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Collins JOUR 303 Final Exam Questions
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article 1 of the constitution ✔✔established the legislative branch (congress)
article 2 of the constitution ✔✔established the executive branch (president)
article 3 of the constitution ✔✔established the judicial branch (federal court system)
five freedoms of the first amendment ✔✔speech, religion, press, assembly, petition the govt
one example of a limit on the first amendment freedom of speech ✔✔going under oath in court. you still have freedom of speech, but if you lie under oath you will be charged with perjury
First amendment ✔✔congress shall make no law abridging the freedom of speech or of the press
speech not under the umbrella of protection ✔✔criminal speech and porn
the only regulation on porn is child pornography
speech that is somewhat under the umbrella of protection ✔✔commercial speech
6 rationales for regulating speech ✔✔-yes, but... (need a compelling reason)
- somewhat protected (cable broadcast/commercial speech)
- not protected (criminal speech)
- time/place/manner (in order to be constitutional it must be: content neutral, reasonable, and cannot be a complete ban on speech)
- expressive conduct
- derivative/secondary claims (right of access, journalistic privilege to withhold information)
if the first amendment protects anything, it's ✔✔political speech
if the first amendment prohibits anything, it's ✔✔prior restraint
process of passing a law ✔✔bill is proposed, congress passes, committee votes to pass, house votes to pass, senate votes to pass, president signs into law
4 - step process to determine what a law mean ✔✔-read the law
- look for precedent
- look to the lawmakers (did the people who made the law give you any clues)
- look to the history of the times the law was made
constriction act ✔✔law that allowed the govt to have the draft
espionage act of 1919 ✔✔congress passed a law making it a crime to speak out against the war effort during war times
Schenck v. US (1919) ✔✔Schenck mailed anti-draft pamphlets to people who had been drafted and not yet reported, govt arrested Schenck and charged him with conspiring to violate the espionage act, mailing violation, and violating the espionage act. Schenck is convicted and appeals but lost because it was ruled that the espionage act did not violate the first amendment
Verdict from Schenck v US ✔✔if speech is intended to result in a crime, and there is a clear and present danger that it will result in a crime, the first amendment does not protect the speaker from govt action
is Schenck v. US current law ✔✔No, much has changed since then
2 types of law ✔✔-criminal
-civil
4 sources of American law ✔✔-constitution
-statutory law
-regulatory law
-common law
statutory law ✔✔made by legislators (criminal law)
regulatory law ✔✔regulations, ex. FCC
common law ✔✔judge-made law, decision by decision
in order to be constitutional a law needs to specify: ✔✔-what is the act
defense moves for a direct verdict (likely not granted)
defense introduces evidence
prosecution cross-examination
defense closing statement
prosecution closing statement
judge charges the jury
jury decides
3 pleas ✔✔guilty, not guilty, no lo contondra (no contest, choose not to defend yourself)
federal court system ✔✔district courts (regional) --> court of appeals (circuits) --> SCOTUS
federal court of appeals ✔✔federal circuit court, 3-judge panel assigned to hear appeals, then things go to SCOTUS
writ of certiorari ✔✔An order by SCOTUS directing a lower court to send up a case for review
8 ways of achieving prior restraint ✔✔-use force
-get a court ourder
-create a new law
-tax
-licensing
-censor
-govt owns the media
-govt owns the raw material
Russian Revolution ✔✔happened during WWI, white vs red. US power structure was white side, Abrams' group was red side. rumor was circulating that US sent troops to assist white
Abrams v. US (1919) ✔✔Abrams (Russian immigrant, communist) group made fliers telling people working in ammo to go on strike because it was being used to fight their own people (red Russians). judge said this did not violate the Espionage Act because we were not at war with Russia, however, even if his intent was not to violate the war effort, his speech could, so he was sentenced to 20 years. Justice Holmes analogized the free trade market of goods and services (capitalism)
best test of truth ✔✔The power of the thought to get itself accepted in the competition of the market
Brandenburg test ✔✔a STATE may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed ton citing or producing imminent lawless action and is likely to incite or produce such action
(incite or produce, imminent, lawless act, likely to incite or produce such action)
when is prior restraint allowed ✔✔-national security
-state security
-decency (porn)
Near v. Minnesota (1931) ✔✔Near: editor/owner of newspaper, police called him a public nuisance and state of Minnesota wouldn't let him own a newspaper
5-4 landmark decision where SCOTUS decided prior restraint on publication violated freedom of press under the first amendment
Daniel Elsberg ✔✔Former defense department secretary who leaked the pentagon papers to NYT
Pentagon Papers (1971) ✔✔NYT published Pentagon Papers
