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Media Law – Flashcard

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Why is it that even state university students may speak, write and publish freely? In other words, how does the First Amendment apply on public college campuses?
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A state university or college campus is a marketplace of ideas encompassed by the First Amendment, which prevents school administrators from censoring students’ constitutionally protected freedoms of speech and press
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What do the acronyms FLSA and WHD stand for?
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Fair Labor Standards Act Wage and Hour Division
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How many judicial systems are in the United States?
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52 different judicial systems
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What is the wording of Article II, Section 22?
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Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press
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Which federal constitutional amendment protects the First Amendment freedoms of speech and press against restrictions by whom?
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14th amendment – it restricts the power of states and local
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State colleges and universities are not enclaves immune from what?
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Its sweep from the sweep of the First Amendment
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May government officials censor speech simply because they don’t like the message?
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Government may not censor speech
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What are the distinctions between trial courts and appellate courts
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Trial Courts Fact-Finding Courts First Instance, the place where nearly all cases begin Juries Considers both the facts and laws in a case Facts are what happened Appellate Courts Law-Reviewing Courts No juries Only the law in cases Law is what should be done because of the facts
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Prepublication censorship that forbids publication or broadcast of certain objectionable material, as opposed to punishment of a perpetrator after the material has been published or broadcast
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Prior Restraint
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Interns in the for-profit private sector who qualify as employees rather than trainees typically must be paid what?
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At least the minimum wage and overtime compensation for hours worked over forty in a workweek
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The party who initiates or takes the appeal of a case from one court to another
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Appellant or Appellee
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Explain which positivist First Amendment theory the Oklahoma Supreme Court has adopted when interpreting the provision. What is the purpose of Article II, Section 22?
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Adopted a Meiklejohnian interpretation of the provision It is intended to protect the public by protecting the vigorous discussion of issues needed for a democracy
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Understand the circumstances under which an internship is more likely to be considered an extension of the individual’s educational experience rather than employment.
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The more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations it becomes nonprofit. The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern
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Which court is mandated by the U.S. Constitution and cannot be abolished by Congress?
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U.S. Supreme Court
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How is “law” defined for the purposes of the Pember textbook?
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A set of rules that attempt to guide human conduct and a set of formal, governmental sanctions that are applied when those rules are violated
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The person against whom relief or recovery is sought in a civil lawsuit; the individual against whom a state criminal action is brought
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Defendant
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Explain whether free speech in Oklahoma is limited to the news media
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But the provision grants freedom to more than just newspaper publishers and other members of the news media; Freedom of speech and press “belongs to every person,” the Oklahoma Court of Criminal Appeals has said; That includes non-English speakers, the state Supreme Court emphasized in 2002
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What are the six criteria that must be met for an internship to not be considered employment?
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1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision of existing staff; 4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 5. The intern is not necessarily entitled to a job at the conclusion of the internship; and 6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
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In which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts
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Inductive System
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Disputes between citizens of different states
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Diversity of citizenship action
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Explain if Oklahoma’s provision applies to the right to distribute information
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Oklahoma’s constitutional guarantee “contemplates not only the right to print, but also the right to distribute,” the court said
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Is common in many other states, the rules is expounded first and then the court decides the legal situation under the existing rule.
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Deductive System
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May the employer generally use unpaid internships as a trial period for individuals seeking employment at the conclusion of the internship period?
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Unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA.
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Common law is
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An inductive system in which a legal rule and legal standards are arrived at after consideration of many cases involving similar facts
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The power of a court to declare void and unenforceable any statute, rule or executive order that conflicts with an appropriate state constitution or the federal constitution
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Judicial Review
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Does Oklahoma’s Constitution provide more protection than the First Amendment? Explain.
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The U.S. Supreme Court acknowledges that state courts could interpret their constitutions as providing broader protection for speech and press rights than the First Amendment; Oklahoma’s Supreme Court, in turn, has compared “every person may freely speak, write, or publish his sentiments on all subjects” to “Congress shall make no law … abridging the freedom of speech …” ; Concluding that Oklahoma’s language provides more protection than that of the First Amendment
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In Oklahoma, the common law remains in full force unless what? How is that determined?
