JRLC 5040- Exam 1

2 case types

civil and criminal

civil case

plaintiff files lawsuit against defendant

criminal case

case is brought by govt (prosecutor) against defendant

what is sought in a civil case?

money

what is sought in a criminal case?

typically jail/prison time

civil burden of proof

the standard of proof in a civil case in which a judge or jury must believe the plaintiff’s story and evidence is stronger than the defendant’s version

criminal burden of proof

“beyond a reasonable doubt”

“beyond a reasonable doubt”

the level of proof required to convict a person of a crime

media law issues included in civil cases:

libel, invasion of privacy, copyright infringement, etc.

media law issues included in criminal cases:

many things that create civil liability can also create this

types of law

statutes, constitutions, regulations, executive orders, case

statutes

enforceable rules written by legislative bodies to govern social behavior

all criminal law is what type of law?

statutory

statutory laws are made by who?

judges

constitutions

most important law in media studies
-all provide freedom of speech and press
- there not law that can be inconsistent with the 1st amendment
- made by congress
- define governmental authority
- relationship between the federal government and the state governments and rights of individuals

who makes constitutional laws?

congress

regulations

- federal communications no indecent shows/radio during a certain time of day
- FDC: must provide evidence for claims made in advertisements
- Administrative agencies create, enforce courts
- every state has one
- uses the powers of all 3 branches of gov

executive orders

- instructs all inferior officers of the executive branch
- FOIA: Freedom of Information Act

cases

- judge is called to interpret the meaning of statute
- judge made law → common law
- requires individual to go into court & argue for a right → privacy law → money damages

principles of equity

first amendment

“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.”

first amendment theories

attainment of truth (marketplace of ideas)
Governance (Meiklejohnian)
Fulfillment
Check on government power (checking value)
Tolerance

categories of speech

political and social
advertising and non-obscene sexual expression
false advertising, fraud, child pornography, fighting words, true threats, obscenity, incitement

most protected forms of speech

political and social

advertising and non-obscene sexual expression

not every protected type is protected equally

false advertising, fraud, child pornography, fighting words, true threats, obscenity, incitement

some types get no protection

types of regulations

content-based regs
viewpoint-based regs
content-neutral regs

content-based regs

preemptively unconstitutional
removing an entire topic from the table

EX: you may not engage in speech regarding Tiger Woods

viewpoint-based regs

generally unconstitutional
regulating what is said about a topic

EX: When you speak about Tiger Woods, you must not speak negatively

content-neutral regs

constitutional if conditions are met
regulates speech/serves purpose other than regulating speech

EX: A city park has a local ordinance that says within the park, you may not distribute pamphlets

vagueness

law that’s void for vagueness is so unclear that people “of common intelligence must guess at its meaning and differ as to its application.”

overbreadth doctrine

invalidates laws that are so broad they punish both protected and unprotected speech

seditious libel

made it a crime to criticize the king, church or any officers

McNamara v. Freedom Newspapers

high school boys soccer game; accidental photo of kids genitals taken and posted to front page news; newspaper argues newsworthy and public pace with no expectation of privacy; court rules in favor of newspaper

attainment of truth (marketplace of ideas)

everyone is capable of rational thought

- The best ideas will be accepted by society
- gov should not decide what is right

marketplace of ideas weaknesses

- people are biased
- AI ha muddled marketplace of ideas

meilkejohnian (governance)

- argues that the entire purpose of 1st amendment was to advance process of self-government, which was mainly concerned with voting

- he says there is nothing the gov can do to regulate political speech

meiklejohnian theory weaknesses

- deemed too narrow
- not all people care about politics

self-fulfillment

- emphasizes free speech for self v. society
- should benefit the individual
- having an engaged, civil, personal life is important

self-fulfillment weaknesses

- not all speech is of equal of value, people may speak on their own terms of their own interests

checking value

- based on the idea that in society, government has a monopoly on raw power
- raw power: police, military
- free speech holds government accountable

tolerance

- developed in 1980's by Lee Bolinger
- original idea: we put up with distasteful speech because we want to protect speech that is more important
- new idea: the better we protect offensive speech the better we are at dealing with it and learning how to overcome it

tolerance theory weaknesses

- society may be able to move up and on, but an individual may be adversely affected by the offensive speech

what is a doctrine?

court-created law

strict scrutiny

it is the government's burden that it has a compelling government interest for the regulation; the regulation is narrowly tailored to achieve that purpose; if the government fails to prove either of these, the regulation will fail

intermediate scrutiny

a compelling government interest instead of significant government interest

true threat

a threat made directly to a person that is intended by speaker and understood by receiver to be a true and serious threat

fraud

the making of a factually false statement to influence one's behavior in order to benefit yourself and harm the subject

what are fighting words?

words that "by their very utterance inflict injury or tend to incite an immediate breach of peace"

- result in the target wanting to inflict physical harm

incitement

the action of provoking unlawful behavior or urging someone to behave unlawfully- incites violence, usually involved multiple people

EX: Everybody hates Jere Morehead and Dr. Peters starts incitement of violence

obscenity

equivalent of hardcore porn> rarely brought to court due to prosecutorial discretion (lawyers have more important things to worry about)

penumbra

presumed to be in the Constitution

explicit constitutional protection

listed in the Bill of Rights and 4th amendment
4th amendment- unreasonable searches and seizures

presumed constitutional protections

US Supreme Court reasoned that the protection exists in a penumbra (presumed to be in the Constitution)

