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| Common law, Statutory Law, Constitutional Law, Administrative Law |
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| Court-created law; body of court decisions on a legal question |
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| Practice of following legal precedent rather than overruling precedent |
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| Notion that somebody takes the rules or precedent and follows them without changing |
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| Preference for following precedent; defines job narrowly |
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| Use of judicial power to solve society's problems and set new precedents |
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| Justice Black-literal interpretation of first amendment |
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| Justice Scalia-Constitution today means exactly what it meant when it was written |
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| Law written by the legislative body of the government |
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| Law based on either the U.S. Constitution or state constititions |
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| Marbury v. Madison (1803) |
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| Right of judicial review discovered-power of courts to declare invalid any law or official act of the other branches of government that is unconstitutional |
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| law made by regulatory agencies to deal with complex and technical issues |
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| An order by a higher court ordering a lower court to send the record of a given case so it can be reviewed |
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| What U.S. Court of Appeals is North Carolina in? |
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| The Fourth Circuit in Richmond |
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| Gitlow v. New York (1925) |
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| Set precedent for incorporation--Combines first amendment with fourteenth amendment's due process clause; makes first amendment apply to states |
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| Political speech under first amendment |
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| Most protected--you have the right to criticize the government, even if your accusations are false. You also have a first amendment right to publish false and defamatory statements about government officials as long as you don't publish those statements with actual malice |
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| Valentine v. Chrestensen (1942) |
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| Decision that purely commercial speech is not protected by the first amendment--advertising is less important than political speech, has a strong profit motive, and is easier to verify than policial claims |
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| Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) |
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| Explicitly overturned Valentine v. Christensen; First amendment protects commercial speech except for false ads, misleading (deceptive) ads, and ads for illegal products or services |
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| Levels of first amendment protection by technology |
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Definition
Most protected are print and internet communication (not absolute)
Next is cable television
Lowest level is over-the-air broadcasting |
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| Rationale for government regulation of broadcasting |
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Definition
Broadcasters use publicly owned airwaves
Scarcity-not enough room for everyone to broadcast
Media differences-broadcast more powerful--younger audience and captive audience |
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| Rationales for government regulation of cable tv |
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Cable is usually a monopoly
No scarcity like there is for over-the-air |
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| Turner Broadcasting System v. FCC (1994) |
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| Court made a middle level of protection for cable regulation--couldn't have the highest level-natural monopoly in individual towns |
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| Why the internet has the top level of protection? |
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No scarcity
Not as easily accessed as broadcasting-no captive audience |
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| Internet given the same level of protection as print |
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| Two types of restriction on press freedom |
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| Prior restraint and subsequent punishment |
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| Three main types of prior restraint |
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| Taxes, licenses, and court orders or injunctions |
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| Prior restraints on the press are almost always unconstitutional under the first amendment--chief purpose of first amendment is to prevent prior restraints |
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| Three exceptions to Near v. Minnesota |
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Definition
Publications that would jeopardize national security in wartime
Obscene publications
Publications that threaten to incite violence and/or the violent overthrow of the government |
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Court assumes from the start that prior restraint is unconstitutional
Government bears the burden of proof
Government needs to prove publication will provide "direct, immediate and irreparable harm" to nation or its people |
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| Nebraska Press Assn v. Stuart (1976) |
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Set rules for prior restraints on media coverage of judicial proceedings
Showed conflict between first and sixth amendments
To justify a gag order, a judge must find there is a clear and present danger that the defendant will be deprived of a fair trial |
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| Must we obey court orders? |
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Definition
U.S. v. Dickinson (1972)
Fifth Circuit US Court of Appeals--must obey or be found in contempt of court
U.S. v. Providence Journal (1988)
First Circuit-Can disobey the order if its transparently invalid and an immediate appeal is not granted
Fourth Circuit has not ruled |
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| Types of intellectual property law |
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| Copyright law, Trademark law, and Patent law |
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| Primary federal law on U.S. Copyright |
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| copy or reproduce a work, authorize adaptations or derivative works, distribute copes, and perform and display the work publicly |
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| Works that are not protected by copyright law and works whose copyrights have expired are said to be in the public domain; Can be used by any person for any reason without asking for permission and without payment |
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| Works that can't be copyrighted |
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Works produced by the US government
Ideas or concepts
Works consisting entirely of information in the public domain with nothing original added
Names, short phrases, slogans, designs (can be trademarked)
Listings of ingredients or contents |
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Definition
Works created in 1978 or later-the life of the author plus 70 years
Words with corporate authorship-95 years from the time of publication or 120 years from the time of creation, whichever is shorter
Works published before 1923-already in the public domain |
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| How to prove copyright infringement |
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Definition
Prove the infringer had access to the copyrighted material
Prove there was a substantial similarity between the two |
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Definition
1. Purpose and character of use-What it's being used for, is it transformative
2. Nature of copyrighted work-published or unpublished, out of print, factual or fictional
3. Amount and substantiality of the portion used-industry standard of 300 words; if its the most important part
4. The effect of the use on the potential market for, or value of, the copyrighted work--probably the most important factor |
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| Journalist working for a media outlet does not own the copyright on his or her stories |
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| News companies generally buy the rights to publish a story once (unless the contract says otherwise) |
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| If you buy a copy of a copyrighted work, you can loan it, resell it, or burn it--but you cannot make copies |
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| Digital Millenium Copyright Act (1998) |
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Protects ISPs and other online entities against liability violations by third party posters
Includes a controversial take-down provision |
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| "any word, name, symbol or device or any combination thereof, adopted and used by a manufacturer or merchant to identify its goods and distinguish them from those manufactured or sold by others." |
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| A distinctive identifier for a service rather than a product |
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| Federal statute protecting trademarks and service marks |
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| Trademark dilution-unauthorized use that tarnishes the mark |
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| Federal trademark dilution act |
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Definition
Federal remedies for trademark dilution
Exceptions:
-Comparative advertising by competitiors
-News reporting and news commentary
-Almost no commercial uses of the mark |
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