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A statute explicitly provides to the contrary; It must be clearly and plainly expressed
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An unsigned court opinion; The author of the opinion is not known outside the court
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Per Curiam
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Understand the circumstances under which an internship is more likely to be considered employment rather than an extension of the individual’s educational experience.
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On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work.
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Tell the government what it cannot do; These rights limit government and prevent it from affecting certain behaviors of its citizens
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Negative Rights
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How many justices sit on the U.S. Supreme Court?
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Comprised the chief of justice of the United States and eight associate justices
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What concept is fundamental to the common law?
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The concept that judges should look to the past and follow court precedents
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An individual who initiates a civil lawsuit
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Plaintiff
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The FLSA makes a special exception under certain circumstances for individuals who volunteer to do what for whom?
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The FLSA makes a special exception under certain circumstances for individuals who volunteer to perform services for a state or local government agency and for individuals who volunteer for humanitarian purposes for private non-profit food banks.
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How are the justices selected? What role do Oklahoma voters play in removing Oklahoma’s appellate justices and judges?
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Justices are appointed by the Governor from the list of candidates presented by the Judicial Nominating Commission. The justices and judges stand for retention by Oklahoma voters on a six-year rotating schedule
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Understand the term stare decisis. Why is following precedent beneficial?
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“Let the decision stand” It builds predictability and consistency into the law —which in turn fosters judicial legitimacy • Courts may be perceived as more legitimate in the public’s eye on their decision-making process
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A Supreme Court opinion in which five justices cannot agree on a single majority opinion—there is no opinion of the court—but that is joined by more justices than any other opinion in the case
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Plurality
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What are the basic rules regarding prior restraint?
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1. Prior restraints on speech by the government are presumptively unconstitutional The burden falls on the government to prove in court that a prior restraint is justified 2. The government’s burden is high, with courts often requiring it to prove there is a compelling interest or an interest of the highest order justifying the restraint 3. The scope of any prior restraint must be very narrow, so as not to stop publication of any more speech than actually is necessary to effectively serve the government’s allegedly compelling interests 4. Speech that falls outside the scoop of First Amendment protection can be restrained by the government, but only after a judicial proceeding in which a court has determined that the speech indeed is not protected
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What are the four options a court has when faced with a precedent?
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Accept/Follow Modify/Update Distinguish Overrule
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How many justices sit on the state Supreme Court? How long do they serve?
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The Oklahoma Supreme Court is a constitutional tribunal consisting of nine Justices ; Each Justice is selected from one of nine judicial districts and sits for a six-year term
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Usually cases are returned to the trial court for resolution with instructions from the appeals court to the trial judge to decide the case; In this case the trial judge can often do what he or she wants
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Remand
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The WHD also recognizes an exception for individuals who volunteer their time, freely and without anticipation of compensation, for whom?
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WHD also recognizes an exception for individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations. Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. WHD is reviewing the need for additional guidance on internships in the public and non-profit sectors.
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Tell the government what it must do and citizens what they are entitled to; Such “entitlements” may include social, economic, and cultural rights in the form of government guarantees of various social indicators
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Affirmative Rights
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What is the “hunch theory” of jurisprudence?
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A judge decides a case based on a gut feeling of what is right and wrong and then seeks out precedents to support the decision
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How does a court construe seemingly conflicting statutes?
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A “specific statute controls over one of more general applicability and the most recent enactment controls over an earlier one
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Does Oklahoma’s Constitution offer absolute freedom of speech and press? Explain
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But freedom of speech and press under the Oklahoma Constitution “is not absolute” Unlike the wording of the First Amendment, the state Supreme Court has noted, Oklahoma’s constitutional guarantee of free speech and press carries with it an explicit “responsibility for an abuse of that right”
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What is a designated public forum?
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Places created by the government to be used for expressive activities, among other things
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How is Oklahoma’s structure different from most other states?
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Unlike most states, Oklahoma has two courts of last resort. The Supreme Court determines all issues of a civil nature, and the Oklahoma Court of Criminal Appeals decides all criminal matters. Also in that civil appeals from the district courts are not automatically made first to an intermediate appellate court
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What is a better solution to hate speech than censorship?
