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| Prevails over state laws. supreme source of law in the united states. |
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| Laws made by the FTC and the FCC fall under what kind of law? |
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Constitutional Law
Administrative Law
Statutory Law
Executive Actions
Common Law
Law of Equity |
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| ruling based on tradition and custom that became the law of the land |
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| rough means, "let past decisions stand" |
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| latin term indicating the court is willing to review a case. |
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| an opinion by the court rather than an opinion attributed to any one justice. |
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| legal wrong committed by one person unto another |
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| Civil law mostly deals with what kind of law? what about criminal law? |
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| Common law/ Statutory law |
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| Members of the supreme court |
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Definition
Stephen Breyer
Clarence Thomas
Ruth Bader Ginsberg
Sam Alito
Anthony Kennedy
John Paul Stevens
Chief Justice John Roberts Jr.
Antonin Scalia
David Souter |
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| prevents a person from harming another...used in law to warn someone |
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| Three judicial practices guaranteeing maximum freedom of expression are |
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judicial review
first amendment due process
a bias against regulating expressive content |
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| developed for laws that incidentally regulate expression, such as a noise ordinance covering both amplified speech and the operation of construction equipment. |
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| Time, place and manner test |
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| designed for regulations targeting expressive activities, such as a restriction on where picketing may take place. Court says this test is substantially similar to the O'brein tetst. |
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| O'Brein burned his draft card and the courts said this was a content-neutral law because since the draft card was needed for the government to react quickly in wartime, it didn't matter that he was burning his draft card. |
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| Compelling governmental interest |
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| cases involving a serious restriction on FA rights, such as a content-based exclusion from a public form. |
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| Substantial/Significant Government Interest |
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| applies to content-neutral restrictions because they are less harmful than content-based. |
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| What is Absolutism and who pioneered it? |
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| Absolutism is the belief that ALL speech and protection is protected and it was pioneered by Justice Hugo Black. |
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| Speech, Religion, Press, Peaceable assemble and petition the gov't for redress of grievances |
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| What are the theories of expression...meaning, why is it important that our society have a freedom of expression? |
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1) check on government power
2) attaintmet of truth
3) governance
4) change with stability
5) fulfillment |
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Legal system to promote consistensy and predictability in our legal system.
using decisions and precedents made in prior cases. |
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| When an appellate court sends a case back to a lower court, directing th lower court to decide the case consistent with the higher court's opinion |
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| the judicial requirement that a restriction on protected contents be justified by a COMPELLING gov't interest and that the regulation not be overbroad or vague. |
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| A legal wrong that is committed by one person against another. Torts include libel, invasion of privacy, trespass. |
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| Petition for Writ of Ceritiorari |
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| the name of a writ asking the US suupreme court to review a case. If the writ is granted, the court will order the lower court to provide the record of the case for review. |
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| How does plurality differ from majority |
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| Majority means that most of the justices agree, plurarlity means that the opinion tis support by more justices than any other opinion but not the majority. |
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| an appellate judge's opinion explaining the judge's disagreement with the court majority's decision |
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| an opinion written by an appellate court judge stating why the judge agreed with the other judges. |
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| an opinion issued by and for teh enitre court rather than by one judge writing for the court. |
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A first amendment process that the government justify prior restraints and other restrictions and that hearing be held at which restrictions may be contests.
