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| The set of laws that establishes the nature, functions and limits of government |
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| Written law formally enacted by city, county state and federal legislative bodies |
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| The orders, rules and regulations delegated by legislation administrative agencies to carry out delegated duties- interpret, enable and implement statutory law. (Interstate Commerce Commission) |
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| Unwritten, judge-made law consisting of rules and principles developed through custom and precedent. Common custom of people. This makes it unfair to treat similar facts differently on different occasions. "Stare decisis" let past decisions stand- made discovery law- pre trial discoveries (collection of evidence) |
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| Law created by judges to apply general principles of ethics and fairness, rather than specific legal rules, to determine the proper remedy for legal harm |
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| Orders from a government executive, such as president, a governor or a mayor, that have the force of law.--Decides what to enforce and what not to enforce, appoint regulators and judges, and administer statutes. |
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| Freedom of speech, Press, Religion and Petition |
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| No quartering of soldiers, cant let soldiers stay in your house during |
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| Right of seizure and search regulated. no unreasonable searches. warrants issued only if there is probable cause that is supported by evidence. |
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| Immune to self incrimination |
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| Right to a speedy and public trial-- allows cameras in the court room |
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| RIght to trial- suits that exceed $20 |
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| No excessive bail or cruel and unusual punishment |
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| People retain their rights |
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| The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. |
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| ARTICLES OF CONFEDERATION RATIFIED |
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1.can apply precedent directly
2. modify precedent to fit circumstances
3. establish new precedent
4 overrule previous precedent
5. ignore precedent |
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Legislative- Senate and House of Rep pass laws
Executive- President, administrative agencies execute laws
Judicial- Three levels of courts review laws |
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| Lowest level of courts, only court to use juries, nearly all cases begin here (94 in US) |
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Factual assessment of lower court and conduct independent review of legal process---Intermediate appeals
affirm: uphold ruling
overrule: reverse ruling |
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| 9 Justices, Established 1789. Appellate court. Hear cases of lower courts 1. direct appeal 2. writ of cetioriari |
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| A petition for review by the Supreme Court |
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| A separate reasoning for the same decision |
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| Separate opinion of minority of court, or single justice disagreeing with result reached by majority- long rationale as to why they disagree |
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| FEDERAL COURTS JURISDICTION |
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1. Constitutional disputes
2. Disputes between people and states
3. Federalized crime
Federal Judges are appointed by the president with senate consent, for life |
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| everyone in accord. Stand for years. |
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| Unsigned opinion of the courts as a whole- do not know judges who made the decision |
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| Announces Supreme Court vote without providing an opinion |
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U.S.- United States Report
S.CT- Supreme court Reporter (West)
L.ED- Lawyers Edition |
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| COURT OF APPEALS PUBLISHING |
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F=Federal Reporter (West Publishing)
The first person named is the person who is appealing-lost the case |
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| DISTRICT COURT PUBLISHERS |
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| F.Supp=Federal Supplement (M.D=Middle District) |
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| FINDING THE LAW- STATE COURTS |
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Official state Reports- State abbreviation
Regional- NE, SE, PAC, S... |
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USC-United States Code
Stat- United States Statutes at large
Cong. Rec.- Congressional Record- discussion that takes place in court.
