Shared Flashcard Set


Legal Issues of the Mass Media
First Amendment/Freedom of Expression
Undergraduate 3

Additional Law Flashcards




A set of rules that attempt to guide human conduct & a set of formal, governmental sanctions that are applied when those rules are violated.
law vs. ethics 

Law = what you can do

minimum set of standards 


ethics = what you should do

requires you to do less than what the law may allow (ex.- not showing 9/11 footage)



4 primary sources of law

  1. constitutions
  2. statutory law- written laws by legislators
  3. rulings of executive/administrative agencies- FCC, FTC
  4. common (case) law-judges set precedents
  • one o 4 primary sources of law
  • give the structure of gov't
  • set out rights of citizens
  • supremacy doctrine- our constitution is the supreme law of the land; overrides all other forms/levels of law
  • most direct relflection of kind of gov't desired by ppl
  • outlines gov't authority & responsibility
  • Bill of Rights- limits power of gov't
3 branches of gov't

established by the constitution

  1. legislative- enacts laws
  2. executive- enforces laws
  3. judicial- interprets laws (has last word of constitutional meaning)
*constitution very difficult to change or amend b/c it represents long standing/universal principles
statutory laws
  • one of 4 primary sources of law
  • collection of statutes and ordinances that are written by legislative bodies (U.S. Congress, 50 state legislatures, county commissions, city councils)
  • set forth enforceable rules to govern social behavior
  • legislative bodies try to forsee big issues/broad items
  • tend to deal with "big" issues, not specific problems
  • legislators allowed to anticipate problems
  • collected in codes & law books and are easily accessible


rulings by executive & administrative agencies
  • one of 4 primary sources of law
  • independent bodies of experts who are appointed to set policy solely by analyzing facts
  • agencies created to handle specific, complex areas of law- so that legislators don't have to directly handle technicalities of diff. trades
  • rulings/orders must be followed by industries they regulate- licensees must follow orders
  • each one publishes its own rules & orders
  • comm. examples- FCC,FTC
common (case) law
  • one of 4 primary sources of law
  • laws made by judge- accumulation of rulings made by the courts in individual disputes
  • principles and rules of law that derive their authority not from legislation but from usage and custom (no written/standardized format)
  • developed by addressing specific factual situations- rulings that address specific/personal controversies
  • stare decisis- "let the decision stand"; precedents provide continuity and restrict judicial abuse of discretion
  • unlike statutory b/c can't forsee issues

may be:

  • accepted- apply decision of previous case to current case; previous ruling was right
  • modified- similarities in facts but situations may be changed/different
  • distinguished- similarities in situations but facts may be changed/different
  • overruled- decision declared insufficient/inapproppriate for current case; previous ruling was wrong/faulty 
structure of U.S. federal courts
  • federal district courts (approx. 95)- lowest level in federal courts
  • federal appeals/circuit courts (approx. 13)- intermediate appelate courts; group of states assigned to a court
  • U.S. Supreme Court- highest appelate court
    • 9 justices appointed (by Pres.)/approved (by Congress) for life
    • writ of certiorari- must be granted for case to be heard
    • rule of four- must agree that case is impt. enough to be heard by supreme court
structure of U.S. State Courts
  • state district/trial courts
  • state appeals courts- may be more than one level of these
  • highest state court- only one per state (ex.- MD State Supreme Court); rulings may also be appealed to U.S. Supreme Court
ways to arrive at U.S. Supreme court
  1. federal district court > federal circuit court > U.S. Supreme Court
  2. state district court > state court of appeals > state supreme court > U.S. Supreme Court
case brief template
name of case
    citation- how you find case
    date of decision- year
    vote- if close vote = precedent not strong
    author of majority opinion
legal topics
    facts- enough to remember what case is about
    posture- where case has already been
    ?s presented- was law applied correctly or not
    answers- why court decided & how it answered     ?s
    reasoning- justification for how a case was         decided
    Summary of cocurring opinion- agree
    Summary of dissenting opinion- disagree
significance- why case is impt./what it changed

case citation system


New York Times v. Sullivan, 376 U.S. 254 (1964).

