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JOURN 4000: EXAM 1
Reductio ad absurdum
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Start with your opponents position and push it to its extreme
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Sources of Law
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· Common law (judge-made law)
· Legislative law ( statutes and constitutions)
· Administrative law ( bureaucracy-made law)
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Stare Decisis |
The doctrine that states precedents should be followed
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Precedent |
Holding: part of case that gives precedents
Dicta: part of the case that gives the "handwriting on the wall"
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Kinds of Precedent
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Binding
§ The court that is making the decision has no choice it has to adopt the earlier law.
Persuasive
§ They’ll like the logic or conclusion and will adopt it
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Roe v Wade |
Gives the right to abortion
Example of Dicta
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what decisions are binding? |
The lower federal courts do not bind state courts
State judges can bind federal judges on issues of state law
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Federal Law |
Deals with:
§ U.S. Constitutions
§ Treaties
§ Statutes passed by Congress
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State Law |
Deals with:
§ State Statues
§ State constitutions
§ State common law
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Certification |
Federal courts can ask state's highest court how it would decided a case.
If its a matter of state law the state sets the standards and federal courts are bond.
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Res judicata
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The case is decided. You can’t do anything.
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Writ of Habeas corpus |
When a criminal defendant believes their rights granted by the U.S. Constitution have been violated. They may write this.
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First Amendment (1791)
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“Congress shall make no law abridging the freedom of speech towards the press”
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First Amendment models
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1. No limits; no legal damages (anarchist Justice Black)
2. No limits; damages (Blackstone's model)
3. Some limits; damages (SC adopted this model)
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Marbury v. Madison (1803) |
Established the principles of judicial review
States : a law repugnant to the Constitution is void.
It was over subject matter jurisdiction
Without this case we wouldn't have freedom of expression
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Writ of Mandamus
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It commands a public officer to do his/her job
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Types of Jurisdiction |
Over subject matter:
Over person : person must live in the area
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Martin v Hunter’s Lessee (1816)
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Supreme court has the power to review the decisions of the states highest courts
AND
The power to strike those decisions down
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Fourteenth Amendment (1868)
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No state shall deprive any person of life, liberty or property without due process of law
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Gitlow v. New york (1925) |
S.C says that among the fundamental liberties are freedom of speech and press
The right not to speak (5th amendment)
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Fifth Amendment |
The right to be silent
Gives us the right to incriminate ourselves
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Brandenburg v Ohio |
Per curiam decision (short decision)
Brandenburg was Leader of KKK
Said the the government need to stop suppressing Whites of they would need to seek revenge.
Involves 3 part test
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Incitement Law Test |
3 part test (Incitement Law Test)
o Intent
o Imminence
o Likelihood
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Sedition |
Involves:
Treason
Seditious libel
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Treason/ Twynn(1663) |
An act of betrayal
Twynn was punished fro treason because he printed that people have the right to rise up against the king and even put him to death
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Seditious libel/ Star Chamber |
Crime of criticizing the government
You weren't killed but tortured
Prynn (1633) wrote actresses were "notorious whores'
He was branded with SL, put in prison, and his ears were cut off
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Alien and Sedition Act (1798)
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Crime to :
Conspire with others to oppose any measure of government
Publish any malicious facts about members of government or criticizing them
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Peter Zenger |
First Real case regarding Freedom of Press
Criticizes William Cosby the royal governor by publishing an anonymous piece and Cosby retaliated
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Schenck v. U.S. (1919)
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First SC court to interpret the First Amendment
The Espionage act of 1917
o You can be sent to prison for 20 years for obstructing military recruitment…this is still true
Leaflets were saying that the draft is a violation of the 13th amendment( right to be free of involuntary servitude)
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Oliver Windall Holmes
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He came up with the Clear and present danger test
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Plurality Decision
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o You don’t have a majority.
o It’s the highest number of votes that win.
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Per curiam Decision |
Short decision, 5 paragraphs long
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Judge Learned Hand |
Clear and present danger test formula
Gravity-improbability= invasion of free speech
High -low=speech not invaded
Low-High=speech invaded
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Supreme Court hears a case if: |
Involves Federal law
Has sufficient general significance
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Strict Scrutiny Test |
1. Content based
2. restricting public forum
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To pass a strict scrutiny test |
Must:
1) Show that the law is narrow tailoring
2) Show a compelling interest
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Symbolic speech |
Examples:
Black armbands
Burning a flag
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O'Brien test |
Flag Burning
4 part test
· Within the constitutional power of government
· Furthers an important or substantial government interest
· Interest is unrelated to the suppression of free expression
· Incidental restriction on alleged First amendment freedom is no greater than is essential to the furtherance of the interest.
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Jehovah's Witness |
Only person freed on sedition charges using the clear and present danger test.
