SMAD 450 - Exam One

Exam 1 Study Sheet: Key Legal Concepts

Sources of Law:

1. Constitutional Law:

   • Supreme law of the land; U.S. Supreme Court has final interpretation.

   • Article 3 establishes the court system.

2. Statutory Law:

   • Laws enacted by legislatures, addressing broad societal issues.

   • Found in code books, examples include criminal laws.

   • Black Letter Law: Clear, unambiguous rules.

3. Administrative Law:

   • Rules from government agencies (e.g., FCC, EPA).

   • Courts often defer to the expertise of agencies.

4. Executive Actions:

   • Orders from the president, including executive orders and appointments.

5. Common Law:

   • Judge-made law based on precedents (Stare Decisis).

   • Judges may modify, distinguish, or overrule precedents.

6. Law of Equity:

   • Preventative or remedial actions (e.g., Temporary Restraining Orders).

   • Originated to provide remedies where common law was insufficient.

Court System & Procedures:

1. Court Citation Format:

   • Example: Adderly v. Smith, 385 US 39 (1966)

     • Adderly = Plaintiff, Smith = Defendant

     • 385 = Volume, 39 = Page, 1966 = Year.

2. Appeals:

   • Constitutional right to 1 appeal.

   • Appeal grounds: Violated constitutional rights, unconstitutional law, overbroad laws.

3. Court Terminology:

   • Amicus Brief: A "friend of the court" brief.

   • De Novo: New evidence at appellate level.

   • En Banc: Full appellate court hears case.

   • Writ of Certiorari: Petition to the Supreme Court to hear a case (requires 4/9 justices).

   • Moot: Ruling no longer relevant to the case.

   • Remand: Send case back to lower court with new guidance.

4. Court Opinions:

   • Majority Opinion: Court's decision.

   • Concurring Opinion: Agrees with majority, different reasoning.

   • Dissenting Opinion: Disagrees with majority.

   • Per Curiam: Unsigned opinion, based on briefs alone.

   • Shadow Docket: Court motions/orders that haven’t reached final judgment.

Constitutional Amendments:

1. First Amendment:

   • Protects speech, religion, press, assembly, and petition.

   • Restrictions can apply in specific settings (e.g., schools, workplaces).

2. Fifth Amendment:

   • Protects against prior restraint, self-incrimination, and double jeopardy.

3. Sixth Amendment:

   • Right to a speedy, public trial.

4. Fourteenth Amendment:

   • Protects against state deprivation of life, liberty, or property without due process.

Judicial Review & Case Law:

1. Judicial Review:

   • Established in Marbury v. Madison, allows courts to strike down unconstitutional laws.

2. Common Law:

   • Judge-made law based on precedent, especially at the state level.

   • Courts use statutory construction when the statute is unclear.

3. Jurisdiction:

   • General Jurisdiction: Court can hear a wide range of cases.

   • Specific Jurisdiction: Court has authority based on the defendant's activities in the jurisdiction.

4. Due Process:

   • Ensures fair application of law and judicial process.

Criminal Law Classifications:

1. Crimes Against the Person:

   • Murder, manslaughter.

2. Crimes Against Habitation:

   • Burglary, arson.

3. Crimes Against Property:

   • Theft, larceny.

4. Crimes Against Morality & Decency:

   • Vagrancy.

5. Crimes Against Public Safety:

   • Nuisance laws.

Legal Terms & Definitions:

1. Voir Dire:

   • Jury selection process (questioning potential jurors).

2. Tort Law:

   • Deals with civil wrongs and compensation.

3. Motion to Dismiss:

   • Request to reject a case because of insufficient grounds.

4. Strict Liability:

   • Plaintiff doesn't need to prove fault in some cases (e.g., product liability).

Freedom of Speech:

1. Not All Speech is Protected:

   • Fighting Words: Words that provoke immediate violence.

   • True Threats: Speech intended to intimidate or threaten.

   • Hate Speech: Offensive speech directed at individuals or groups.

   • Symbolic Speech: Non-verbal expression (e.g., flag burning).

2. Clear and Present Danger:

   • A test for limiting speech, later evolved into the Incitement Test.

Important Case Laws:

1. Marbury v. Madison (1803):

   • Established Judicial Review—courts can strike down unconstitutional laws.

2. Near v. Minnesota (1931):

   • Prior restraint is generally unconstitutional.

