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IRAC Format for Cases

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1. Issue 2. Rule 3. Analysis 4. Conclusion

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First Amendment

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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.

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When was the First Amendment adopted?

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1791; hasn't been changed since

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14th Amendment

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Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws. No state shall... deprive any person of life, liberty or property without due process of law.

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Due process of law

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Denies the government the right, without due process, to deprive people of life, liberty, and property. Trial must be granted to all people accused of wrongdoing

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Gitlow vs. New York

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case in which supreme court decided that the Fourteenth Amendment extended the reach of certain limitations on federal government authority set forth in the First Amendment, specifically the freedom of speech and freedom of press

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Incorporation Doctrine

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Incorporating the 1st amendment into the 14th amendment by using Due Process Law when referring to "liberties"

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Symbolic Speech Doctrine

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courts treat conduct as speech if two elements are satisfied: 1. actor-the person engaging in the conduct must intend to convey a particular or specific message 2. audience-must be a great likelihood that some people who witness it will reasonably understand the particular message that was intended by the actor.

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Facial Challenges

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Laws appear to be constitutional but actually aren't because of vagueness or overbeadth

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Vagueness

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A law must give a person of "common intelligence" notice of what is prohibited, one that does not do so is VAGUE and prohibited under the First Amendment and Due Process.

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Overbreadth

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A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

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Example of Overbreadth

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A rule in prison that inmates cannot possess nude images is Overbreath because not only does it cover pornography, but it could apply to artwork or pictures of inmates' children

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Void for Vagueness Doctrine

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A law is void if on its face it is so vague that those of common intelligence must guess at its meaning and would differ as to its application

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Vagueness can mean...

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One man's vulgarity is another man's lyric Interpretation of "what is vague?" is subjective to the officer

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Why vague laws are problematic

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1. Chilling effect - people become scared and keep silent 2. Too much discretion to authorities

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Prior Restraint

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Censorship imposed before a speech is made or a newspaper is published; usually presumed to be unconstitutional.

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Subsequent punishment

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Restrictions on freedom of the press that occur after material is published.

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William Blackstone

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published "Commentaries on the Law of England" summarizing freedom of expression as having no prior censorship (prior restraint) and subsequent punishment

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Criminal Cases

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are always party vs. the state Loser of the case is named first

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Civil Cases

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Party that is appealing the case comes first

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Definition of Law

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1. Subsitive rules sanctioned and enforced by gov't that when breached punishment will be forced upon you 2. Set of procedures for peacefully resolving disputes 3. Social engineering - manipulation of people into performing actions 4. The law is a body of systematized prediction, if we know the law we can predict the outcome of behavior ex: tax law

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Criminal Law VS. Civil Law

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Criminal - Gov't vs. Someone -Case must be proven beyond reasonable doubt -Punishment: jail, prison, incarceration -Terminology: If prosecution wins found "guilty"

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Criminal Law VS. Civil Law

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Civil - private party vs. another private party -Case must be proven "more likely than not", therefore it is easier to win a civil case because it takes less to prove -Punishment: often a fine (damages) -Terminology: If found guilty you are "liable"

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Sources of Law

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Common Law Statutory Law Equity Law Constitutional Law/ Administrative Law/Regulations/Rules

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Common Law

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"judge-made" law, evolves over time, an inductive system Precedent - looking for past decisions in very similar or same circumstances to guidance today, useful to establish Judicial Legitimacy (making the courts legitimate/gain respect/maintain consistency)

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Ways to Handle Precedent

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1. Accept/ Follow 2. Modify/ Update 3. Distinguish 4. Overrule

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Stare Decisis

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Let the decision stand- notion of following precedent

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Equity Law

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Gives a judge great flexibility to create remedies Typical remedies being judicial decrees (court orders) Typical remedies: 1. Temporary restraining order (TRO) 2. Preliminary injunction 3. Permanent injunction Injunctions only occur if there is some type of direct injury and if it is something damages cannot compensate ex: Hulk Hogan got a TRO for Gawker for posting his sex tape

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Statutory Law

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created by legislative bodies Ex: city of Gainesville, state of Florida (STATUTES) Judicial interpretation - judge's interpreting laws Statutory construction - judge trying to construe the meaning of certain statutes

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Constitutional Law

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Two types: State and Federal US Constitution is the supreme law of the land State constitution can actually give more rights than federal constitution

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Judicial review

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Ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, est. in Marbury v. Madison

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Administrative Law

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Rules and regulations created by an administrative body Ex: Federal Communications Commission, Federal Trade Commission

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Lawrence v. Texas (2003)

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Example of overruling precedent U. S. Supreme Court overruled its 1986 opinion that had upheld a Georgia anti- sodomy statute prohibiting certain sexual acts between consenting gay adults.

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Citizens United v. Federal Elections Commission (2010)

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Example of overruling precedent voted to overrule previous case in the process of declaring unconstitutional a federal law that prohibited corporations and unions from using their treasury funds to independently pay for speech supporting the

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Diversity Jurisdiction

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Disputes between citizens of different states -Diversity jurisdiction can allow the case to be moved to federal court because federal courts are seen to be more neutral than state courts -Cases must have complete diversity AKA defendant and prosecutor must be from different states

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Federal Question Jurisdiction

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the case arises under a federal statute, federal treaty or the US constitution

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Summary Judgement

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Motion from one party to the judge to make a decision based upon everything they know from the discovery process of the case, there is clearly no way the plaintiff will win the case. Judge can accept or deny

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Bench Trial

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A trial before a judge without a jury.

