Oliver Wendell Holmes

Supreme Court Justice; Said that Law is a "Magic Mirror"

Thomas Schwartz

Communications law scholar; Said that conduct is enforced by society

Kermit Hall

Former Dean at Ohio; believed in a system of social choice; Without society we have no law, but without law, we have no society

Influences of British law in U.S. law

Natural law, Religion, Political covenants

Sources of law in the "American" System

1. Constitutions

2. Statutory Law

3. Adminstrative Regulations

4. Common Law

5. Equity Law

U.S. Constitution

Was ratified in 1787

State Constitutions

Required of all states before admission to the union; Much more detailed then U.S. constitution;                Easy to amend; Court has power to declare law unconstitutional

Precedent

What has come before, Used in current law cases when referring to old cases

Stare Decisis

"Let the Decision Stand"

Equity Law

Fairness rather than precedent;

often seen today in Injunctions

Congress

Created FCC; They enact legislation

Administrative Regulations

Implement aspects of legislation;

Creates rules and regulations

Constitutional Law

Judicial Review; Determines constitutionality of law

Courts

3 federal levels; State district courts, Trial courts, 13 Circuit Courts of Appeal--1-11, plus DC and the federal circuit

U.S. Supreme Court

9 Justices, appointed for life, Take cases on "writ of Certiorari" (on appeal from lower courts)

Opinions

Unanimous, Majority, Plurality

John Locke

Prior restraint--Censorship before publication

John Peter Zenger Trial

Writers of libelous material weren't charged, the printers wereZenger was charged with libel against NY Gov.

Creation of Bill of Rights

1778- Articles of confederation

  Freedom of speech

1787- Constitution of the U.S.

                    No freedom of speech or press

                   1788- Eight of first 11 states call for "Bill of Rights"

         1791- 1st-10th amendments ratified

The First Amendment to the U.S. Constitution

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS, or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.

  1833:  Barron v. Baltimore

First Amendment applies only to federal government

1919:  Schenck v. United States

First Amendment does not protect speech that creates a "clear and present danger"

  1925:  Gitlow v. New York

First amendment applies to the states

1931: Near v. Minnesota

Prior restraint violates first amendment

Cheif Justice Charles Evans Hughes

1. Matters of national security wartime

2. Obscene Publications

3. Incitement to violence/ forcible overthrow of government

New York Times vs. U.S.

"Secrecy in government is fundamentally anti-democratic."

First amendment interpretations

• Marketplace of Ideas--Milton, Holmes
• Self-government Rationale--Meiklejohn
• Absolutism--Douglas, Black
• Access Theory--Barron

1974:  Miami Herald v. Tornillo

  Supreme Court ruled that newspapers cannot be required to provide a "right to reply"
to an editorial against a political candidate.

There is NO single or defining theory of the First Amendment, but there are various interpretations.

Judicial Review

Power of the court to declare a law unconstitutional;

roots in Marbury vs. Madison

Forms of unprotected speech

Obscenity

Child pornography

President assassination threats

Illegal incitement to violence

Fighting words

Fighting words

Words that cause acts of violence by those to whom they're addressed (Chaplinsky vs. New Hampshire)

"Not unprotected" Speech

Hate Speech, Offensive speech, commercial speech

First amendment tests

Content based/Strict Scrutiny

Content-neutral/The O'BrienTest(mid level scrutiny)

Content based/Strict Scrutiny

1. Must further a compelling government issue

2. Must be narrowly tailored to accomplish that interest

Content neutral/ The O'Brien Test

1. Congress has authority to enact law

2. Must further a substantial government interest

3. Government interest is unrelated to supression of free expression

4. Restrictions no greater than necessary to further government interest

Examples of Content based Vs. Content neutral

Turner vs. FCC- Cable TV's Must-Carry Case

Supreme court majority said must-carry law is content neutral; congress has a substantial interest

First ammendment and the private sector

Amendment applies to government action(Public officials and agencies, but not necessarily private individuals or employers.