Used Fighting words
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Natural Born Killers |
Oliver Stone
Most copy cat murders
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Hit Man |
Book should not be protected under First amendment.
The how-to-guide to murder people.
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Prior Restraint |
Involves Censorship
There are some words of symbolic acts that we can not allow. They are too dangerous, obnoxious, too obscene
**MUST be is a heavy presumption against prior restraint**
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In Loco Parentis |
Doctrine that a school is in the relation to a student of a parent to a child
School acts as if they are the parent
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Fighting words |
Words that may incite fights
Missouri law prohibits the disturbance of peace
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Hate Crimes |
R.A.V v. St. Paul
o Placing an offensive burning object like a cross to intimidated someone is outlawed.
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Ethnic Intimidation |
Increased punishment if victim is belonging to a specific ethnic group
Laundry list is acceptable.
Example:
Virginia v Black, KKK burn cross
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Injunction |
Enjoin the person that you want to shut down.
Mandatory: requires them to do something
Restraining: T.R.O (temporary Restraining order)
Preliminary: Both sides present
Permanent: Both cases must prove irreparable harm
Must prove irreparable harm or injury
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How to shut one down? |
Injunction
Prove irreparable harm or injury
Civil contempt- fined and sent to jail until you follow court orders
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Near v Minnesota (1931) |
This the case you use if anyone tries to shut you down
5 to 4 decision
Jane Near published an article that caused the death of a cop because someone reading didn't like it
Chief purpose: no prior restraint
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Allow prior restraint (4 cases)
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· Obstruction of military recruitment
· Troop movements
· Obscenity
· Incitements to violent overthrow of government
Acronym: TIOO
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T.R.O
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· ex parte- only one side shows up
· Bond requirement
· Limited lifespan
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Permanent Injunction
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ú No bond requirement
ú Both cases have to prove irreparable harm/injury
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Preliminary Injunction
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ú Both sides are present
ú Bond requirement
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Pentagon Papers |
Supreme Court heard the case in 13 days
John Marshall Said any more publication about the Pentagon Papers would cause irreparable injury the U.S. Defense interest.
Per curiam decision
Government declares mistrial because government misconduct, breaking into Ellsburg's office.
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Nick Emmett
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o Had a web site called the unofficial web site
o It included mock obituaries
o TV new story reported he posted a “hit list” of students to be killed.
Emmett pulled his website and the principal expelled him because of disruption
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Killion v Franklin School District
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o Killion compiled a top 10 list about his track coach
o Two involved things about the coaches private parts
o Copies got out and Paul was suspended
o Courts rule in favor of Paul and said Tinker applied.
§ No evidence that the teacher wasn’t able to teach because of the top ten list
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Tinker v Des moines school system
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· Symbolic speech. They were wearing black armbands.
· Opposing the Vietnam war
o You can express you opinions as long as you don’t:
§ Cause a disruption in school
§ Collide with the rights of others
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Papish vs. Board of Curators of MU
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· She handed out leaflets that had explicit words and pictures on it.
· 6-3 decision
· She sue MU and wanted an injunction from being kicked out of MU.
She won at the SC level
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Bong Hits 4 Jesus
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Morse v Frederick
Doesn't fall under Tinker standards
Student asked to put down the sign, refuses to, gets suspended.
· It would have been another case is it had a political message
· If student speech promotes use of illegal drug use then they can be suspended.
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Time, Place, Manner |
Government can not restrict content
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Public Forums |
Streets and public parks you can speak you mind.
As long as it is the the right time, place, and manner
Newspaper is not a public forum.
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Frisby v Schultz (Picketers) |
Anti-abortion picketers outside a doctors home.
· . The Town Board enacted and ordinance that prohibited all picketing in residential neighborhoods.
· This is a content-neutral statue. They prohibited picketing aimed at the resident of an individual.
They brought the 1983 act, SC rules against Picketers.
· The ordinance serves a significant government interest….the sanctity of the home.
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FACE (Freedom of Access to Clinic Interests)
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Federal law that says you can't by force or threat of force hurt someone because they received or provide reproductive health services
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J.S v Blue Mountain School District
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· Fake MySpace profile of the principal
· Third Circuit Court of Appeals upheld the decision and Blue Mountain won
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Naughty T-Shirts
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Cross dressing male was kicked out of private school.
o Private schools are not subject to 1983 action
1999 MU, student kicked out for wearing a FUCK Nebraska shirt
o Student didn’t sue but school said it was out of Student code of conduct
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Confederate Flag |
o It is acceptable if it doesn’t cause disruption or the likelihood of violence.
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1973 New Writer case (Indians)
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· Pawnee Indians came to school with their hair long and in braids
· They sued and SC didn’t rule in favor of the guys
· William Douglas dissented and said they were trying to express their heritage
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