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52 Cards in this Set
- Front
- Back
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What is the source of American law?
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The constitution; common law, the law of equity; the statutory law; and the rulings of various executives, such as the president, mayors, and governors.
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equity law
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Equity is another kind of judge-made law. The distinction today between common law and equity law has blurred.
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statutory law
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o Created by elected legislative bodies at the local, state, and federal levels.
o Statutes tend to deal with the problems affecting society or large groups of people, in contrast to common law, which usually deals with smaller, individual problems. |
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constitutional law
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they usually guarantee certain basic rights to the people, such as freedom of speech and freedom to peaceable assemble.
o It is difficult to adopt or change a constitution. |
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administrative law
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o The most relevant administrative agency is the FCC, which regulates broadcasting and telecommunication across the US.
o Courts have limited power to review decisions made by administrative agencies. |
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Common Law
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Common law is considered “discovered law”,
Common law is known as the judge-made law. Common law is an inductive system in which a legal rule is arrived at after consideration of many cases. |
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Role of Precedent
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Four options for handling precedent
accept/follow modify/update distinguish overrule |
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Judicial Review
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the right a court has to declare a law or action invalid since it violates the constitution
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Balancing Act
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Society’s need for maximum flow of information / opinion:
- Truth prevails? - Check on government power - Encourages peaceful change |
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Absolutist Theory
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- NO LAW means no law
- Speech & press absolutely protected from government interference (no exceptions) |
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Ad Hoc Balancing
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- Court must balance rights
- Ad hoc – determine on case-by-case basis (situational) |
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Preferred Balancing
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- Freedom of expression foundation of American government / legal system
- 1st Amendment must have preferred status/position when balancing against other rights |
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Meikeljohnian Theory
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- Expression related to self-government (political speech)
- must be absolutely protected - Private expression can be regulated |
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Bill of Rights
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Concept was an “afterthought”
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Free speech not defined – left to future generations
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Is free speech / press absolute right?
Say & print ANYTHING? Who decides? |
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Alien & Sedition Acts
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1798-1800 (7 years after adoption of Bill of Rights)
- Federalists favored England (John Adams) - Strong central government - Republicans favored France (Jefferson) - Mistrusted central government |
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Sedition Acts
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SEDITION ACT – crime to publish or utter false, scandalous & malicious criticism of president, Congress or government with intent to defame or bring disrepute
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Alien Acts
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ALIEN ACT – residency requirement / power to detain & deport people
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Espionage Act – 1917/1918
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Outlawed advocating insubordination or disloyalty in armed forces or obstruction of recruitment / enlistment
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Access Theory
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people have right to access mass media (self-expression)
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Smith Act
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- Crime to advocate violent overthrow of government
- First peacetime sedition law since 1798 |
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Bad tendency
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the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity
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Censorship
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is unconsitutional (Near v. Minnesota)
exceptions: - War - Obscene material - Incitement to overthrow government |
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Libel
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Libel is a false, malicious statement published in mainstream media (i.e. on the internet, in a magazine)
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Slander v. Libel
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Slander refers to a malicious, false,[not specific enough to verify] and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images.
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Defamation
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Defamation is communication injurious to reputation
Defamation is a form of tort: a “civil wrong against a person” |
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Libel per se
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defamation on face:
Thief, swindler, whore, communist, liar, drunkard |
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Libel per quod
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False charge of crime
Mistaken identity / address Sex acts beyond social norms Terrible disease or mental illness False financial information |
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5 Elements of Libel
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-Publication
-Identification -Defamation -Fault (Blame) -Injury |
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Publication
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Defamation communicated
Minimum – must be made to person allegedly defamed & at least 1 other person (witness) – Ostrow v. Lee Print, broadcast, cartoon, photo, skywriting, etc. |
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Identification
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Plaintiff must demonstrate he/ she identified in alleged libel
Must prove statement refers to plaintiff (Carl Sagan) Journalists must be cautious about sources & identification AP: Get it first – but get it right! |
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Defamation
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Statement injures reputation and/or causes emotional distress
Must interpret language in common / ordinary meaning Can’t twist meaning Jury decides |
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Fault
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Publisher at fault – error in preparation or publication
NY Times v. Sullivan (1964) 1. Public official/figure - actual malice; published knowing it was false or with reckless disregard for truthfulness (didn’t care) 2. Private person – negligence |
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Injury
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Actual injury
Private person must show loss or injured reputation: Monetary Impaired reputation or standing in community Personal humiliation Mental anguish or suffering |
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Falsity
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reckless disregard for falsity in the words, or knowledge that the publication is false
Burden of proof on PLAINTIFF |
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Defenses: Constitutional
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--Public official
NY Times – society needs full discussion of issues & gov’t Must prove actual malice --Public figure Thrust self into controversy May remain “public” even if retired or out of news for time |
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Defenses: State
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--Truth – if in public interest
Social good may be served by bringing truth to light --Fair opinion, comment, criticism Doesn’t cover false statements of fact --Reply & consent – publication of own remarks --Qualified Privilege (immunity) Watchdog for society TX – judicial, legislative or official public meetings Conditional – Account must be fair, true & impartial |
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Seditious Libel
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Illegal to criticize government, officials, laws
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Prior Restraint
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pre-publication restrictions
Licensing, permits, taxation, censorship |
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Internet Libel
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Internet networks are, however, already treated like common carriers in many respects. ISPs are largely immune from liability for third party content. The Good Samaritan provision of the Communications Decency Act established immunity from liability for third party content on grounds of libel or slander.
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Types of damages
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Actual Damages: Damages for actual injury
Special Damages: must be established in precise terms. Like a specific amount of money. Presume Damages: damages can get without proof of injury or harm. Ex. Libelous statements Punitive Damages: exemplary damages the 'smart money'. Libelous can only get money if showing of actual malice. |
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Retraction Statues
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A retraction statute is a law that allows a defamation plaintiff to retract, or take back, a defamatory statement.
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Time, place and manner restrictions
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government can regulat ethe time place and manner of speaking or publishing/distribution of printed material.
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clear & present danger test
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speech is both directed toward inciting or producing imminent lawless actions and likely to incute or produce such action
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curfews
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unconstitutional, fear of violence isn't enough.
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hate speech
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unconstitutional, contempt or loathing because of race, religion, ethnicity, sex, sexual orientation
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vulgar speech
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marginally protected, schools can punish though
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public forums
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- sidewalks, parks, & streets
- forums by designation (auditoriums, public meeting halls) |
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residential privacy
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right to post no soliciting signs, anti-litter laws are not enforceable.
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prior restraint
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forbids publication or broadcast of certain objectionable material, as opposed to punishment of a perpatrator after the paterial has been published or broadcast.
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trial court v. appellate court
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trial = fact finding court
appellate = law-reviewing court |
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supreme court opinions:
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1. opinion of the court (majority)
2. concurring opinion 3. dissenting opinon (minority) 4. per curiam opinion (unsigned) 5. memorandum order (announcing vote without opinion) |
