Exam 1

Question 1

litigation process

Answer 1

• filing suit
• discovery
• trial and appeal
• your role in defending the suit
• news coverage of the lawsuit

Question 2

court timeline

Answer 2

• suit is filed
• preliminaries (petition and answer; possible motion to dismiss)
• Discovery
• Motion for summary judgment
• Interlocutory appeal
• Trial
• Appeal

Question 3

petition

Answer 3

filed with clerk of the court
Plaintiff: person filing suit
Defendant: Person being sued
This document explains:
- The facts of the dispute: who are the parties, what is the problem, why the plaintiff is looking for relief, what relief is sought
- The law of the dispute: what is the cause of action – legal basis – for the dispute? The petition should allege each element of the cause of action that justifies relief
- The relief sought: what does the plaintiff want to be made whole?

Question 4

motion to dismiss

Answer 4

• Made by defendant
• Typically made before any discovery begins
• Motion argues that the petition, on the facts or the law, does not state a cause of action
• Court only looks at the petition and items of judicial notice to decide the motion – no fact finding

Question 5

answer by defendant

Answer 5

• Responds to factual allegations – admitting or denying them
• Typically will include a general denial
• May include affirmative defenses: reasons why the plaintiff’s claims will fail

Question 6

discovery

Answer 6

legal process of learning the facts underlying the case, parties are allowed to gather information from one another to better prepare the case

Question 7

scope of discovery

Answer 7

(a) in general, may obtain any matter that is not privileged and is relevant (b) documents and other tangible things (c) persons with knowledge of relevant facts (h) statements of persons with knowledge of relevant facts

Question 8

request for disclosure

Answer 8

a party may request disclosure of any or all of the following:
o Correct names of parties to the lawsuit
o Name, address, and telephone number of any potential parties
o Legal theories and factual bases of the responding parties claims or defenses
o Amount and any method of calculating economic damages
o Name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case
o Any witness statements

Question 9

document requests

Answer 9

o Can include electronic documents
o Notes, emails. Drafts will all be requested
o Personal calendars, cellphone records, texting records, social media entries
o Voicemails
o Anything that did exist, but was deliberately destroyed after suit was filed presumed harmful

Question 10

interrogatories

Answer 10

written questions directed at a party to elicit relevant information

Question 11

request for admissions

Answer 11

requests that a party admit certain facts so they are no longer in dispute

Question 12

depositions

Answer 12

o Sworn testimony, under oath, in response to questions similar to those that could be asked at trial
o Goal is to discover, confirm, and lock in a witness’s testimony
o The hardest questions may very well come in the deposition, not in the trial

Question 13

motion for summary judgement

Answer 13

when all or most of the discovery is finished, one party may move for a summary judgement – appropriate where the undisputed facts show that under the law a party is entitled to win the whole lawsuit or some portion of it
- Decided by court

Question 14

trial

Answer 14

• Occurs if there are fact issues that must be resolved for the court to enter judgement
• Judge decides law, procedural and evidentiary issues during trial – the fact finder decides the facts used by the judge to create a judgment

Question 15

appeal

Answer 15

• After trial court enters final judgement, typically there is an appeal as of right
• Appeals court reviews the legal rulings and legal adequacy of the facts underlying the factfinder’s verdict
• Appeals court does not hear new evidence; just reviews what was before the trial court

Question 16

subject matter jurisdiction

Answer 16

type of legal issues over which the government body has authority

Question 17

federal system

Answer 17

states have authority over some matters, federal government has authority over others, and sometimes they are shared authority

Question 18

federal presumption

Answer 18

in some instances, fed gov has exclusive jurisdiction, preventing the state from making law in that area

Question 19

federal courts

Answer 19

constitution creates supreme court, congress creates the other federal courts, many communications law disputes end up in federal court because of diversity between plaintiff (local resident) and defendants (national news organizations)
o Have limited jurisdiction in 2 areas:
 Federal questions: matters that arise under US laws, federal agencies, or the US constitution
 Diversity: suits between citizens of different states that involve more than $75000 in damages
o Types of federal courts:
 US district court: federal trial court, 94 district courts – at least one in each state – with numerous divisions (30 different courts and judges in Texas)
 US court of appeals: intermediate appellate courts for the federal system
• 13 circuits (regional 1-11 plus the DC circuit and the federal circuit)
• Texas is in the 5th
 US supreme court