govt went to federal district court (federal trial court) in NYC seeking a court order to stop the print, they get a TRO (temporary restraining order). NYT appeals and govt goes to circuit court and is granted an injunction. a bunch of NYT lawyers resign. Washington Post Las begins to publish, so the govt goes to district court in DC and does not get the restraining order. SCOTUS takes the case since NY and DC are ruling differently on the same issue
Pentagon Papers ruling ✔✔6-3, side with the newspapers
the side of 6 was really split 2-1-3, each judge having a different opinion
for majority at least 5 have to agree on. outcome and rationalization
plurality opinion: does not set a precedent
roth test was used to determine if the material was acceptable
roth test (1950s) ✔✔allowed consenting adults to view pornography
this is an example of speech that has no protection, but congress ruled in its favor
9 PP judges ✔✔for:
Black
Douglas
Brennan
4-part Brennan test for clear and present danger ✔✔1. proof of 2. inevitable 3. directly 4. immediately
tests for clear and present danger ✔✔federal: Brennan test
state: Brandenburg test
Stewart opinion ✔✔Give me a law or regulation to interpret. there was no law or regulation saying the newspapers couldn't do this, although he felt it would result in a clear and present danger his job is to interpret the law and there was no law
"when everything is classified, nothing is classified"
White opinion ✔✔no prior restraint, prosecute the newspapers after the fact. govt should have post-publication liability
Marshall opinion ✔✔separation of power approach, the court can't do this, philosophical approach
Chief Justice Burger opinion ✔✔if NYT had the papers for so long before publishing them the govt should have time too. govt should have the opportunity to take more time to make a case. "why are we here"
Harlan opinion ✔✔the court did not have adequate time to examine the material to determine if national security was truly at stake. says article 2 of the constitution entitles the govt to regulate speech in protection of national security. recognized as the great constitution law scholar.
Blackmon opinion ✔✔can't weigh one part of the constitution over another, read as one big document
can't subscribe to first amendment absolutism
What was the beginning of commercial speech ✔✔Industrial revolution, mass product led to mass transport
Blue Sky Laws ✔✔you can't promise everything under the sun
state laws
criminal law
SCOTUS disagreed, Press lost
Bigolow v. Virginia (1975) ✔✔Bigolow published an ad for a NY abortion clinic in his VA newspaper, VA said he was assisting in abortion, SCOTUS sided with Bigolow saying his speech was protected because it was not false, deceptive, or illegal
Virginia Board of Pharmacy v. Virginia Citizens Cooperative Group (VCCG) ✔✔VBOP declared it was unethical to advertise the price of prescriptive drugs (trying to protect big pharmacy), VCCG sued to allow advertising
commercial speech is fully protected speech unless it is false, deceptive, or illegal
Bates, ABA v. Virginia Bar (1978) ✔✔Bates wanted to open a legal clinic for the poor and wanted to advertise, but that was typically seen as unethical among lawyers
Bates focused on the right of the speaker to speak rather than the right of the audience to know
Central Hudson Gas + Electric v. Public Service Commission (1980) ✔✔PSC didn't want Central Hudson to advertise because they were a monopoly
this is where we got the 4-prong Central Hudson test
Central Hudson passed the Central Hudson test
4-prong Central Hudson test ✔✔1. is this speech protected at all by the 1st amendment?
- does the govt have a substantial interest in regulation?
- does this law or regulation advance the govt's interest?
- is it no more extensive than necessary? (narrowly tailored)
If the answer is YES to all 4, the govt wins and can regulate
is the central Hudson test still current law for commercial speech ✔✔yes
Kasky v. Nike ✔✔Nike was criticized for how products were being made and ran a reputation management campaign, Kasky sued for false advertising, Nike said it's not commercial speech, Cali said SCOTUS never gave a clear definition of commercial speech, case sent back to Cali, Nike paid off Kasky to make it go away
created Cali 3-part test for commercial speech
California 3-part test for commercial speech ✔✔1. is the speaker commercial (for-profit)
libel: written
slander: spoken
courts will usually treat anything the media does as libel since it's recorded
per say vs per quod ✔✔per say: obvious defamation, on its face
per quod: "because" (you have to demonstrate why)
4 types of per say ✔✔crime
immoral activity
serious communicable loathsome disease
business/trade/calling
5 steps of a defamation case ✔✔1. defamation
- publication
- identification
- causation
- compensation
civil law process ✔✔-work out fee
-what happened
-create a written complaint
-file complaint at court (this turns it into a public record)
-serve the complaint to the D
-a set number of days for D to appear after being served, after that P can seek a default judgment if they don't show
-D hires a lawyer (within that time frame)
-D creates an answer
-answer served back to P, now we have a lawsuit
-collect evidence
-go to a mediator (the law favors settlement when ti comes to civil law, come to an agreement before going to law)
-if you cant have mediation, have arbirtration
-court will give it a shot
-go to trial
defendant responses for an answer ✔✔deny
