reject the gov't request for a prior restraint although troop movements in wartime was standard
104
How often does the gov't win a prior restraint case?
It is almost impossible for the gov't to win a prior restraint case.
105
What are some things to know about prior restraints?
- Least tolerable form of restriction on speech
- Come with a heavy presumption against validity even when unprotected speech is not an issue
- But prior restraints are not prohibited in every context (can only be enforced as long as item not published)
106
When should prior restraint be allowed in wartime?
When gov't stops info coming out on troops movement in wartime
_statute aimed at prosecuting computer intrusions used to enforce 9-day prior restraint against hackers exposing flaws in system's security
107
What happened with Wikileaks?
An uncensorable wikipedia for untraceable mass document leaking and analysis to assist people who wish to reveal unethical behavior in their governments and corporations. SHould prior restraint might be over due to internet. Gov't can't keep up with new sites.
108
What are 5 things the government must prove in order to justify a prior restraint?
1 Danger is serious and
2 Speech is the cause of the danger and
3 Stopping the speech will stop the danger and
4 No alternative to prior restraint will work and
5 Prior restraint is neither vague nor overbroad
109
What does press freedom around the world look like?
Situation is bad, not many countries have a free press. The situation is not getting better
110
Do public schools have to uphold students' 1st Amend rights?
Yes. Because they are government agencies, public schools are limited by the 1st Amend in their ability to censor
111
Do private schools have to uphold students' 1st Amend rights?
The 1st Amend does not regulate the behavior of private schools. However, state law or school policy can provide legal protections for press freedoms
112
What happened in school court cases historically? Is this still upheld today?
Courts argued schools acted like parents (in loco parentis) and you wouldn't have 1st Amend rights against your parents.
No.
113
What did the court case WV State Board of Edu. v. Barnette (1943) state?
- Requiring students to recite the pledge of allegiance to the flag declared unconstitutional (compelled speech)
- First case to clearly establish that students in school have some 1st Amend protections
- Schools cannot compel students to express things they don't believe in
114
What did Tinker v. Des Moines Independent Community School District (1969) say?
- Supreme Court recognizes that the 1st Amend protects expression initiated by students
- Tinker and Quakers decide to wear arm bands in protest of the war, school enacted policy saying they couldn't
- Students can express their own views in school
- Neither students nor teachers shed their constitutional rights to freedom of expression or speech at the schoolhouse gate
115
What types of student speech are not protected?
- Speech that invades the rights of others (unprotected speech like libel, privacy invasion, obscenity etc.)
- Speech that creates a material and substantial disruption of normal school activities
116
What is required to make material and substantial disruption valid?
- Serious physical disruption generally required
| - Reasonable forecast of disruption or actual disruption required
117
What did the case Bethel School District v. Fraser (1985) state?
- Vulgar, indecent speech in school not protected by the 1st Amend
- Fraser gave speech with several sexual puns
- SC agreed with the school
118
What did the case Hazelwood School District v. Kulmeier (1988) state?
- Paper published stories about issues teens face. Principal objected to stories about pregnancy and divorce.
- SC ruled with the school
- Tinker case was "distinguished": Armbands were non-school sponsored speech. It was independent student expression
- In Hazelwood, it was school sponsored speech. Curricular, school-funded, faculty adviser
- Censorship must be "reasonably related to legitimate pedogogical concerns" must have a reasonable educational justification
- School must still justify the censorship
119
What is a framework for analyzing gov't restriction on speech on public property?
Public forum
120
What are areas set aside for public expression, such as a street?
Traditional public forums
121
What are areas occasionally set aside by government for expression, such as an auditorium?
Designated/Limited public forums (Must show intent of gov't to create the forum)
122
What is government property not opened for public expression, such as military bases, court houses, etc.?
Non-public forum
123
What type of scrutiny applies for each type of forum?
For traditional and limited designated forums, strict scrutiny applies. For non-public, intermediate scrutiny applies, but restriction must be viewpoint neutral
124
What did the case Dean v. Utica Schools (ED Mich. 2004) state?
- Importance of forum for students
- Even under Hazelwood standard, not all censorship is permissible
- Sided with students because paper was operating under a public forum status(students made all the content decisions)
125
What did the case Morse v. Frederick state (2007)?
- The Bong Hits 4 Jesus case
- Student speech that advocates illegal drug use not protected by the 1st Amend, but political speech about drugs (urging legalization) still is
- Case was in favor of the school
126
If a school is going to censor they must show one of what 4 things? What cases did these statutes come from?