THESE CANNOT BE COURTS |
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FR-Federal Register
CFR-Code of Federal Regulations
FCC-Federal Communication Commission Reports
FTC-Federal Trade Commission
Cannot be courts |
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| United States Code-Legislative Document |
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| Legislative document-United States Statutes at large |
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| Smith v. Jones, 419 U.S. 11 (1989) |
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| Supreme Court- United States Report |
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| Smith v. Jones, 212 S.Ct. 15 (1989) |
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| Supreme Court-Supreme Court Reporter |
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| Smith v. Jones, 111 L. Ed. 95 (1989) |
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| Supreme Court-Lawyers Edition |
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Smith v. Jones, 214 F. 2d 111 (7th Circuit, 1989)
(West Publishing) |
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| Court of Appeals- Federal Reporter |
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| Jones v. Smith, 192 F. Supp. 18 (M.D. NC, 1989) |
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| District Court- Federal Supplement |
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| Administrative Documents- Federal Register and Code of Federal Regulations |
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| Administrative Documents- Federal Communication Commission Reports and Federal Trade Commission |
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| John Milton- some information is better than no information at all- free exchange of ideas was vital to discovery of the truth |
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| Criticism of the government was a crime- truth not a defense |
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| 1792-Made truth a defense for libel |
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| 1735-Could criticize the government if it was true |
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| FREEDOMS OF THE FIRST AMENDMENT |
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Grievance: complaint or resistance
Religion
Assembly
Speech
Press |
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| Putting someone in the position to break the law or harm themselves or someone else |
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1. Bad Tendency: media content wold result in violent or unlawful activity immediately after criminal was exposed to it. Corruption- mere intent can be punishable
2. Clear and Present danger-proof that that it is likely the media will cause violence- Oliver Wendall, fire in a crowded theatre, chilling effect: unsure about whether or not to say anything. falsely shouting could lead to jail-
3. Balancing Test: weigh the speech against social values (ad hoc-case by case) |
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| (!969) Incitement standard: there must be imminent danger |
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All content requires strict scrutiny-
1. must be compelling governmental interest at stake
2. means must be narrowly tailored, cannot be over broad. |
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Time, Place and Manner restrictions- mid-level scrutiny
O'brien test- is it not related to suppression of speech? does it advance government interest? Substantial Gov. interest |
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Political/Religious
Artistic
Commercial(truthful advertising, corporate)
Banal speech- no FA protection
obscenity, fighting words, false ads, damaging reputations |
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burden is on the plaintiff-must prove
1. Defamation
2. Identification
3. Publication
4. Fault- private-negligence public-malice
5.Damage or harm
6. Falsity (For Public officials) |
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Tend to expose person to hatred, ridicule or contempt
"false allegation of fact disseminated by a person that tends to injure that person's reputation." |
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| Must identify 3 ways: name, middle initial ,address, occupation |
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| Generally 3 persons involved, 2nd person can be accepted- republications count as new publications |
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| Traditional strict liability: if info is false publisher is liable even without due diligence |
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Libel per se: injurious nature is apparent and requires no further proof
Libel Per quod: requires proof |
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Presumed damages: eliminated by Sullivan and Gertz
Compensatory damages: actual-quantity of harm actually suffered by plaintiff due to libel. Special: exact monetary figure related to material loss suffered because of libel- out of pocket
Punitive- intended to punish libel defendants to discourage them and others from committing similar acts in future |
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| Opinion vs. assertion of fact |
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1974- Determined who is a public figure
1. must invite attention
2. have access to the media |
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Deadline pressure
Reliability of sources
Standard of Journalistic practice
Believability of story
Motivation
State of Mind |
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1. Appropriation (38 states)
2. Intrusion (39 states)
3. False Light (31 states)
4. Disclosure of private fact (38 states) |
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Using a person's name, picture, likeness, voice, or identity for commercial or trade purposes without permission.
