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-is based on precedent.
-came from the English common law system
-precedence allows certainty and consistency
-judges get their sources of law from different places |
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| (1) common law (2) equity law (3) statutory law (4) constitutional law (5) administrative law (6) international law |
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| judgemade law, applies in torts/libel; apply the principle of "stare decisis" (stand as decided); ppl need to be sure of what's legal and what's not legal |
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| fairness; court has no legal principles so they apply principles of fairness (gag orders, injunctions--order to do/not do something) |
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| enacted by Congress, local govt's, etc. |
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| laws based on the Constitution; and the bill of rights |
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| the ICC, FCC--pass rules/administrative coding |
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| treaties; some in concern of copyright. |
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| you must have a real case or controversy, real party in interest; if "moot" it's passed; courts can throw out cases that are too speculative |
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| Orignial jurisdiction (start here, heard by one judge); appellate jurisdiction (heard by 3 judges, en banc, may file a concurrence, dissent, or agree); US Supreme Court (the highest you can go) |
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| trial, appellate, supreme |
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| 5 Values related to Free Speech |
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| 1) the discovery of truth (2) the continuance of self-gov't (3) a check on gov't power (4) a promotion of stable change (5) individual fulfillment |
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| Congress shall make no law...abridging the freedom of speech, or of the press; first became applicable to the states in 1925 |
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| the power to hear a case and geographics; usually refers to the subject matter on which a court is entitled to rule, or to geography, places, or types of parties over whom a court has authority |
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| the meaning of precedent; the study of the law |
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| once established, a legan decision should not be easily changed |
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| a vote w/ the majority but based upon a difference analysis |
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| dissagreement w/ the majority's ruling and reasoning as articulated |
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| these words aren't protected by US constitution; it has to be a face-to-face confrontation--must be personal provoking violence. |
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| when words incite an imminent threat of unlawful action...when the line is crossed to violence |
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protected by the 1st amendment; it must have 2 components:
(1) intend what you're doing to convey a message (symbolic speech)
(2) capable of being understood by others
ie--flag burning is protected; cross burning (w/out intent to intimidate) is protected; it is protected if no substantial disruption occurs |
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| The O'Brien Test (draft card burning case) |
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(1) does the gov't have the power to enact this? (2) does the regulation further gov't interest? (3) is the interest unrelated to suppression of free expression? (4) is it the least restrictive alternative?
**if no, then it is unconstitutional;
if yes, it IS constitutional. (w/Vincent case it was constitutional)
**this test is much less restrictive than strict scrutiny |
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| First amendment constraints are... |
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| fighting words; true threats; national security; clear and present danger; libel (slander, defamation); obscenity; advocacy (imminent threat of unlawful activitiy) |
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| can be traditional (parks, etc) or by practice |
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-prohibition on disseminating info (done by the govt)
-done in advance of publication
-exercise of discretion
-presumptively unconstitutional (gov't has to prove the reason for it)
-they affect ALL publications
-the timing is in the hands of a govt official who can delay
-adverse decision is more likely b/c censors WANT to censor |
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-affects individual actions/publications
-better timing
-fair trial
-procedure
-open
-more democratic
-encourages risk |
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| laws regulating speech can be struck down for vagueness; ppl can't tell what's allowed and what's not. laws regulating speech can't be overbroad; |
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| it allows expression to be controlled when there is a clear and present danger that the expression will bring about substantive evils. it provides the judge w/a narrower window for restricting expression. If all the ingredients for trouble are present, the court reasoned, the gov't has a right to halt offensive speech. (bradenburg v. Ohio---anti veteran war street protestor) |
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| 4 considerations in Nebraska Press Association case |
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| (1) thre has to be a danger that the speech would impair a specific right (2) court has to look at alternatives (ie--moving case to another county) (3) judge was not convinced that prior restraint was even effective (4) order was vague/overbroad--it prevented the press from publishing ANYthing they had heard--too much was restricted |
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*applies when speech is affected as a byproduct of the regulation; when a court uses strict scrutiny, it must find (1) that there is a compelling gov't interest for the regulation, and (2) that the regulation is necessary and narrowly tailored to meet that gov't interest; that is, the govt must take the last drastic measures to accomplish a necessary goal.
**can't discriminate on basis of content** |
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