   • First time the USSC declared a state's pre publication statute as unconstitutional, thus, declaring all prior restraints unconstitutional 

3. Gitlow v. New York (1925):

   • First case applying First Amendment protections to the states.

   • They guarantee every individual in the US rights granted to them in the constitution, because of the due process clause of the 14th amendment 

   • You can restrict speech because of the history of bad results accompanying that speech

     1. Historically proven to result in evil, bag things, crime occuring 

4. Grosjean vs. American Press (1936)

   • The USSC ruled a discriminatory state tax placed on newspapers or certain circulation size was prior restraint and unconstitutional

5. New York Times v. US (1971)

   • First time the US government filed an injunction against a newspaper

   • 6-3 decision determined at the US gov had not met its burden of proof to prior restraint the press 

6. Minneapolis Star and Tribune v. Minnesota Commissioner of Revenue (1983) 

   • USSC determined that the tax was discriminating against large papers was prior restraint 

7. Arkansas Writers Project, Inc. v. Ragland (1987)

   • USSC ruled tax was unconstitutional discriminatory (AR imposed tax on sales of general circulation of magazines but not on religious, professional, etc.)

8. Cox Broadcasting vs. Cohn (1971)

   • The USSC ruled that a state does not have the right to punish the media if information is obtained in a courtroom. Law is unconstitutional 

9. Landmark Comm, Inc. v. Virginia (1978)

   • The USSC declared that Virginia could not punish the media for publishing truthful info about a confidential judicial inquiry. Law in unconstitutional 

10. Kovacs v. Cooper (1949) 

    • Sound ordinance (locals can limit loud noise)

    • Greater protection to the 1st amendment freedoms when they clash with our rights 

    • We can't silence you, but we can make you quieter

11. Chaplinsky v. N.H. (1942)

    • Speaking out against Catholic Church 

    • “Fighting Words” ruled as not protected by the first amendment 

12. Whitney v. California (1927)

    • Clear and Present danger doctrine convicted that she was guilty by association 

13. Brandenburg v. Ohio (1969)

    • Brandenburg is the leader of the KKK in Ohio

      1. Gives speech that's recorded by the media. Says congress is taking away White rights. If they continue we will have to take our guns to DC

      2. Clear & Present Danger exists when there is an imminent lawless action likely to succeed. 

      3. Brandenburg conviction was reversed due to this interpretation of clear and present danger 

14. Dennis v. US (1951)

    • Dennis is an open commy and the US says theyll prosecute him (but we had no laws against it)

    • The Smith Act of 1945

      1. We can prosecute individuals advocating the political decisions of our enemies 

    • Uphold his conviction 

    • Yates Case same as Dennis 

15. Smith v. Mail Daily Pub Co. 

    • Two newspapers identified a 14-year-old who shot and killed a classmate in Jr High School

    • USSC ruled that a WVA statute was overbroad because it singled out only newspapers for punishment 

      1. Court did say a state can punish the media for truthful info “to further the interest of the highest order” 

16. US. v. Progressive (1979)

    • Both Prior Restraint & Regressive Legislation 

    • Federal Judge stopped the progressive from publishing a article about how to build a H-Bomb

      1. Although the article was based on public information it violated the atomic energy act 

      2. Progressive changed the article and published it with blank panges

      3. The government was successful in restraining the publication and ultimately altering the context of the article 

17. Snepp v. US 

    • Snepp published a book, Decent Interval

    • He violated his CIS NDA contract by publishing beofre submitting the manuscript to the CIA 

      1. He was retired and wrote about the CIA (violating his contract)

      2. Non disclosure employment contracts are not prior restraint and are not unconstitutional 

18. Morison v. US (1988)

    • Samuel Moorison took photos of a Russian Aircraft carrier and tried to sell it

    • The US didn't want the Russians to know we had it 

    • Importance: The government may punish an individual for leaking national security to unauthorized persons in peacetime 

19. Florida Star v. BJF

    • Similar to the Smith and Daily Mail Case

    • Published the name of a rape Victim from an accidental press release

    • Importance: USSC ruled a media defendant cannot be punished for a lawfully gained information 

      1. If the statute was drawn more narrow they may have been punished 

First Amendment: Key Court Cases & Concepts Study Sheet

Important Prior Restraint Cases:

• Pentagon Papers (New York Times v. US): Press freedom vs. government secrecy, established limitations on prior restraint.