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Level of courts

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Lowest - trial court Middle - Intermediate Appellate Court Highest - Supreme Court of state us district court, us appellate court, us supreme court

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Split Authority

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split decision among the lower courts in the US (like between federal courts or state courts). Supreme court more likely to hear

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AMICI CURIAE

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Friends of the court, organizations that are not parties in the case but are interested in the outcome of the case. Amici Curiae briefs are for the friends of the court to contribute knowledge and help to the case if needed

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Binding Precedent

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A decision of a higher court which must be followed by lower courts in the same hierarchy

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Majority opinion

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A statement that presents the views of the majority of Supreme Court justices regarding a case

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Dissenting Opinion

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A statement written by a justice who disagrees with the majority opinion, presenting his or her opinion

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Plurality Opinion

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A court opinion that results when a majority of justices agree on a decision in a case but do not agree on the legal basis for the decision. In this instance, the legal position held by most of the justices on the winning side is called a plurality opinion.

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Appellate Court

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A court having jurisdiction to review cases and issues that were originally tried in lower courts. 13 intermediate appellate courts in the US, Florida is no. 11

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Writ of Certiorari

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A formal writ used to bring a case before the Supreme Court. Issued by the court when it feels a certain legal question has been raised. If Writ of Certiorari is declined the previous court's decision is the final rule in the case.

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Rule of Four

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Requirement that a case can only be heard by the Supreme Court if four justices vote to hear the case

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Seditious libel

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The common-law crime of openly criticizing a public official

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Zenger Case

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The case that established the precedent that true statements about public officials could not be prosecuted as libel Most famous case of government censorship in the American colonies

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Zenger Case

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Jailed after his newspaper, New York Journal, published stinging articles about the current Gov'r, who surmised that by jailing Zenger, only 1 of 2 publishers in NY, he could silence his critics. Zenger's lawyer convinced the jury that no man should be imprisoned or fined for publishing criticism of the government that was both truthful and fair. Resulting in jury nullification of seditious libel law.

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Jury nullification

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In a criminal case, the process whereby the jury disregards, "nullify", the relevant law and renders a verdict based on what they believe is fair and just. a law that is repeatedly nullified by juries probably should be revised or discarded by the legislative body that created it.

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Original interpretations of the purpose of the First Amendment

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1. Some people argue that it was intended to block both prior censorship and prosecution for seditious libel 2. Others argue that it was intended to prohibit only prior censorship.

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Interpretations of the First Amendment

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Textualism - only take into account what is specifically mentioned in the text, leads to absolutist theory Original intent - Judicial Activism -

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Seven theories of the First Amendment

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1. Absolutist 2. Ad Hoc 3. Prefered Positioning Balancing 4. Meiklejohnian 5. Marketplace of ideas 6. Access 7. Self-Realization

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Absolutist Theory

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The government cannot censor the press for any reason. There are no exceptions, no caveats, no qualifications. The law is the absolute, final law. US has never adopted absolutist interpretation.

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Ad Hoc Theory

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When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values. This theory is determined solely on a case- by- case basis. Ex: when freedom of press is outweighed by need of military secrecy

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Preferred Positioning Balancing

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the balance is tilted - one of the rights is given a preferred position or more weight on the scales of justice.

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Meiklejohnian Theory

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Speech of matters of public concern/politics deserve the most protection at the top of the hierarchy. Meiklejohn argued that a broad range of speech is essential to successful self- government. Primary objective - successful self-government, protecting political speech Weakness - what is considered an important matter of public concern

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Marketplace of Ideas Theory

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the truth-seeking rationale for free expression Primary objective - seeking the truth, everything should be allowed to be exposed no matter how offensive Weakness - those with access to the most economical resources are able to control mass media, bad ideas still circulate

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Access Theory

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access to the metaphorical marketplace of ideas is not equal for all, but is skewed in favor of those with the most economic resources. Gov't must give you access to resources necessary. Usually limited to the broadcast realm. The access theory thus can be seen as a remedy to correct some of the laws of the marketplace of ideas theory.

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Self-Realization Theory

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Speech is important to an individual regardless of its impact on politics or its benefit to society at large. Primary Objective - self-expression Weakness - can be hedonistic when taken to an extreme

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Safety Valve

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we allow people to blow off steam through speech/by expressing themselves on different issues

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Checking Valve

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we protect speech because we need to keep a check on the gov't, Press considered the 4th branch of gov't

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Community Censorship

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The silencing of speech by private people or business entities, often as a result of pressure exerted by political activists, public interest groups and economic stakeholders.

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Heckler's veto

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public veto of free speech and assembly rights of unpopular groups by claiming demonstrations will result in violence Ex: Nazi march in Illinois

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Counter speech

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Remedy for speech that you don't like Ex: hold a rally/protest

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Viewpoint Neutrality

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When gov't is neutral on a viewpoint Ex: Prochoice v. Prolife

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1st Amendment Myth

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that it's first because it's more important. It was originally 3rd, but it became first by default when the first two were not used.

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Doctrinal Balancing

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Designed to facilitate or expedite judicial efficiency, the doctrines courts create have a balancing effect

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Precedent

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Looking for past decisions in very similar or same circumstances to guidance today, useful to establish Judicial Legitimacy (making the courts legitimate/gain respect/maintain consistency)

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Statutory Law vs. Common Law

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Statutes deal with problems affecting society or large groups of people

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Criminal laws are all

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Statutory laws

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As-applied challenges

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How a statute applies to a certain group of people or situation. Preferred method to use wen attacking a statute (vs. facial challenges method)

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