MC 3080 Grimm Test 1

Law

a system of rules that helps structure or govern a society

Four principles of law (mcq)

universally acceptable

clear, precise, and stable

fair with no undue discretion

timely

criminal case

alleges violation of a criminal law, often ending in jail time

criminal case burden of proof

certain beyond reasonable doubt

civil case

alleges violation of civil law, often ending with a lawsuit or fine

civil case burden of proof

50% plus a feather and preponderance of evidence

vague laws

laws that use general language so that it is hard to understand and enforce

over broad laws

unconstitutional or void for being too broad; infringe on Bill of Rights and often deal with free speech

discretion

authority to determine the proper outcome

jurisdiction

geographic or topical area of responsibility of a court

before a law suit,

must determine jurisdiction

types of courts

trial courts, appellate courts, us district courts, us court of appeals, us supreme court

trial courts

find facts and apply laws; involves juries and wtinesses

appellate courts

only decide questions of law concerning possible errors by lower courts; ensure fair trials

us district courts

federal trial courts

how many us district courts are there

94 federal district courts

us court of appeals

immediate appellate courts with 13 circuits

what circuit court is louisiana in (mcq)

5th circuit

us supreme court

highest appellate court with 9 justices for life

3 elements required for supreme court to take case

case involves a substantial issue

federal issue is crucial to decision

party seeking review exhausted all other state remedies

six sources of law (mcq)

constitutional

statutory

administrative

executive

common

equity

constitutional law

most powerful form of law; supersedes all other laws

statutory laws

statutes/ordinances enacted by a legislative body (us congress, state legislature, city council, etc.)

administrative laws

agency regulations that supervise and specify how laws are used

executive actions

law made by president or governor

common law

accumulation of court rulings overtime; establish and rely on precedents

precedents

how things were handled in the past; goal is to provide greater predictability and stability

stare decisis (t/f)

let past decisions stand; idea that judges will follow precedent

equity laws

allow judges to take action that's fair/just not involving money; allows for preventative/remedial action

US Constitution

oldest still in use today (1789); based on sound principles guarding against abuse of power and gov overreach

freedom of speech bedrock principle

government cannot punish expression just because it is offensive to other people

marketplace of ideas theory

states that the best ideas will tend to prevail over time; what legal system is based on

five core values of free speech (mcq)

self governance

check on political power

safety value

individual fulfillment

market place of ideas

private corporations are

not governed by the 1st amendment

prior restraint

government prohibits publication; stops dissemination of ideas before they can reach the public

chilling effect

inhibits others from communicating

prior restraints are only constitutional when

publication jeopardizes national security in war

obscene publications

publications that threaten to incite violence and/or violent overthrow of government

for prior restraint, danger must be serious and immient with

speech as a cause of danger AND

stopping speech will stop danger AND

no other alternative will work

content-based laws

regulate what is being expressed; generally unconstitutional

content-neutral laws

restrict where, when, and how ideas are expressed; time, place, manner laws and does not distinguish among ideas

scrutiny

level of constitutional review given; how much you give the government the benefit of the doubt

3 types of scrutiny

strict scrutiny

intermediate scrutiny

rational law

strict scrutiny

content-based laws; hardest on government

intermediate scrutiny

content-neutral laws; important but...; often less about protecting speakers and more about structuring gov. power

rational law

presumes law is valid; easiest on government

3-prong test to determine if restrictions violate first amendment (mcq)

regulation must be content neutral

must be narrowly tailored to serve a significant gov interest

must leave open ample alternative channels of communication

traditional public forum

land designed for public use and historically used for public gathering; intermediate scrutiny

designated public forums

government spaces or buildings that are available for use with/in limits; rational review

nonpublic forums

government held property that is not available for public speech and assembly purposes; restrictions here need only be "reasonable;" rational review

courts are often willing to uphold speech restrictions even when

fit is imperfect

alternatives are weak

burden on speakers feels substantial

first amendment protections are

not absolute

Schenk vs United States (1919)

key case on political speech; found that free speech protections in first amendment are generous, not limitless; created the clear and present danger test

clear and present danger test

speech restrictions will be upheld if necessary to prevent extremely serious and eminent harm

Brandenburg vs Ohio (1969)

reworked clear and present danger test into incitement test

incitement test

intent to incite/produce lawless action

imminence of lawless action

likelihood that speech will produce action

hess v indiana (1973)

further clarified the incitement test to ask if speech incites "immediate illegal acts;" found that imminence is critical

fighting words

words not protected because they cause immediate harm or illegal acts; incredibly narrow category; provoking others to violence

fighting word requirements

direct, personal insult

face-to-face confrontation

likelihood of immediate violence

true threat

unprotected speech; serious expression of intent to commit violence; committng violence yourself or making someone fear it

speech is protected unless likely to produce

clear and present danger of serious substantive evil rising far above public inconvenience, annoyance, and unrest (Terminello v City of Chicago 1949)

Hate Speech

not an established category of speech; not classified or protected as fighting words

incitement cases

ask when speech becomes dangerous enough to punish

symbolic speech cases

ask when conduct becomes meaningful enough to protect

US v O'Brien (1968)

burnt draft card during vietnam war; scotus determined that it was unconstitutional for O'Brien to do that because it was the only thing the law explicitly said he couldn't do; created O'Brien test

o'brien test

restriction with in constitutional power of government

does it further and important or substantial government interest

is regulation related to the suppression of expression

incidental restriction no greater than essential (narrowly tailored)

Texas v Johnson (1989)

determined government must show: important government interest and interest unrelated to suppression of expression; court said they could support laws of how flag was being displayed but couldn't support criminal punishment for it

Virginia V Black (2003)

expression of hate speech; court ruled in favor of Black and said that states can ban cross burning for intimidation but that you cannot say cross burning is automatically hateful; Thomas dissented

school speech

must balance freedom of speech vs interest in protecting/educating youth

tinker v des moines (1969)

arm band protest in schools; created the tinker test

tinker test

speech can only be regulated to prevent a "substantial disruption"

US v Alvarez

example of over broad law ct case; lied about receiving a congressional medal of honor and violated stolen valor act; scotus ruled unconstitutional in favor of alvarez

Near v Minnesota (1931)

gov ordered injunction of Near's publication "the saturday press" because it was in violation of the public nuissance bill; found that this prior restraint was unconstitutional except under specific circumstances