Case name, volume number, abbreviation of reporter, page # case starts on, year case was decided
5 freedoms guaranteed by 1st Amendment
  • religion
  • speech*
  • press*
  • assembly
  • petition
first amendment  
  • only specifically prohibits Congress from making laws that violate 5 guaranteed freedoms
    • through interpretation it is now applied to all branches of local, state, federal gov't
  • language is subject to interpretation
    • what does it mean to "abridge"
    • what kinds of speech are protected
    • who is member of the "press"
why framers protected free expression
  • British gov't and censorship w/ advent of printing press - framers want to avoid this type of gov't controlled expression
    • prior approval to print
    • licensing/bonds
    • taxation
    • criminal libel laws
key concepts:
  • state action
  • judicial review- courts serve as check on other branches of gov't & have authority to decide if law/reg is unconstitutional
  • violation of 1st amendment
    • vagueness- unclear so chills speech
    • overbreadth- restricts more speech than necessary
reasons to protect free expression
  • attainment of truth
    • marketplace of ideas
  • self governance- function as democracy
  • check on gov't power- exposes gov't corruption
  • change w/ stability- social change w/o violence
  • individual fulfillment-reach full potential
conflict b/t free expression and other social goals
  • free speech should be protected in abstract
  • in concrete situations, must find balance w/ other social/individual goals
theories about how to decide where to draw the line b/t freedom of expression and other social goals
  • Absolutism- anything that is declared expression is protected (not practical)
  • Preferred position balancing- presumption that expression is the preferred interest of people then weighed against other goals; it will take a lot to prove that other interests outweight interest for freedom of expression
  • ad hoc balancing- all issues are even
  • categorical approaches- define certain types of expression and then decide how much protection they should receive
  • clear and present danger test (fallen out of favor)
  •  type and severity of gov't regulation proposed
types of gov't regulation
  1. technical- setting mechanical/electronic standards for media
  2. structural- setting guidelines for relationships w/i media industries
  3. content- setting guidelines for substance of messages; causes most concern
    • face strict scrutiny (highest level of review a law can undergo)
    • to survive strict scrutiny the law must be both:
      1. justified by compelling govt. interest
      2. narrowly drawn- restrict just enough expression to meet specific interest
severity of govt. regulation
  • prior restraint (most severe)- keep expression out of "marketplace"
  • subsequent punishment- consequence after expression has happened
  • time/place/manner restriction (least severe)- limits when/where/how expression can occur
    • allowed if:
      1. content neutral- restrictions must be consistent
      2. serves substantial (reasonable) govt. interest
      3. alternative means of comm. exist
      4. narrowly tailored to serve govt. interest
prior restraints
  • presumption against them
  • Near v. Minnesota (1931)
  • Pentagon Papers case (1971)
    • U.S. Supreme court declares that publishing of articles wasn't a threat to natn'l security and failed to upholed prior restraint
  • Progressive Magazine case (1979)
    • threat to natn'l security if article is published --> uphold prior restraint
  • only allowed in very limited circumstances
Near v. Minnesota (1931)
  • 2 publishers considered mission to expose corruption by accusing 2 city officials of being involved w/ gangsters (correct info.)
  • publishers charged with violation of public statute that said the article was defamation (not libel) and declared it to be a public nusaince
  • case goes to U.S. Supreme Court where previous rulings were reversed
    • declared statute unconstitutional b/c it stopped publishers from publishing anything else in the future
  • significance: first time the supreme court declared that prior restraint won't be allowed unless in very specific cases
when prior restraints are allowed
  • national security
  • times of war
  • obscenity
  • to prevent incitements to violence
  • false/misleading advertising
  • copyright violations
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