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More speech
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Who is the chief justice of the United States?
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John Roberts
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Which courts are binding upon which others under which circumstances?
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Decisions by the Supreme Court of the United States regarding the U.S Constitution and federal laws are binding on all federal and state courts Decisions by the U.S. Court of Appeals on federal matters are binding only on other lower federal and state courts in that circuit or region The supreme court of any state is the final authority on the meaning of the constitution and laws of that state, and its rulings on these matters are binding on all state and federal courts in that state
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A writ by which an appellant seeks the review of a case by the U.S. Supreme Court; When the writ is granted, the court will order the lower court to send up the record of the case for review
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Writ of Certiorari
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Why is the difference between affirmative and negative important?
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Oklahoma’s specifically secures an “affirmative” right to speak, write and publish while the “negative rights” found in the First Amendment simply require that Congress not abridge those freedoms
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Constitutions can come in what forms?
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Federal Constitutions State Constitutions City Charters etc….
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Under what circumstances might certiorari be granted by the state Supreme Court?
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Certiorari may be granted when: • The Court of Civil Appeals has decided a question of substance not previously determined by the Oklahoma Supreme Court; • Or the decision of the Court of Civil Appeals does not conform with a decision by the Oklahoma Supreme Court or the United States Supreme Court; • Or the Court of Civil Appeals divisions have issued conflicting opinions; or when the Court of Civil Appeals’ decision is a substantial departure from the usual course of judicial proceedings • A majority of the nine Supreme Court justices must agree to do so
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What are the three factors to determine if the government intended to create a designated public form?
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• Explicit expressions of intent • Actual policy and history of practice in using the property • Natural compatibility of the property with the expressive activity
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What are three typical functions of a constitution?
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They provide the plan for the establishment and organization of the government They outline the duties, responsibilities and powers of the various elements of government They usually guarantee certain basic rights to the people
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When is the Oklahoma Supreme Court the final arbiter on a case? When can’t the U.S. Supreme Court overturn an Oklahoma Supreme Court ruling?
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If the question presented is one purely of state law, O.S.C is the final arbiter An opinion of the O.S.C, based on the Oklahoma Constitution, affording greater rights than those preserved by the U.S Constitution may not be overturned by the U.S Supreme Court
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Which is preferable: Holding a speaker liable for libelous speech or prior restraint stopping potentially libelous speech?
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Holding speakers and publishers responsible for what they have spoken or written is preferable to imposing prior restraint upon even potentially libelous speech, the court indicated in that case
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Who was John Peter Zenger? Why was he arrested? His arrest was an attempt to do what? Why was he acquitted?
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Immigrant printer Involved in a vicious political battle between leading colonial politicians in New York Published the New York Weekly Journal • Jailed in Nov. 1734 after his newspaper published several stinging attacks on Cosby (colonial governor) o His arrest was to silence him from his criticism towards the governor • Convinced the jury that no man should be imprisoned or fined for publishing criticism of the government that was both truthful and fair o Acquitted
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What is equity law? How is it related to common law?
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Another kind of judge-made law The cases are heard by the same judges in the same courtrooms A system of jurisprudence, distinct from common law, in which courts are empowered to decide cases on the basis of equity or fairness and are not bound by the rigid precedents that often exist in common law.
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Is government required to create and maintain indefinitely a designated public forum?
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Not required
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Know where to find reported court opinions, especially U.S. Supreme Court opinions.
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The cases of a single court are collected in a single case reporter The cases are collected chronologically and fill many volumes A single system of citation, which reflects the name of the reporter in which the case can be found, the volume of that reporter, and the page on which the case begins
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Lack predictive power. The theories fail to predict how the Supreme Court will rule in free speech and free press cases. Provide few clear guidelines and even fewer rules for judicial decision-making. Solutions lead to outcomes that contradict the commonly understood and accepted meaning of the First Amendment.
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Criticisms of Positive Theories:
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How many votes are required for a writ of certiorari to be granted?
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If four justices think the petition has merit, the writ will be granted • Rule of Four
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In what way is a constitution a yardstick against which all other government actions must be measured? What is the supreme law of the land?