1-It creates a material and substantial disruption of school activities or is an invasion of others rights (Tinker)
2-It is pervasively vulgar, lewd or indecent (Fraser)
3-It advocates illegal drug use (Morse)
4-For school sponsored non-public forum expression only Their censorship is viewpoint neutral And is based on reasonable educational justification (Hazelwood)
127
What 7 states have adde extra protections for schools?
Arkansas, California, Colorado, Iowa, Kansas, Oregon, Massachusetts
128
Are the 1st Amend rights of college students stronger?
Yes. Generally courts have said 1st Amend protection no where more important than on a college and university campus
129
What did the case Kincaid v. Gibson (6th Cir 2001) state?
College students should not be treated like high school students when it comes to free expression rights
130
What did the case Papish v. Univ of Missouri (1973) state?
- Univ banned a publication from campus
- Papish was expelled
- Conventions of decency not a good enough justification
- She was protected by the 1st Amend
131
What are indirect forms of censorship that are also prohibited on college campuses?
- Access to funding can't be limited based on viewpoint (Rosenberger v. Univ of VA)
- Can't use funding as a means of censoring (Stanley v. McGrath)
- Almost all indirect censorship rejected (Joyner v. Whitney)
132
Why was defamation law instated?
- Intended to provide alternative to duel to the death
- Allows person whose reputation has been injured to receive compensation (civil libel)
- As a post publication remedy, an alternative to prior restraint (a lawsuit for money damages)
133
What is is called when someone sues an individual or organization for damaging a reputation?
Civil libel
134
What is it called when government declares libel has occurred and brings a claim in court?
Criminal libel
135
Are criminal libel case normal? Can they happen in all state?
They are a rarity, and only a handful of states recognize this statute
136
What does publishing libel mean?
It means you've missed the truth.
137
What is written defamation (or electronic equivalent, including video)?
Libel
138
What is spoken face-to-face defamation?
Slander
139
Are libel and slander national or state law issues?
They are state law issues (can vary from state to state)
140
What is the condensed version of the libel definition?
Publishing false statements of facts that damage someone's reputation
141
What are the 5 elements of libel?
Publication, identification, injury/harm, falsity, fault
142
What element of libel means info was communicated to at least one person other than the person who it is about?
Publication
143
What is publishing libelous statements made by others?
Republication
144
Even if accurately attributed, can you be sued for republication?
Yes
145
Is it possible to publish without actually publishing?
Yes. For example, in questions in interviews
146
When is republication not actionable?
Publishers and vendors: Those who merely distribute works of others (libraries, bookstores, news shops, etc.) are not responsible for defamation in the publications the disseminate, unless they knew the material contained defamatory statements or should have had reason to know that.
147
What are some special protections that exist for the Internet?
Federal law (Communications Decency Act Section 230) provides that Internet service providers (including hosts of websites, chat rooms, etc.) will not be considered the publisher for content created by others and posted, thus protecting them from liability
148
What does the internet protection allow?
Allows for unmoderated comments. Allows for websites that have user-generated content. Without they wouldn't exist.
149
What question should you ask when deciding if a website is liable?
Question is if they are predetermining content. If yes, they aren't off the hook. However, removing or editing content does not make you responsible (example: Removing vulgar comments)
150
What element of libel states that the statement must be "of and concerning" the person who claims they have been libeled?
Identification
151
Is libel an individual injury?
Yes. Person must show they have been identified
152
Do you have to use a name or photo to identify someone?
No. Descriptions alone can identify.
153
If descriptions can identify, should you just make descriptions vague? Why?
No. Insufficient id can result in misidentification, which can result on libel
154
Are group libel cases possible?
Because it is an individual injury, group cases aren't generally allowed under Am. law
155
What does a member of a group have to do to have a successful libel suit?
They must show that they were personally implicated by the statements made?
156
Is a group libel case easier or harder with a larger group?
Harder. Usually no groups larger than 25. The larger the group, the harder it is for one person to have a valid claim that they were identified.
157
What is a good question to ask when deciding whether or not to take out descriptive info?
How big does the info removal make the group I'm talking about? If big enough, you are probably okay, if small, you should be wary.
158
What element of libel states that the statements in question must damage the reputation of the person who is suing?
Injury/harm
159
What do words have to do to harm?
1: Be capable of a defamatory meaning and
2: Have actually conveyed a defamatory meaning
(Harm to rep must be significant)
160
What are examples of statements that are likely to cause harm?
Accusations of: crime/law breaking, sexual activity, personal habits (drug and alcohol abuse included), business reputation (illegitimate activities)
161
What is libel that means the statements on face are libelous?
libel per se
162
What is libel that means statements are not damaging on face? (Need additional info to show damage)
libel per quod
163
What does the innocent construction rule state?