in other words, if the government looks at content prior to it being published/broadcasted, they need to justify why they are doing so! |
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| Who proposed the idea of self-government |
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Vincent Blasi pionered this idea
media keeps the government in check and doesn't allow the gov't too much power |
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A person has the right to integrity of truth
Thomas Emerson idea |
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| General First Amendment Theory |
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Self fulfillment
Ascertaining truth
Participation in society and government
change with stability |
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Undergoes strict scrutiny
Government must provide a compelling goernment interest to do so
is must be narrowly drawn and not vague or overbroad
they cannot partake in viewpoint discrimination |
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Bad Tendency Test
Clear & Present Danger Test
Balancing Test |
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| Clear & Present Danger Test |
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| Intended to and likely to produce imminent disorder |
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| Content-based test that uses ad hoc balancing (which is balancing on a case-by-case basis and doesn't really look at other cases) and definitional balancing (a weight of balancing where extra special weight is given to freedom of expression and thus it is more predictable than ad hoc). |
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| Content-Neutral Regulations |
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Definition
Narrowly tailored to a SIGNIFICANT government interest, not compelling
Provides alternative channels for people to express themselves |
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Term
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Definition
O'Brein Test (epxression is restricted because it limits the gov't ability to do it's job quickly and efficiently) i.e.-burning draft cards makes it difficult for troops to assemble quickly
Time, place and manner test (time, place or manner of the event is restricted because of non-content reasons) |
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| Heirachy of protection going from "Highest Protection" to " Intermediate Protection" to "Little to no Protection" |
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Definition
HIGHEST- Political and Social Expression
INTERMEDIATE- Commerical and non-obscene sexual speech
LITTLE- fighting words, obscene language, false advertising, threats (incitement speech) |
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| Does Commercial and sexual expression fall under compelling or substantial interest? |
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Definition
| Substantia and thus it is relaxed scrutiny |
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Definition
law said flag burning prohibition wasn't content neutral
court looked at language of law and after several tries working changed to "protect the symbol of the nation" |
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Term
| Chaplinsky v. New Hamshire |
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Definition
Words that by their very utterance inflict injury or tend to incite immediate breach of the peace.
Chaplinsky called a marshall a "goddamned racketeer and fascist" and judge ruled that most people would become physically aggressive as a result. |
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Definition
No immediate danger of a violent physical reaction
Cohen wore the words "fuck the draft" on the back of his jacket in a court house. Court ruled that his jacket wasn't considered fighting words because there was no immediatet danger from it. |
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Definition
insulting words often targeting a minority group/sexual orientation/gender/etc.
granted FA protection because they are considered political speech. |
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Definition
Limitations or restrictions on expression BEFORE publication.
courts says this is invasive and intolerable.
Court applies strict scrutiny when evaluating prior restrain laws. |
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| Valentine v. Chrestensen (1942) |
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Definition
Advertising fell outside the scope of the FA
An entrepreneur distributed handbills advertising his submarine tours in violation of NYC ordinance, he added a message about the NYC ordinance on the other side.
Courts ruled ordinance didn't violate the FA. |
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Term
| Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council |
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Definition
Court decided that pure commercial speech is protected
They struck down a statute prohibiting pharmacists from advertising drug prices. |
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| Intermediate Protection heirarchy |
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Definition
| False Advertising has little to no protection, commercial speech has middle-range protection and political speech has full protection |
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Term
| Central Hudson Four-Part Test |
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Definition
Test used in regulating commercial speech
1) is it commercial speech
2) does the gov't have a substantial interest
3) does the regulation directly advance the interest
4) is the regulation sufficiently narrow? |
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Term
| Informal Remedies for false ads |
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Definition
| prospective or forward looking staff opinion letters |
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Term
| Formal and Protective remedies for false ads |
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Definition
advisory opinion letters,
industry guides (general statement printed by the FTC) and
rules issued w/ the force of law (specific situations or companies) |
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Term
| Halting advertisements via Consent Decrees |
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Definition
90% of cases are settled this way--
Pretty much early stage of ad halting where the FTC tells the company to stop publication of ad so that FTC won't sue |
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| Halting Advertisements via Cease and Desist Orders |
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Definition
| one step above consent decrees. This is a formal complaint when the advert company doesn't listen to the consent decree and continues publishing the advert. |
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| Halting Advertisements via Injunctions |
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Definition
Most extreme version of halting advertisement.
