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| US Court System Structure |
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STATE:
Trial -> Court of Appeals -> Supreme
FEDERAL:
Trial (District) -> Court of Appeals (13 Circuits) -> Supreme Court |
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| dispute between 2 private parties |
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| indictment by grand jury; filed by the state; everyone has right to jury trial |
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| respondent in case appealed to higher court |
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| person who applies to a higher court for a reversal of the decision of a lower court |
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| Protects freedom of speech, freedom of religion, and freedom of the press, as well as the right to assemble and petition the government |
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| Prohibits unreasonable searches and seizures and sets out requirements for search warrants based on probable cause |
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| test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity (Schenck) |
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| test which permits restriction of freedom of speech if individual's words are likely to incite violence |
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| judgment granted in a lawsuit when materials of the case disclose no material issue of fact b/w the two parties, making it possible for the case to be decided on the basis of the law by the court - no costly jury trial needed |
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| document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court |
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| How did prior restraint become unconstitutional? |
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| Near v. Minnesota - government cannot censor you or what you MIGHT say; that's unconstitutional except in extreme situations (threatening) |
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| Current definition of "clear and present danger" |
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| presence of "imminent lawless action" - from Brandenberg v. Ohio (KKK didn't have imminent lawless action, was merely speaking against gov't) |
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| no law means no law - absolute protection against censorship |
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| when free speech/press rights conflict with other important rights, the courts must balance those freedoms |
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| preferred position balancing theory |
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| when balancing conflicting rights, speech & press are preferred to others |
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| distinguishes between public and private speech - public speech is always allowed |
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| Marketplace of ideas theory |
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| all info and opinions compete in a marketplace; best ideas chosen from many (currently dominates) |
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| Self-realization/self fulfillment theory |
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| speech is inherently valuable to a person regardless of its effects |
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| free speech and press rights aren't meaningful to citizens unless they have access to media outlets - if media won't allow access, gov't should enforce access |
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| common, equity, statutory, constitutional, administrative |
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| judges rely on precedents to make current decision |
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| permits judge to fashion solutions to unique/unusual problems |
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| derived from legislative bodies: city council, state legislature, US congress - problems affecting large #s |
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| US Constitution is highest law of the land - no other laws can override constitution |
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| technical rules and orders by governmental agencies; executive orders |
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| 5 areas protected by 1st Amendment |
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| religion, speech, press, peaceably assemble, petition |
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| Freedom of Information Act |
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| provides a right of access to records possessed by federal government agencies, qualified by 9 exemptions |
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| Newsgathering - legal theories journalists should be aware of |
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| trespassing, harassment, fraud, & misrepresentation |
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| material is defamatory, words are concerning the plaintiff, libel was published, defendant was at fault, material is false |
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| truth; fair comment & criticism (opinion/joke) |
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| words are libelous at face value - obscene, damaging |
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| words innocent on their face but become defamatory with other facts |
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- strict liability: defendant is liable, no fault
- negligence: failure to exercise the care a reasonable person would (reliance on unworthy source, not reading/misreading info, failure to check a source, carelessness) |
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| all-purpose public figure |
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| known in the public eye, an influencer; once a public figure, always a public figure |
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| limited-purpose public figure |
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| known on a particular issue |
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| punish the media to teach them a lesson |
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| with damage of reputation - monetary |
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| minimal - legally, plaintiff should win, but damages were insignificant so nothing happens |
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| appropriation, intrusion, publication of embarrassing private facts, false light |
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| Appropriation: right to privacy |
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| likeness used in advertising - a personal right |
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| Appropriation: right of publicity |
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| protects from exploitation of name/likeness for commercial purposes |
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| Appropriation: news & information exception |
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| anything that's not an explicit advertisement can be used for news |