Question 20

state jurisdiction

Answer 20

powers not granted to federal government reserved to the states, many fields of law relevant to communications are state law concerns-contracts, defamation, invasion of privacy, intentional infliction of emotional distress, incitement claims are mostly decided under state law
o States have their own court systems:
 Trial court
• Texas has JoP, county courts, and district courts
 Intermediate appellate court
 State supreme court

Question 21

personal jurisdiction

Answer 21

authority to make and administer law over a person, territorial – what is the physical range of the authority the governmental body holds and who is under that authority

Question 22

specific jurisdiction

Answer 22

lawsuit arises out of acts purposely committed in that jurisdiction

Question 23

general jurisdiction

Answer 23

defendant has presence in the state that justifies a court asserting jurisdiction over them
o limited to where the defendant has a presence such as his/her home/main place of business or where they are incorporated
o e.g.: someone lives in Texas but commits a crime in Florida, Texas can sue

Question 24

jurisdiction in cyberspace

Answer 24

• pre-internet cases had said that simply making a phone call or sending a fax into a state wasn’t enough
• same principle applied to internet and web applications; simply having a passive website waiting for visits not enough
• making a lot of phone calls and seeking business in a state or closing deals in a state would be enough
• most courts now require deliberate acts directed to communicating with someone in the state for an internet presence to establish jurisdiction

Question 25

precedent

Answer 25

provides for stability and continuity by relying on previous decisions - How Precedent Works: o Binding precedent only for courts in the same jurisdiction or judicial system o Texas courts are controlled by a higher Texas court, a NY case even on identical facts, is not controlling on Texas courts, although they might be persuaded o Texas Supreme Court- our highest civil court – is not bound by decisions of Texas intermediate appellate courts although they might be persuasive o Highest courts can decide not to follow its own precedent – can overrule previous decisions o Federal law takes precedence over state law

Question 26

doctrine of precedent

Answer 26

prior decision is a governing model for future cases under identical or similar facts, courts are bound by their own decisions or those of their superior courts

Question 27

what is law

Answer 27

set of rules for human conduct set up by a duly constituted authority - Importance: o establishes norms and procedures for consistent, neutral decision making o a contract that governs interactions between citizens and between citizens and their government o legal rules constrain both citizens and government to enhance liberty, freedom, and justice for all - Purpose: o Sets out the standards by which we live in society o Police, courts, and criminal law offer society a way to protect its member and enforce its laws o Civil laws and courts to enforce them provide a means for individuals and entities to enforce agreements and seek compensation for wrongs o Both processes-civil and criminal – afford us a means to resolve disputes without having to engage in self-help - Principles of Law According to World Justice Project: o All individuals and private entities are accountable under the law o Laws are fair, clear, public, and stable o The processes by which the laws are enacted, administered, and enforced are open, robust, and timely for all o Those who apply the law are competent, ethical, independent, neutral, and diverse

Question 28

first amendment history

Answer 28

o 1440 – Gutenberg invents the printing press o Governments, recognizing the power of the free press, sought to control that power  Licensing of printing press government decides who gets to say what before they say it  Prior restraint o History shows a trend favoring the first amendment values over fears of overthrowing the government or causing violence o Progress was very slow until the mid 20th century o Conduct that goes beyond just threatening violence and even some forms of violent threats is still actionable

Question 29

why free speech

Answer 29

o Discovery of truth- in the open marketplace of ideas, truth will prevail o Free and continual expression of ideas enhances voter’s ability to participate meaningfully in democracy o Deters and brings to light abuses of power by public officials and others o Social stability- allow society to see its problems and make adjustments and acts as an outlet for displeased individuals o Natural or ethical right of individual human beings

Question 30

origin of first amendment

Answer 30

o James Madison authored it o Thomas Jefferson Inspired it o Did not originally extend to states

Question 31

Alien and Sedition Acts of 1798

Answer 31

o Forbid false, scandalous, and malicious publications against the US o Was passed because Jeffersonian newspapers were relentlessly attacking president John Adams and his government for its actions with regard to France, which was upset over the US ties to Britain o Expired in 1801 and new president Jefferson pardoned all convicted under them