Booth Rule: Incidental use was okay as long as it was newsworthy and there was consent
Right of Publicity- someone who wants to be known far and wide, celebrity--using this wold invade a persons right of publicity and diminishes their economic value- most litigated branch of privacy DEFENSE: Fair Use and comment and Parody |
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| Only privacy tort that doesnt need publication. If public property can be seen from public property a camera can record. Cant assume right to enter private property for news DEFENSE: Plain view, newsworthiness, Consent and Permission |
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| Privacy tort-information that is highly offensive to reasonable individual- Distortion: altering the form and Fictionalization:make into fiction DEFENSE: Truth and consent, Qualified Privilege, plain view |
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| DISCLOSURE OF PRIVATE FACTS |
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| Privacy tort- highly offensive to reasonable person, causes ridicule, it is true and widespread beyond 3rd person. DEFENSE: Public Record, newsworthiness, Consent, Public off/figure |
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1. Must be original
2. Must be in a fixed form of a medium
3. Creativity |
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| EXCLUSIVE RIGHTS TO COPYRIGHT HOLDERS |
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1. Make derivative works- "divisibility"
2. Distribute copies
3. Perform Work publicly
4. Copy Works -
Exceptions: Le Droit Moral 1991 law states artist can have name disassociated from modified works |
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| Move rights to one person, Book rights to another, Domestic and Foreign rights, cartoon, comic, merchandising, game |
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| Can decide when and how material should be presented |
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| Exception to Distribution, person who buys copyright work is entitled to exercise complete ownership over that copy-no multiple copies for sale |
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Performance Rights Organizations: ASCAP-American Society for Composers, Artists and Publishers
BMI- Broadcast Music Inc
SESAC
Space bigger than 3500 sq ft = public perf. |
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| Teacher and student allowed to make one copy for study purposes, teachers can make multiple on spontaneous basis |
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Musical Composition:
Sound Recording |
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Mechanical Rights: make and distribute copies of the music
-compulsory licence- pay fee to do own version of a song- cannot be stopped by artist
Digital Rights- ring tones
Public Performance-live or recorded
Master Recording-particular performance of a specific ratio of underlying composition
Synchronization- music under video |
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1976- Common law, look at amount of similarity between original and copy
Courts look at: 1. purpose and character of user (educational of for profit) 2. Nature of copyrighted material (still available? consumable? published?) 3. Amount used it relation to the whole 4. effect of use on its market |
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| HARPER AND ROW V. NATION ENTERPRISES |
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1985- The Nation published 300 words from 200,000 words out of Gerald Fox's Memoir
SC 6-3 Vote said it took away value of the book and the right to control the release of one's work is fundamental. |
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1946- Amended in 1982-service mark instead of products
lasts 20 years but is renewed as long as the mark in is commerce |
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| Coined words, Arbitrary marks, graphics, physical appearance, colors, packaging, |
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| UNFAIR COMPETITION IN TRADEMARK |
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Misappropriation:Using something without asking
Dilution: Dilute the value of trademark
Cybersquatting: domain names www.ford.com
Typosquatting: forde |
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Buyer beware vs. Seller Beware
Commercial Advertising is part of democratic process
Valentine v. Chrestensen 1942- SC said nothing in Constitution to hinder Commercial speech.-New Concept |
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| CENRAL HUDSON GAS AND ELECTRIC V. PUBLIC SERVICE GASS COMMISSION |
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| 1980-SC 8-1 laid out four part test to determine when restrictions on commercial speech violated First Amendment. |
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| CENTRAL HUDSON FOUR-PART TEST |
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1. Is speech commercial expression eligible for First Amendment Protection?- (must concern lawful activity and not be misleading) 2. Does the government have substantial interest in regulating expression?
3.Does regulation advance government interest?
4. Is regulation sufficiently narrow? |
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Regulates Advertising- 5 members, refers to Article 1, sec 8 of constitution (power of congress)
promote fair and free competition, concerned with deception and misleading ads
Audience considerations: Avg person v gullible
Different standard for kids
Focused on materiality of the claim- marbles in soup, (mockup) mashed potato ice cream, literal truth (baggies underwater) |
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| Exaggeration, no material claim |
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Prospective remedies: Industry guides-serve educational purpose
Halting Remedies: letters of compliance- opportunity to abide by rules, Consent decrees- terms to follow to address problematic advertising, Cease and Desist- stop advertisement, TRO- Temporary Restraining Order
Post Advertising: Corrective ads, Substantiation- prove claims made |
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| First National Bank of Boston v. Bellotti (1978)-SC ruled 5-4 that corporations had a First Amendment right to make contributions in order to attempt to influence political processes. |
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| FA rights do not transfer to election, they do not want corporation to sway votes- Federal Election Campaign Act of 1971-prohibits corporate contributions to elections |
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Political Action Committee recruits people to give money to certain candidate
$5,000 to a PAC
$25,000 to all PAC'S
$1,000 to each candidate |
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