MEJO 341 MIDTERM 1 EXAM QUESTIONS FULLY SOLVED

Marbury v. Madison This established the power of courts to interpret laws. Stare Decisis What words mean let the decision stand? Refers to the notion that judges are generally expected to adhere to precedent. En Banc This means on the bench, An "XXX hearing" is before all judges of the court. Fighting Words The first amendment does not protect them, they are directed at an individual and automatically inflict emotional harm or trigger violence. Native Advertising With this, it is difficult to distinguish from the editorial content of the platform on which the ad appears. Substantiation Applies to the requirement that advertisers must verify or prove their claims The 6 First Amendment Rights 1. Establishment of religion 2. The free exercise of religion 3. Freedom of speech 4. Freedom of the press 5. Freedom to assemble 6. Freedom to petition Civil Litigation Timeline 1. Filing the complain 2. Service of process 3. Responding of the complaint (dispositive motions, the answer) 4. Discovery 5. Summary judgment 6. Trial Appeals Appeals may be taken by the losing party Appellant argues that the district court erred on specific issues of law (e.g., whether to admit certain evidence; content of the jury instructions, etc.) Appellate court considers only the record of the proceedings below (prepared by the parties), and the parties' briefs Trial Courts Fact-finding courts- required to hear both facts and laws in a case Appellate Courts Law-reviewing courts, usually consider only the law State Trial Court Can hear any kind of case, unless a federal statute states otherwise Trial court has original jurisdiction This court holds trials to determine the facts of cases 1 judge hears the case State Intermediate Appellate Courts Hear appeals from the trial court Typically, a 3 judge panel hears the case Usually divided into districts which hear appeals from certain geographic areas Appeal as of right (i.e., the loser has an appeal as a right) Some small states don't have one! State Supreme Court May or may not have to hear the case The Supreme Court almost always has the discretion of whether or not to accept the appeal (grant certiorari) Justices (odd number: usually 5 or 7) Supreme Court is likely to hear important public issues, novel legal issues, and issues on which the lower courts are split Writ of Certiorari Request to the Supreme Court that it review a lower court case. very small amount accepted Civil Law Several torts such as libel, invasion of privacy, right of publicity, and others. Breach of contract and fraud may also be civil claims. Copyright and trademark infringement may also be civil claims. Criminal Law Many legal concepts that create civil liability can also create criminal liability. Copyright and trademark infringement can be criminal (think of mass pirating of CDs or DVDs, for example). Obscenity laws and child pornography laws are criminal matters. Laws that regulate threats, harassment, profanity, or other kinds of speech may also be criminal matters. Common Law A type of judge-made law, is not written in a law book but is collected in volumes of case reporters that contain the decisions (opinions), handed down by courts. Case Law Supreme Court cases, and cases from other courts, form a collective body of cases known as Time, Place, and Manner Restrictions 1. Is the restriction justified without reference to the content of the regulated speech/is it content-neutral? 2. Is the restriction narrowly tailored to serve a substantial government interest (SGI)? Reasonable fit? 3. Does the restriction leave open ample alternative channels for communication of the information? Prior Restraint Is a court order or administrative system that keeps speech from occurring (e.g., a licensing system, a prohibition against using mails, an injunction). Prior restraints are not favored in our political system; the Court would rather allow speech and then punish it if it was unprotected. prior restraint must be narrowly tailored to achieve some compelling or, at least, significant governmental interest. The Court has also required that certain procedural safeguards be included in any system of prior restraint. Aeropagitica John Milton- which put forth an argument in favor of freedom of speech and press. In particular, he criticized the English licensing system. At the time, authors were required to get permission of the government prior to publishing anything. Milton argued that books and the ideas contained therein should not be restricted prior to publication. John Zenger He was arrested and criminally charged with libel in November 1734 after his newspaper published several stinging attacks on Cosby His attorney argued to the jury that the law was wrong; that men should be free to publish truths about government officials, even if they are unflattering; and that the jury should find Zenger not guilty in spite of the letter of the law. The jury returned with a not-guilty verdict. William Blackstone In 1769, William Blackstone, an influential English judge, published a book stating that freedom of the press should mean that no prior restraints are imposed on speech. Although men may be punished for their speech, governments should not restrict the speech first Freedom of Speech Includes -Freedom not to speak (West Virginia Board of Education v. Barnette) -The right of students to protest using black arm bands (Tinker v. Des Moines) -To use offensive words or phrases to convey a political message (Cohen v. California) -To contribute money (under certain circumstances) to political campaigns (Citizens United v. Federal Election Commission) -To advertise lawful commercial products and professional services (Virginia Board of Pharmacy v. Virginia Consumer Council) -To engage in symbolic speech like burning the flag (Texas v. Johnson). Marketplace of Ideas This theory asserts that ideas should be aired freely and that this will allow the public to compare competing ideas. The presumption is that truth will prevail. Justice Holmes's dissent in Abrams v. U.S., in which he said, "the best test of truth is the power of the thought to get itself accepted in the competition of the market." Alexander Meiklejohn He is most well known for his argument that freedom of speech naturally derives from principles of self-government. To self-govern, the people need access to information, facts, opinions, and ideas. Absent this kind of information, people can't make informed choices. Levels of Scrutiny Strict, intermediate, rational basis The relative importance given to the speech at issue and the presumption of protection the speech may receive Content Based Speech Strict Scrutiny it is presumptively unconstitutional for the government to place burdens on speech because of its content. To justify such content-based regulation of speech, the government must show that the regulation (or tax) is (1) necessary to serve (2) a compelling state interest and (3) is narrowly drawn and the least restrictive means to achieve that end. Content Neutral Speech Intermediate Scrutiny Such regulation will be upheld if the government can show that the regulations Time, place, and manner regulations fall under this (1) advance significant interests unrelated to the suppression of speech, (2) do not burden substantially more speech than necessary or are narrowly tailored to further those interests, and (3) leave open ample alternative channels for communicating the speaker's message Rational Basis Test The lowest form of judicial scrutiny. To pass rational basis review (1) the government must have a legitimate state interest in regulating the matter, and (2) there must be a rational connection between the law's means and goals. Under rational basis scrutiny, the means need only be "rationally related" to a conceivable and legitimate state end. The regulation will be upheld unless the legislature has made an arbitrary or irrational decision. Public Forum Government property held for use by the public, usually for purposes of exercising rights of speech and assembly Forum Analysis The extent to which government may regulate speech-related conduct depends on whether the forum involved is: a public forum a designated/ limited public forum a nonpublic forum Limited Public Forum Test The regulation must be viewpoint neutral and reasonably related to a legitimate government interest. Due Process There are certain substantive and procedural considerations that must be applied when evaluating the constitutionality of a law. Laws must not be vague, overbroad, or viewpoint-discriminatory, nor may they be applied in an arbitrary or capricious manner Facial Challenge This to a law means that the plain language of the law is so clearly unconstitutional that it cannot stand. For example, in U.S. v. Alvarez (2012), the Supreme Court invalidated the Stolen Valor Act, a law that punished false statements about having earned a military honor, because the Court found that falsity on its own was an insufficient basis for a law that bans speech. Doctrine Is a set of principles used to sort out issues and guide courts in making decisions. It attempts to categorize situations and ideas in a meaningful way. Commercial Speech Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.