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| illegal to intrude, physically or otherwise, on the seclusion or solitude of an individual (recording devices, illegally obtained info) |
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| defenses of invasion of privacy |
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| newsworthiness, consent, public property, public record |
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| publication of private info |
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| to prevail in court, plaintiff must prove it's highly offensive to a reasonable person and it's not a matter of public interest |
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| someone is in the wrong place at the wrong time |
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| whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest in sex |
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| Roth test; the work depicts in a patently offensive way sexual conduct specifically defined by applicable state law; the work in question lacks serious literary/artistic/political/scientific value |
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| give inventor monopoly on product for 20 years |
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| any word, symbol or device (or combination thereof) that differentiates an individual's or company's goods and services from competitors - stops market confusion |
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| 1. distinguish seller's goods; 2. signify all goods come from single source; 3. signify all goods are of equal quality; 4. serve in advertising & selling |
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| 1. on/after 1/1/1978: 70 years after creator's death; 2. before 1/1/78 (either created but not registered or registered before) |
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| Sonny Bono (c) extension act |
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| 1998 - extended (c) 20 years longer |
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| permits limited copying of an original creation; depends on purpose, nature of work, amount/substance in portion used, effect of the use on the market for the whole product |
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| 1. is the plaintiff's (c) valid; 2. did the defendant have access to plaintiff's work prior to the infringement?; 3. are the two works the same/similar? |
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| assess defendant for damages suffered; reimbursement of profits made by infringer; statutory damages |
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| Commercial Speech Doctrine |
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| truthful, non-misleading advertising about lawful goods & services receives an intermediate level of 1st amendment protection; false advertising/advertising of unlawful goods receives none |
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- related solely to economic issues
- proposes commercial transactions |
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| Government bans on advertising |
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- false, misleading, or deceptive advertising
- advertising of unlawful goods/services |
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| True & lawful commercial speech can be regulated if... |
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1. substantial gov't interest justifies the regulation
2. evidence the regulation directly advances gov't interest
3. reasonable fit b/w state interest & gov't regulation |
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| false/deceptive advertising |
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1. representation/omission/practice must be likely to mislead the consumer
2. must be considered from the perspective of the consumer who is acting reasonably
3. the representation/omission/practice must be material |
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| broadcast stations are not common carriers (CBS v. Nat'l Democratic Committee); broadcasters have near complete editorial discretion under 1st amendment |
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| cable TV must carry local TV programming channels |
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| notion that broadcasters protect public interest is eroding |
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| equal opportunity for all legally qualified candidates of the same office (time, facilities, cost) |
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| legally qualified candidate |
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- public announcement of candidacy
- meets law's qualifications
- qualifies for a place on the ballot
- duly nominated by a political party |
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| 1919; Schenck distributed 15,000 leaflets to resist draft; arrested under Espionage Act of 1917; not protected under 1st Amendment because of clear & present danger - place & time restrictions; ROL: Clear & Present Danger - bad tendency |
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| 1931; "Saturday Press" convicted for 9 separate instances of news that violated "Minnesota Gag Law"; can't outlaw because it's considered total censorship, and Near wasn't abusing freedom of press; ROL: every citizen granted FOP so long as they don't violate laws |
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| Zacchini v. Scripps-Howard Broadcasting |
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| Human cannonball Zacchini requested no photos; reporter recorded the next day; publicity rights of citizens override freedom of press; ROL: Scripps-Howard guilty for filming w/o consent |
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| Student Cohn assaulted at party and later died; full name reported by Cox; GA ruled in favor of family; Supreme court ruled in favor of press; ROL: right of privacy does not extend to court proceedings and public court records |
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| Nuccio defended by Elmer Gertz; a year later, Gertz referenced as a Communist in "American Opinion"; Gertz sued for defamation; NYT v. Sullivan doesn't apply - don't need actual malice; ROL: private individuals receive compensation for damages related to defamation |
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| "Heed Their Rising Voices" ad printed in NYT; information against police force; LB Sullivan sued for damaging reputation; ROL: Public offical cannot receive damages for libel if malice is not proven. |
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| 1981; Carter-Mondale campaign denied time slot on CBS, ABC & NBC; FCC found that violated Communications Act of 1934 - stations must allow reasonable access to legal candidates for Federal office; FCC didn't infringe - broadcasters' freedom of expression and editorial rights are outweighed by 1st amendment rights of candidates, public's intelligent votes, and effective democratic process; ROL: broadcasters must allow reasonable right of access for federal electoral candidates, requests handled individually & examined for its own merits |
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