EX: Adults have the right to engage in contraception and birth control

tort

civil claim for money damages

when media gets sued for privacy claim, it goes under 1 of 4 claims:
publication of private facts
intrusion
appropriation
false light (not recognized by all states)

statutory privacy

- find protections in state and federal statutes
- most of our privacy rights come from statutes

federal statutes
FERPA
HIPAA

personal notions

when we refer to privacy in this matter, we mean for people to stay out of our business; only legally enforceable if we tie them to a source of rights

publication of private facts

- the disclosure was public → mass media
- the facts were private → person tried to keep private
- publication of the facts is offensive to a reasonable person of ordinary sensibilities
- the facts were not newsworthy - not a matter of public concern*health info, grade transcripts, sex tapes, nudity, drug/alcohol abuse, finances

disclosure was public

- the public generally at large
- published using any form of mass media
- not a small group, unless... "segmented group" -> think of a school; self-contained community, can satisfy element #1

facts were private

- there's no specific definition of "private," but courts generally consider information private if:
1. it's the kind of information most people would want to keep private, and
2. the person at issue actually did try to keep it private

ex of private facts

-health info
-grades/educational info
-drug or alcohol abuse
-financial info
-nudity, sex tapes, info about sexual activity or orientation
-address or phone number not publicly available

ex of public facts

-matter of public record
-info was previously disclosed
-info was revealed in a place with no expectation of privacy

statute of limitations

-varies by state
-dismissal
-expiration date to file claims by

consent

-somebody has given you permission to reveal private info about him or her
-ideally written
-scope

appropriation

-using someone's name or likeness; for a commercial purpose without consent
-person doesn't have to be famous
-can be done in various ways: pictures, look-alikes, sound-alikes, cartoons, nicknames and catch phrases

state court order

trial>appellate>highest

federal court order

district>circuit (appeal)>supreme

trial court

fact finding
- makes decision based on evidence
- determine liability

appellate court

ensure that the trial courts use the proper procedures and apply the law correctly

- no jury, no new evidence
- do not retry cases
- can overrule TC

criminal law prohibits

antisocial behavior as defined by statute

bad tendency test

permitted suppression of almost any expression that presented a vague danger to social or personal interests

clear-and-present-danger test

provides more protection for freedom of expression by prohibiting speech only when there is clear evidence of an incitement to lawless action

ad hoc balancing

a judicial weighing, case by case, of reasons for and against publishing to determine whether expression may be halted or punished

ad hoc balancing is flexible but unpredictable because it relies little on previous cases or set standards

private facts tort

the highly offensive revelation of true, private information that is not newsworthy

how many judges in appellate court?

3 judges
2/3 vote

do you have the right to appeal your trial court case to the appellate/circuit court?

yes, but will be thrown away past that court

deep circuit split

occurs when many court circuits disagree on a decision on similar cases; ex: Brown v Board

FCC

federal communications commission (radio, tv. etc)

FEC

federal election commission

FTC

federal trade commission

FDA

food and drug administration

SEC

securities and exchange commission

executive orders/actions

- president exercises power by appointing regulators (members of FCC, etc)
- Federal level: President
- State level: Governors

bill of rights

ball & chain (says what gov cannot do)

cases

- one party in a dispute with another party about facts or what a law/regulation says
- solved by judicial opinion

common law

- judicial decisions based on custom and tradition
- based on "precedence" and the judicial policy of "star decisis"
- a judge decides a case by applying the law established by other judges in earlier cases

star decisis

let the decision stand

when is common law necessary?

when a statute or constitutional provision is not applicable

equity

allows courts to take action that is fair and just

- provides alternatives to legal remedies available through common law

how many court systems?

52
one for the federal government, one for the District of Columbia and one for each state

America the backstory: Colonial America (pre-revolutionary)

- the King exercised large amounts of power through licensing and cracked down on seditious libel
- everything printed had to be approved by him
- crime to be critical of the king

in 1789

constitution ratified

from 1791-1798

made our own sedition act from John Adams and his administration (the Alien and Sedition acts)

- now a crime to criticize the gov

Laws are not made finals but are made with a "____ ____"

sunset clause

sunset clause

law can be reconsidered after time

state action doctrine

we have 1st amendment rights against ONLY gov actors

- private entities are not constitutionally capable of violating your rights and only gov actors are

Richard Nixon (1970's)

a study of U.S. policy in ____ about how or not to prosecute the war

leads into the ___ ___, which all took place in 2 ____

major story in the 1st amendment cases

prior restraints are unconstitutional and must jump over a huge hurdle to be passed

- vietnam
- Pentagon Papers; weeks

Paul Branzburg (1970's)

- A reporter who wants to write a story on teens running a drug operation
- he keeps them anonymous while writing about them, but gets a issued a subpoena
- Refuses to reveal identities claiming the 1st amend protects him, but it's not applicable to the courts
- Goes all the way to the Supreme Court with a 5-4 vote against him
- Most state and lower courts grant reporters 1st amend rights for refusal to testify, but does depend on the circuit and case

Frank Collin (nazi leader but in the USA)

- Decided to march through a largely Jewish community in Illinois
- City officials passed several ordinances to fire back
- Collin tries to overturn them to no avail
- David Goldberger of U.S. Civil Union represents Collin for 1st amend interest, despite personally Jewish; brings a problem of viewpoint discrimination and Goldberg wins his cases at every level
- ...but he was shunned from his religious community and forced to stay apart from his family for a while, which resulted in divorce
- The wins came at a price