Midterm

Question 1

What is common law?

Answer 1

Also known as judge-made law, Inductive system of law – a legal rule is developed after deciding a number of similar cases (precedent)

Question 2

What is unique about the Supreme Court as opposed to other federal courts?

Answer 2

They have original and appellate jurisdiction, only court that was put in place by the U.S. Constitution

Question 3

What is a writ of certiorari?

Answer 3

only way to appeal to the Supreme Court

Question 4

How many justices does it take to bring a case to the Supreme Court?

Answer 4

at least 4

Question 5

US Court of Appeals, how many?

Answer 5

13 districts

Question 6

What is a trial before a judge without a jury?

Answer 6

bench trial

Question 7

When does a court generally overrule precedent?

Answer 7

Societal changes, changes in SC justices, vague laws, etc.

Question 8

1st Amendment adoption? Year?

Answer 8

Ratified in 1791

Question 9

Near v. Minnesota

Answer 9

Prior restraint on publication, newspaper was considered a public nuisance because they accused public officials of organized crime. SC sided with the paper

Question 10

Net Neutrality

Answer 10

The concept that Internet service providers treat all traffic and content similarly, and not charge more money for or blocking access to faster services

Question 11

Snyder v. Phelps

Answer 11

Westboro Baptist church, protesting of military funerals. SC decided that Westboro Baptist church has the right to protest because although the speech is heinous, it has to be protected. States have put up time, place, and manner restrictions in order to combat the protests at a state level.

Question 12

Citizens United v. Federal Elections Commission

Answer 12

Campaign contributions, set up that corporations are people with individual rights. Those people who rich corporations support have more time/money for advertising.

Question 13

Time, place, and manner criteria (4)

Answer 13

Rule must be neutral as to content

Cannot constitute a complete ban on a kind of communication

State must articulate a substantial reason to curtail/monitor the speech

Law has to be narrowly tailored, only specific to that specific speech in that specific case

Question 14

Libel-generally criminal or civil law?

Answer 14

civil law

Question 15

Single mistake rule

Answer 15

Stories that suggest a pattern of incompetence are defamatory, but a single mistake may not be considered defamatory

Question 16

5 elements of libel that the plaintiff must prove

Answer 16

It was published

Defendant was at fault

Material was defamatory

Material was false

Material identified the plaintiff

Question 17

Sullivan v. NYT

Answer 17

NYT ran an ad calling out the police commissioner in Alabama, Sullivan sued the NYT for libel. SC decided that he was a public figure and he needed to prove the paper published these things with actual malice, rather than just negligence. Set up the “actual malice standard”

Question 18

Public figures-different kinds, explain

Answer 18

All-purpose public figure- say his or her name, everyone knows it. People who are public officials

Limited-purpose public figure- people who chose to temporarily step forward into the limelight for a certain situation/area and are only considered public figures in the area they put themselves forward.

Question 19

Know the difference between negligence and actual malice

Answer 19

Actual malice- higher burden of proof, has to prove reckless disregard for the truth and knowingly false. Only used for public figures

Negligence- lower burden of proof; has to prove negligence. Used for private people

Question 20

Understand state of limitation libel rules

Answer 20

In a libel action, a statute of limitations begins when: The material is published or broadcast for the first time. Magazines are distributed to a substantial portion of their audience, not the date printed on the publication.

Varies from state to state, usually only 1-2 years

A libel suit can be brought in any state in which the libel has been circulated regularly

Question 21

Difference between absolute and qualified privilege

Answer 21

Absolute privilege- immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties.

Qualified privilege- A media outlet is protected by qualified privilege if: The material comes directly from the report of a privileged proceeding or document. The material is a fair and accurate summary published or broadcast as a report of the proceedings or documents

Question 22

If there is a criminal libel prosecution-what group is usually brings them forward

Answer 22

Usually brought by police organizations, defended by the government

Question 23

Damages for libel suits—different kinds

Answer 23

Punitive damages- largest damages, not a specific damage, it’s used to make an example of somebody

Actual damages- monetary loss due to loss of reputation or standing in community

Special damages- specific amount of monetary loss

Question 24

Defenses or protections for writing opinion.

Answer 24

Published in an opinion/review section

Rhetorical hyperbole- so outlandish, satire, not a fact, e.g. SNL

Fair comment- Fair comment defense requires three-part test: Is it an opinion? Is it a subject of legitimate public concern? Is there a factual basis for the comment?