• Near v. Minnesota (1931): Prior restraint is generally unconstitutional, press cannot be censored by the government in advance.

Content-Based Laws:

1. Strict Scrutiny:

   • Government must use the least restrictive means to advance a compelling interest (highest priority constitutional concerns).

2. Compelling Interest:

   • The government’s interest must relate to core constitutional functions or vital societal concerns.

3. Intermediate Scrutiny:

   • Speech may be restricted only if it advances an important government interest unrelated to speech, while restricting speech as little as possible.

O'Brien Test (Used for Intermediate Scrutiny):

• Unrelated to suppression of speech

• Advances an important government interest

• Narrowly tailored to achieve the interest.

Key Supreme Court Cases:

1. Texas v. Johnson (1989):

   • Facts: Flag burning protest at the 1984 Republican National Convention.

   • Outcome: Flag burning is a protected form of symbolic speech under the First Amendment.

2. R.A.V. v. City of St. Paul (1992):

   • Facts: Cross burning as hate speech.

   • Outcome: Unconstitutional content-based regulation of speech (city ordinance targeting specific categories of "fighting words").

3. Hazelwood School District v. Kuhlmeier (1988):

   • Facts: High school principal censored student newspaper.

   • Outcome: Schools can censor student publications, but not college/university press.

4. Miami Herald v. Tornillo (1974):

   • Facts: Newspaper refusal to publish a reply to political criticism.

   • Outcome: Newspapers have stronger First Amendment rights than other media, cannot be forced to publish replies.

5. Virginia v. Black (2003):

   • Facts: Cross burning law challenged in Virginia.

   • Outcome: States can criminalize cross burning only with intent to intimidate.

6. Citizens United v. FEC (2010):

   • Facts: Citizens United wanted to air an anti-Hillary Clinton film, challenged restrictions on corporate political spending.

   • Outcome: Supreme Court ruled corporations and unions can spend unlimited money in elections, striking down parts of BCRA.

7. 303 Creative LLC v. Elenis (2023):

   • Facts: A Christian web designer refused to make wedding websites for same-sex couples.

   • Outcome: First Amendment protects the designer’s right to refuse service based on beliefs.

8. Counterman v. Colorado (2023):

   • Facts: Repeated "creepy" Facebook messages considered a "true threat."

   • Outcome: The court ruled that a subjective understanding of the threat is required to prove a "true threat."

Key Legal Terminology:

• Obscenity: Legally defined; not protected by First Amendment if declared obscene.

• Indecency: Term applied by the FCC to regulate broadcast content.

• Pornography: Generic term (not a legal term); regulated, but not illegal unless it involves child pornography.

• Prurient Interests: Lustful thoughts or desires.

• Patently Offensive: Explicit sexual conduct.

• Sexting: Sending explicit images of minors (illegal).

• DeepFakes: Manipulated visuals, typically malicious.

• Sextortion: Threatening to expose private material unless sexual favors or images are provided.

Obscenity and Related Cases:

1. Regina v. Hicklin (1868):

   • Significance: The first case addressing obscenity, used the “Hicklin Test” — isolated passages harmful to children.

2. Roth v. US & Alberts v. California (1957):

   • Roth Test: Obscenity is judged by the average person; work must be judged as a whole, must lack redeeming social importance.

3. Miller v. California (1973):

   • SLAPS Test: Obscenity defined by average person, contemporary community standards, prurient interests, patently offensive content, and lacking Serious Literary, Artistic, Political, or Scientific (SLAPS) value.

Pornography Legislation:

1. Comstock Act (1873): Made the mailing of obscene material illegal.

2. Child Protection Acts (1977, 1990, 1996, etc.): Series of laws to regulate and prevent child sexual exploitation and pornography.

3. Ashcroft v. Free Speech Coalition (2002): Struck down the law banning virtual child pornography.

Other Key Court Cases:

1. Stanley v. Georgia (1969): Private possession of obscene material for personal use is protected.

2. Young v. American Mini Theaters (1976): Zoning ordinances restricting adult businesses near sensitive areas (churches, schools) are constitutional.

3. Reno v. ACLU (1997): Struck down the Communications Decency Act; Internet communications deserve the highest First Amendment protection.