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Described as a yardstick against which all the other actions of government must be measured to determine whether the actions are permissible The U.S. Constitution is the supreme law of the land
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How did the British attempt to control colonial American printers and publishers?
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Seditious Libel Prior Restraint Bond Special Patents and Monopolies
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John Zenger case was an example of?
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Example of Jury Nullification
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How are federal judges selected?
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Appointed for life terms under Article III of the U.S. Constitution by the president, with the advice and consent of the Senate
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What kinds of public property are not a public forum?
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o Prisons o Military bases o Postal service mailboxes o Utility poles o Airport terminals o Political candidate debates on public television
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As-applied attack
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By attacking problems with its actual application to a particular factual scenario • Constitutionality based on how it actually applies to a particular person or particular person or particular group of people under specific factual circumstances that allegedly deprive the person of a First Amendment right
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Explain the concept of community censorship
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o 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 o It amounts to self-censorship, not government censorship
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What are the differences between civil and criminal proceedings?
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A statement of the allegations against the defendant and the remedy that is sought, typically money damages; A defendant who loses a civil case is found liable Guilty applies only: Beyond a reasonable doubt Can lead to imprisonment
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Is the existence of a hostile audience sufficient to deny or punish First Amendment rights? Must the government come to the defense of the heckler or the speaker?
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o Courts have made it clear that the existence of a hostile audience, standing alone, has never been sufficient to sustain a denial of or punishment for the exercise of First Amendment rights o The government must come to the defense of the speaker, not the heckler
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The process undertaken by courts to interpret or construe the meaning of statutes
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Statutory Construction
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A situation that occurs when the audience’s negative, adverse and sometimes violent reaction to the message conveyed by a peaceful speaker is allowed to control and silence the speaker. The duty, instead, should be on the government to protect the speaker rather than to allow a “veto” of the speech by the audience
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Heckler’s Veto
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How many U.S. Courts of Appeal? Which circuit is Oklahoma in?
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13 circuits of the U.S. Court of Appeals 179 authorized judgeships (17 were vacant) Oklahoma (10th Circuit)
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The government has greater power to do what? Regulations on speech in nonpublic forums will be upheld as long as what?
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• To regulate and restrict speech • As long as they are reasonable and viewpoint neutral
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What are the typical remedies in equity law?
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Temporary restraining order (TRO) Preliminary injunction Permanent injunction
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What is the source of statutory law?
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Created by elected legislative bodies at the local, state and federal levels
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Usually a dispute between two private parties
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Civil Suit
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How much First Amendment protection is given to speech occurring in a traditional public forum?
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Highest level of First Amendment protection is given to expression occurring in traditional public forum
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Courts can overturn administrative agency decisions only under what circumstances? Why do courts have limited power to review administrative law?
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If the original act that established the commission or agency is unconstitutional If the commission or agency exceeds its authority If the commission or agency violates its own rules If there is no evidentiary basis whatsoever to support the ruling • These agencies were created to bring expert knowledge to bear on complex problems, and the entire purpose for their creation would be defeated if judges with no special expertise in a given area could reverse an agency ruling merely because they had a different solution to a problem
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What are federal district courts?
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The trial courts of the federal court system, hearing both civil and criminal matters
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Owners of private property are free to do what?
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To regulate who uses their property for expressive activity
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Printed Press
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the greatest amount of freedom • Non-Regulation Model • No physical limit that can be published • 1789 o Has been free • Receiver must generally take an active role in purchasing • Must have o Economics wherewithal o Literacy Skills
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The Supreme Court typically grants what percentage or number of petitions for a writ of certiorari each year?
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Recently only 75 to 85 cases a year are accepted Court agrees to hear only about 1 percent of the petitions it receives
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How are courts involved in the development of constitutional law?
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Asked to determine the meaning of provisions in the documents and to decide whether other laws or government actions violate constitutional provisions
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Cable
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more freedom than broadcast but somewhat less than the print Unlimited capacity Historically regulated Receiver must take a for more active role by subscribing Provide safeguards
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Like a civil but the procedures are more involved with the state to a greater extent
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Criminal Action
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Attributes of a Positive Theory:
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Believes that First Amendment was designed to further a specific affirmative value. Focuses on the nature and content of the communication or the identity of the speaker.