Question 25

Ollman and Milkovich tests for distinguishing fact from opinion. Know the differences

Answer 25

Milkovich- 1 part test, can you distinguish this as true or false? If not, it is an opinion Ollman- 4 part test, Can the statement be proved true or false? What is the common or ordinary meaning of the words? What is the journalistic context of the remark? What is the social context of the remark?

Question 26

Incorporation Doctrine

Answer 26

The free speech and free press clauses of the 1st amendment are “incorporated” through the 14th amendment due process clause as fundamental liberties that apply to all levels of government, created by the Gitlow v. NY decision

Question 27

1st Amendment Theories

Answer 27

Absolutist Ad hoc balancing Meiklejohnian Marketplace of ideas Access Self-realization Preferred Position

Question 28

Absolutist Theory

Answer 28

the first amendment presents an absolute or complete barrier to government censorship

Question 29

Ad Hoc Balancing Theory

Answer 29

when free speech and press rights conflict with other important rights, courts must balance these freedoms, case-by-case basis Preferred position balancing- when balancing conflicting rights, speech and press are preferred (given greater weight) than other rights, (courts use this theory more often than any other)

Question 30

Meiklejohnian Theory

Answer 30

Political speech is the most important, people should have the right to protest/petition the government

Question 31

Marketplace of ideas Theory

Answer 31

people should be able to put their ideas out there for others to see, and they should be able to see others’ ideas as well

Question 32

Access Theory

Answer 32

the government should force newspapers, magazines, and broadcasting stations should open their pages and studios to the ideas and opinions of their readers, listeners, and viewers

Question 33

Self-Realization Theory

Answer 33

Speech can be inherently valuable to a person regardless of its effect on others. Example: an individual who wears a shirt with the name of his/her favorite political candidate is realizing and expressing his/her own identity through speech

Question 34

Brown v. Entertainment Merchants Association

Answer 34

Violent video games, trying to restrict that type of speech, struck down a California statute that prohibited the sale or rental of violent video games to minors and required their packages to carry an “18” warning label

Question 35

Brandenburg v. Ohio

Answer 35

KKK Leader printed something against Ohio sheriff. SC said it wasn’t a specific/imminent threat. Has been used a lot as precedent for cases. Culminated thoughts from previous cases over the years, deciding that there has to be an imminent threat. “I’m going to kill somebody”.

Question 36

Prior Restraint on speech-4 rules when the government engages with it

Answer 36

Prior restraints on speech by the government are presumptively unconstitutional. The burden falls on the government to prove in court that a prior restraint is justified. The government's burden is high, with courts often required it to prove there is a compelling interest or an interest of the highest order justifying the restraint. The scope of any prior restraint must be very narrow, so as not to stop publication of any more speech than actually is necessary to effectively serve the governments's allegedly compelling interests. Speech that falls outside the scope of the 1st amendment protection can be restrained by the government but only after a judicial proceeding in which a court has determined that the speech is not protected.

Question 37

Tinker v. Des Moines

Answer 37

set the Tinker standard. Kids wore black armbands to protest the Vietnam war, they were suspended. SC held that because the speech was not disruptive, the school could not limit the speech, and a student’s freedom of expression does not stop at the schoolhouse gates.

Question 38

Barber v. Dearborn Public Schools

Answer 38

Bush T-shirt, kid was asked to remove it, the SC decided in favor of the kid when they applied the Tinker standard, it wasn’t directly disruptive, and it was political speech.

Question 39

Hazelwood

Answer 39

school newspaper wrote an article about teen pregnancy, school wanted to censor it. SC decided that schools do have the right to censor because it is part of the school day/process

Question 40

Bethel School District v. Fraser

Answer 40

boy gave sexually suggestive speech about his friend in an assembly. SC decided against the kid after they applied the Tinker standard. It was disruptive, the assembly was a captive audience, and they were not able to leave.

Question 41

Morse v. Frederick

Answer 41

bong hits for Jesus case, SC sided with the school

Question 42

Son of Sam law

Answer 42

42 states and the federal government have laws that stop felons from receiving money that might be earned by selling stories about their crimes, most son of sam laws are unconstitutional because they are not narrowly tailored, so they prohibit the felon's freedom of speech

Question 43

How does the Supreme Court decide if a reporter exhibited a reckless disregard for the truth?

Answer 43

Whether there was time to investigate the story or whether the material had to published quickly Whether the source of the information appeared to be reliable and trustworthy Whether the story itself sounded probable or far-fetched

Question 44

Preferred Position

Answer 44

Freedom of expression should be more important than other freedom