4. Brown v. Entertainment Merchants Association (2011): Government cannot ban violent video games for minors.

5. U.S. v. Williams (2008): Upheld the PROTECT Act criminalizing the advertisement of child pornography, even if not explicitly depicting children.

Review Questions:

1. First Amendment Executive Action: Examples of federal court appointments.

2. Court Citation: "Fed Supp" refers to a decision from the Federal District Court.

3. Federalist Views: Hamilton supported a strong federal government, while Madison supported state rights.

4. First Obscenity Statute: Comstock Act.

5. First Amendment Protection for Press: Near v. Minnesota ruled prior restraint is usually unconstitutional.

Prior Restraint: 

• Collateral Bar Rule: 

  • A party to whom an injunction is issued must obey that order until it is dissolved or reversed on appeal - the defendant can not claim in contempt of court that the order he violated is invalid.

  • Reporters have a choice they may either violate the order and risk contempt convictions or comply with its terms and seek reversal on appeal

Courts of Record 

• Supreme court of VA (Law Reviewing Court)

• Court of Appeals (Law Reviewing Court)

• Circuit Courts (First court of record - fact finding court)

Courts not of Record

• General District Courts 

• Juvenile & Family Relations Courts (Divorce + Adoption Court - Child Custody)

• Magistrates 

Historical Influences 

• Legal Influences

  • William Blackstone, England

    • First judge to codify his decisions 

    • Advocate against governmental prior restraint 

  • John Peter Zenger, 1733

    • Facts: Printers were responsible for printing Libel 

    • Andrew Hamilton (lawyer) tries to change the law.

      • He Argues:

        • I should be able to argue the truth of the info and the jury can determine if it is true

        • Truth is a defense. If I can argue it’s true then it should be able to defend more. 

      • Jury ruled that Zenger was not guilty

    • He was in a fact finding court 

  • Crosswell Trial of 1800s

    • Andrew Hamilton argues the same thing as the Zenger trial on the appellate level 

    • Croswell was initially charged with Seditious Libel

      • New York Legislatures hearing Hamilton's argument, passed a truth in Libel bill to protect individuals who truthfully criticize 

  • English Restictions - Stamp Act

    • Tax Act 

    • Tax of tea, paper

    • Restriction of communication

  • Declaration of Independence 

  • Articles of Confederation 

    • First failed constitution of the US 

  • Constitutional Convention 

    • No members of the press were allowed to cover it

  • Madison v. Hamilton 

    • Madison Argued that we don't want a strong federal government. Due to us getting out of war with the King. Wanted to give power to the states

    • Hamilton wanted a strong federal government that could help the states

  • Bill of Rights 

    • Strong centralized government while still giving the states power 

  • Alien & Sedition Act

    • Cap on immigration and limits particularly French from coming into our country 

  • Espionage Act of 1917

    • Federal law that made it illegal to engage in activities that could harm us during war time 

    • Employed the clear and present danger doctrine 

  • Grand Juries

    • Cannot determine the guilt of the accused 

Libel

• Sedition 

  • Criticize the form of the government 

• Seditious Libel

  • Directly criticism at a specific governmental individual 

Philosophical Influences

• Milton's “Areopagitica”

  • Truth has no chance if it is silenced 

  • Ex. Women's Rights

• Locke’s “Self-Righting Process”

  • Got to allow open, robust debate

Syndicalism 

• If you get two or more people together to do a nefarious activity. 

  • Ex. Mafias 

  • Ex. To overthrow the government 

Balancing AD, Categorical, Defininonal 

• Balancing AD

  • Considers the unique facts of each case, rejects broad tests 

• Defininonal 

  • Balances the interests of competing speech and government regulation 

  • Creates rules to be applied to future cases 

• Categorical 

  • Establishes categories and then focuses on threshold characterization 

  • Lead to briefs and arguments that focus on threshold characterization instead of comparative analysis 

Repressive Legislation 

• If the courts can argue that can be of higher value than the 1st amendment, that Repressive Legislation is not Legal

Content-Based Laws

• Strict Scrutiny 

  • High burden on the legislature's most restrictive judicial test. Use least restrictive means to advance governmental interest 

• Compelling Interest

  • Interest of the highest order that relates to the core constitutional concerns on the most significant functions of the government 

  • In our interest of the highest order, we want to make sure that the government is acting constitutionally, so at the core constitutional rights (speech and press) need to be protected, which sometimes means that they can restrict those first amendment rights