Question 32

Espionage Act of 1917

Answer 32

o Primarily designed to prevent spying, but also included a prohibition against any attempt to interfere with or undermine the US armed forces

Question 33

states action

Answer 33

o Gitlow and later cases say the 14th amendment applies to the states, so state, county and city laws affecting speech can be reviewed to see if they violate the first amendment o Courts are state mechanisms so when the court seeks to enforce a ruling against a party that violates that party’s first amendment rights that is state action o First amendment application is a limit on government action o Can include laws, court orders, and judgements and actions of government officials o No effect on private actors

Question 34

sedition acts of 1918

Answer 34

o Addition to the espionage act that forbid disloyal, profane, scurrilous, or abusive language about the US government or its armed forces

Question 35

first amendment application

Answer 35

o When government tries to regulate speech because of its content, topic, or subject matter that is called content-based regulation o Abridging freedom of speech – laws that may abridge speech because of its content are examined with strict scrutiny

Question 36

strict scrutiny

Answer 36

judicial review says the proposed government speech regulation can be valid only if • There is compelling interest in regulating the speech • The law is narrowly tailored to serve that compelling interest in the least restrictive way

Question 37

intermediate scrutiny

Answer 37

restraint on speech allowed if it furthers a substantial interest and is no broader than is necessary to advance that interest • O’Brien Test: content neutral if o Is unrelated to the suppression of speech o Advances an important government interest o Is narrowly tailored to achieve that interest while only incidentally restricting protected speech

Question 38

o'brien test

Answer 38

content neutral if o Is unrelated to the suppression of speech o Advances an important government interest o Is narrowly tailored to achieve that interest while only incidentally restricting protected speech

Question 39

hate speech

Answer 39

- Name calling, slurs, and epithets intended to demean others because of their identity - While there are laws intended to heighten penalties for engaging in hate speech these laws are generally unconstitutional

Question 40

true threats

Answer 40

- Encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals - The speaker need not actually intend to carry out the threat - Criteria: o Direct the threat toward one or more individuals o With the intent of causing the listener to dear bodily harm or death o This requires proof that the speaker had conscious intent to threaten, not enough to prove that a reasonable person would perceive the communication as a threat

Question 41

fighting words

Answer 41

- Insults with little expressive content probably still qualify as fighting words - “no essential part of any exposition of ideas and is of such slight social value as a step toward truth that no benefit that may be derived from it is clearly outweighed by the social interest in order and morality” - Not protected - Government interaction allowed just need some rational reason

Question 42

unprotected speech

Answer 42

- Obscenity - Child pornography - Perjury - Fighting words - False and misleading information - Libel published with requisite degree of fault

Question 43

seditious libel

Answer 43

it is illegal to publish anything critical of the government - This was used by the British to punish those who spoke out against the government’s practices

Question 44

incitement

Answer 44

- Test requirements: o Advocacy is directed to incitement- did the speaker intend for immediate action from his words? o Imminent action- is the time between the speech and the action close or proximate o Lawless action that violates a criminal statute must be involved o Is it likely that lawless action will occur as a result of the speech

Question 45

advertising: first amendment protection

Answer 45

o Economic motive does not mean the speech lacks importance or social merit

Question 46

current test for regulations on commercial advertising

Answer 46

o Is the commercial message either misleading or related to unlawful activity? If so it is not constitutionally protected and may be banned o If the advertising at issue is truthful commercial advertising:  Does the government assert a substantial interest to be achieved by the restriction on speech?  Does the restriction directly advance this interest?  Is the restriction a reasonable fit between the government’s interests and the means chosen to further those interests?

Question 47

how to tell commercial advertising from political advertising

Answer 47

o Is it an advertisement? o Does it refer to a specific product? o Does the speaker have an economic motivation for speaking?

Question 48

why is separating commercial advertising from political advertising important

Answer 48

o Political/ Social speech protected by the first amendment – regulations are judged by strict scrutiny o Commercial speech, while protected by the first amendment judged by a lesser standard o Supreme Court has granted more first amendment protection for truthful commercial speech about legal products that may not be good for you