If a statement, considered in context, is reasonably capable of an innocent (non-defamatory) interpretation, then the plaintiff has to prove actual injury to reputation. Only recognized in a few state, Ohio is one of them
-They have to bring witnesses to show damage
164
What element of libel states that for a statement to be libelous it must be false?
Falsity
165
When it comes to falsity, what are the differences between private and public figures?
If the person suing for libel is a private person AND the statements are not a matter of public concern, then he doesn't have to prove falsity, but defendant ALWAYS has truth as a complete defense to a libel claim (but you have to actually prove the truth)
166
What constitutes truth in a libel case?
100% accuracy not required. Only substantial truth necessary.
167
What question should you ask when defining substantial truth?
Did the statement actually published cause greater damage to reputation than the accurate statement would have?
168
Is misquoting always libelous?
No.
169
What is the distinction between fact and opinion when it comes to libel?
Libelous statements must be assertions of fact. Pure opinions, by their very nature, cannot be true or false.
170
How do you recognize opinions?
They are subjective based on the impressions of the person offering them, subject to disagreement, not capable of being proven
171
Are things in a column or web page automatically protected?
No. Not if factual assertions are being made.
172
How do you decide if something is humor/satire?
Would a reasonable reader/viewer/listener perceive the statements as being factual or just as a joke?
173
When it comes to satire, does the author's intent matter?
No. It is irrelevant. What matters is how a reasonable person perceives them
174
What element of libel is a creation of the last century?
Fault
175
What did the case of New York Times v. Sullivan state? (1964)
The 1st Amendment requires libel defendant must be "at fault"
For a public official to win a libel claim, plaintiff must demonstrate actual malice
State libel law must meet constitutional standards
176
What does actual malice mean?
That the defendant knew the statement in question was false or acted with reckless disregard for the truth. This requirement creates a significant barrier to making a successful libel claim
177
Why is some false and damaging speech protected?
- Marketplace of ideas: uninhibited, robust debate of public issues is a good thing
- Criticism of public officials is what the first amend was meant to protect
- public officials have many means to respond to criticisms against them
178
Who is considered an elected official?
- anyone who is elected to any public office
- those who are appointed/hired for government jobs only if they have or appear to the public to have a substantial responsibility for or control over the conduct of gov't affairs
179
What question should you ask when deciding if someone is a public figure?
How important is the job? Does he control public money? How significantly does the job affect others?
180
When does public official status apply?
When the statements relate to the discussion of
- the performance of the person's public duties
- his general fitness to hold that job
181
Do government employees have private lives that are protected?
Yes
182
Who are public figures? What did the case Curtis Publishing Co. v. Butts say about them?
People outside of government who lead debate on public issues should be treated as public officials
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What did the case Gertz v. Welch state?
There are 2 kinds of public figures, all-purpose and limited purpose. SC said that even if plaintiff is a private individual, he must show fault. Most states require negligence
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Who is considered an all-purpose public figure?
- People who occupy such positions of power and influence that they are public figures in all contexts
- Doesn't have to be known by everyone, but a significant segment of the population
- Doesn't have to be national. Can be all purpose in one community only
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Who is considered a limited purpose public figure?
Those who have thrust themselves to the forefront of a public controversy in order to influence the outcome
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What are the three requirements for finding a public figure?
1: Controversy must have existed before publication
2: Person must have voluntarily participated
3: Person must have attempted to influence public opinion
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Can a business be considered a limited purpose public figure?
Yes
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What is defined as whether the publisher exercised a reasonable amount of care in determining the accuracy of the statements?
Negligence
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Is it easier for a libel plaintiff to prove negligence or actual malice?
Negligence
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Who decides what the fault standard is?
Each state does
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What are 4 ways you can show negligence?
- Relied on untrustworthy sources
- Didn't read or misread documents
- Failed to check with an obvious source
- Was careless in editing or handling the news
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What are 2 ways you can show actual malice?
- Show publisher had a high degree of awareness of probable falsity of statement when published
- Provide evidence that publisher entertained serious doubts as to the accuracy of the statements
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What are 4 defenses to libel claims?
- Consent (person knew what was being published and said it was okay)
- Statute of limitations (usually 1 year)
- Privilege ( Fair report of government proceedings)
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Privilege is qualified. What does that mean?
Can be overcome if reporting isn't fair and accurate
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What are the 4 kinds of damages?
- Actual damages (for actual harm to reputation)
- Special damages (for financial loss)
- Presumed damages (no threat of injury required, but actual malice usually is)
- Punative damages (designed to punish)
