1) Congruence of issues

2) Complexity for the jury

3) Possible prejudice to any of the parties.

Civil cases are bifurcated into separate liability and damages proceedings.

Criminal trials are bifurcated into guilt and sentencing phases.

Mental cases are bifurcated by carrying out the trial, guilty vs. non guilty. If defendant is found guilty, then the issue of mental illness is presented.

The TPM test is used when dealing with content-neutral regulations.

AKA "intermediate scrutiny", it's a less rigorous test than the court would use for content-based regulations.

Regulation must:

1) Be content-neutral

2) Serve an important covernment interest

3) Be narrowly tailored to achieve that interest

4) Leave open ample alternatives for speech

DoC enacts an ordinance prohibiting the display of signs "regarding war" withint 500ft of that government's embassy.

This is a CONTENT-BASED regulation, therefore:

Courts use STRICT SCRUTINY to determine whether it violates the First Amendment.

1) Of compelling government interest

2) Narrowly tailored

3) The Least resctrictive means for acheiving that interest

Governance

Fulfillment

Attainment of truth

Check on Government power

Change with stability

The 14th amendment includes the "incorporation clause".

 Requires all states to abide by the constitution, all amendments are incorporated to states through the "due process" clause in the 14th amendment.

Vague = cannot tell what speech is prohibited

Overbroad = statute prohibits more speech than intended (ex/ The Crush Case)

TPM: for content-neutral regulations

Strict Scrutiny: for content-based regulations <-- More rigorous

Commercial speech and Sexual expression

Protected, but more heavily regulated

Fighting words: words by their very utterance inflict injury or tend to incite an immediate breach of peace, NOT PROTECTED

Hate speech: considered political speech, IS PROTECTED

1) Adults

2) College Students

3) High School & below

For content-based prior restraint regulations:

                        The District of Columbia enacted an ordinance that prohibited the display of signs REGARDING WAR within 500ft of a foreign government's embassy. 

The speech being regulated here is obviously content-related to war.  Since this is a content-based regulation, courts would us strict scrutiny to determine whether it violates the First Amendment.

Intermediate scrutiny is also known as the TPM (time, place, manner) test, it is used for content-neutral regulations; It requires the regulation to:

1)      Be content neutral

2)      Serve an important government interest

3)      Be narrowly tailored to that interest

4)      Leave ample open alternatives for speech

1)      Defamatory Language

2)      Identification

3)      Publication

4)      Fault

5)      Falsity

6)      Harm

What are the two types of compensatory damages? 

Actual: Reimbursement for monetary funds (medical bills, transportation)

General: Financial compensation for non-monetary expenditure (pain/suffering, long-term pain)

All-Purpose Public Figure: Actual Malice

Limited/Vortex Public Figure: remain "private person" unless controversy passes the three-part test: (ex/ Casey Anthony)

1)      Lawsuit involves a public controversy

2)      Plaintiff voluntarily participated in discussion of the controversy

3)      Plaintiff has tried to affect the outcome of the controversy

Elected: Actual malice

Unelected:

Have control over government affairs: Actual malic

No control over government affairs: Negligence

Know and be able to recite the New York Times v. Sullivan definition of actual malice?

            Actual Malice: Defendant published the statement either:

·         Knowing it was false

·         With reckless disregard for the truth

Negligence: failure to act as a reasonably prudent person would, breach a care of duty that causes injury to the plaintiff

Defamation:

 Libel vs. Slander

Libel: written defamation

Slander: spoken defamation

            Tinker vs. DSM School District: family wore black armbands in protest of war, Supreme Court ruled it protected speech; symbolic speech involves an action meant to convey a particular message. 

Diversity Jurisdiction: invovles people form different states, or claim is $75,000+

Federal Question: involves an issue of federal law

Government filed injunction against The New York Times to cease publication after 3 articles. Newspaper appealed the injunction. Several other papers received copies of The Pentagon Papers and began publishing them, despite several governmental requests for injunctions against the medias. June 30, 1971, the Supreme Court decided 6-3 that the government failed to meet the “heavy burden of proof” required for prior restraint injunction. This case is considered victory for the First Amendment.

In order for the Court to grant an injunction to prevent the publication of information related to national security (political speech), the government must show that the speech presented an immediate, irreparable danger to national security.  The Court described that standard as a heavy burden that which the government did not meet.

·         Traditional Public Forum: streets, parks, etc.

·         Dedicated/Limited Public Forum: school board meeting, state college facility

·         Non Public Forum: airports, prisons, military bases