FTC uses this to immediately stop the advertisement, particularly if it causes health concerns. |
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| ad agency cannot lie by ommission. For instance...tobacco product--company needs to tell about adverse health affects..cannot just omit the info. |
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| rarely used...FTC mandates that the company issue a retraction if there was something wrong w/ initial advert. |
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Definition
| prohibits false or misleading representation of fact advertisements |
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| What is considered the most efficient tool for stopping bad advertising practices |
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Definition
| Self Regulation, just like the tobacco industry. That way, gov't doesn't need to get involved and there aren't any fines. |
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Term
| National Advertising Division and National Advertising Review Board |
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Definition
Est. 1971 to promote truth and accuracy.
Investigates nat'l advertising but not state adverts |
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Term
| SEC v. Texas Gulf Sulphur, Co. |
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Definition
Texas Gulf issued a press release with false/misleading info and investors lost money while insiders profited.
An appeals court held that insiders were responsible for damages to stock holders.. |
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Term
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Definition
| public issue that is put upto vote by citizens |
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| First Bank of Boston v. Bellotti (1978) |
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Definition
Mass. gov't prohibited corporations from buying ads that supported or opposed a referendum unless the corporation was directly affected.
Bank wanted to tell people not to support a tax iniative and Mass gov't tried to prevent htem but the Court said that they were allowed to do this because political speech is "at the heart of the FA's protections"
Important: NOT ALL corporate speech is protected. |
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Term
| Why do gov't want to prevent corporate speech? |
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Definition
| gov't believes b/c corporations have so much money they have the ability to corrupt society. |
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Term
| Pacific Gas & Electric v. Public Utilities of California (1986) |
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Definition
Corporations cannot be required to carry messages they disagree with even if the state gov't approves the message.
This is unfair because the corporation would have to spend the money to distribute the message, which isn't fair! |
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Term
| Do corporations have a right to privacy? |
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Definition
| no- they can be required to testify against themselves and give information to the gov't and public |
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Term
| What is the purpose of Political Ation Committees (PACS) |
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Definition
| Because corporations aren't allowed to contribute money to a candidates campaign, they can create PACs to raise funds in support or opposition of a candidate. Important to note that the money raised in PACs has NOTHING to do with the corporation! |
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Term
| FECA (Federal Elections Campaign Act) |
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Definition
passed in 1971 and amendments made in 1974.
This act outlines the monetary value of contributions, expenditures that a company can give to a party. |
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Term
| BCRA (Bi-partisan campaign reform act) 2002 |
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Definition
regulated what is known as soft money.
Because FECA didn't delineate "soft money" donations, BCRA does it. |
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| 30/60 day limits on broadcast ads |
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Definition
corporations cannot support or oppose a candidate 30 days prior to primary election and 60 days prior to general election
law is changing still
created by BCRA |
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| T/F Corporations can support issues with treasury money. |
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Definition
| T. Corporations can support issues, NOT CANDIDATES! |
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| corporation can support/oppose candidate among members of the corporation, but cannot send the message outside of the corporation. |
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| How are members of the media exempt from candidate talk? |
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Definition
| becauwse they can talk about it for news functions that serve the public good |
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Term
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Definition
FCC mandated broadcasters to devote reasonable amount of airtime to public issues and politics and present contrasting views in case of controversial issues.
This doctrine was repealed in 1987! |
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Term
| Policies under the Fairness Doctrine |
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Definition
1) broadcaster had to inform candidate if he or she was personally attacked on airwaves
2) both sides of an issue needed to be covered by the station
both policies went away in 200 because the Court forced FCC to repeal them |
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Term
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Definition
still enforced.
mirrors the equal opportunity rule for candidates.
Candidate must have the opportunity to buy time on station if other candidate has time.
Only rule from the fairness doctrine still in effect today! |
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Term
| Lobbying Disclosure Act of 1995 |
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Definition
| requires lobbyists to register and report general activities. |
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| Foreign Agents Registration Act (FARA) |
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Definition
| allows foreign gov'ts to lobby for us politics but they need to fill out more info for registration AND they cannot spend money to influence american politics. |
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