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What is the meaning of a denial of certiorari by the U.S. Supreme Court?
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Possible Reasons for Denial: • See no flaw in lower court decision. • No substantial legal issue. • Court’s allowed time filled. • Waiting for set of facts to address an issue. • Don’t want side issues
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How does statutory law differ from the common law?
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Statutory Law: • Deal with problems affecting society or large groups of people • Can anticipate problems • Criminal Laws are statutory laws • Law is collected in codes and law books Common Law: • Deals with smaller, individual problems (rare when affects large groups of people) • Cannot anticipate problems • Crime laws no longer exist (since 1812) • Law is collected as reports
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What is a traditional public forum? Examples?
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Public places that have by long tradition been devoted to assembly and speeches Street corners Public parks Steps in front of a student union building Plaza in front of city hall
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How do attorney general opinions in Oklahoma differ from those in many other states?
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The attorney general opinions in Oklahoma are binding unless overturned by a court or the legislature
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How much First Amendment protection exists for speech on private property?
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There are no First Amendment guarantees of freedom of expression on private property
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Broadcast
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the least amount of freedom Substantial government regulation An actual physical limit of channels that exist Up to the government to select the frequencies • And to make sure it serves the interests of all viewers and listeners Spectrum scarcity Easily accessible
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How does equity law differ from common law?
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Differences in procedures and remedies are all that is left to distinguish these two categories of the law The rules and procedures are far more flexible than those under common law Precedents are relied but judges are free to do what they think is right and fair in a specific case
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The four criteria that time, place and manner regulations must meet to be constitutional.
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1. Rules must be content neutral 2. Rules must not constitute a complete ban on communication 3. Rules must be justified by a substantial state interest 4. Rules must be narrowly tailored
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What three elements must be present before the U.S. Supreme Court will review a state court decision?
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A substantial federal question must be present. The federal question must be crucial to the decision. The losing party must have exhausted all state remedies.
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Justice Hughes said prior restraint by the government might be permissible under what three circumstances?
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The government can constitutionally stop publication of obscenity Material that incites people to acts of violence Certain kinds of materials during wartime
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What rationale did the U.S. Supreme Court use to determine that states could not prohibit the distribution of anonymous political literature?
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Seven members on the high court said that the Law was an unconstitutional limitation on political expression Under our constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent Anonymity is a shield from tyranny of the majority Anonymity might in fact shield fraudulent conduct, but our society “accords greater weight to the value of free speech than to the dangers of its misuse
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Miami Herald v. Tornillo (1974): What rule did the court establish?
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The Supreme Court said it cannot The First Amendment does not give the government the right to force a newspaper to publish the views or ideas of a citizen • The choice of material to go into a newspaper and the decisions made s to content and treatment of public issues and public officials are decisions that must be made by the editors
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The manner in which the court applies the rules is usually dependent upon what?
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Depends on the nature of the specific location where the law in question applies
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What level of interest must the government have to justify the restriction?
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Substantial Interest
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Legislative intent is ascertained from what? To ascertain intent, courts look to what? Why?
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Minutes of committee hearings in which the law was discussed, legislature staff reports and reports of debate on the floor can all be used to determine legislative intent • The whole act based on its general purpose and objective When lawyers deal with statues, they frequently search the case reporters to find out how the courts interpreted a law in which they are interested • Courts and Attorney General look to the language of the statute
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What does not constituting a complete ban on speech mean?
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There must be ample alternative means of accomplishing this communication
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What three main approaches do state courts have to interpreting the scope of individual rights guaranteed under state constitutional provisions that parallel those in the U.S. Constitution?
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Primary Approach • Looks first to its own state constitution Interstitial Methods • Looks at the U.S. Constitution first Lock-Step Method • The U.S. Supreme Court interprets the issue
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Government compelling editors to publish what reason tells them not to publish is unconstitutional. “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”
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Miami Herald v. Tornillo (1974); First Reason
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Facial Attacks
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By attacking problems with its wording, terms and language • Constitutionality based on its text (it’s words and language), but does not consider the facts or circumstances of a particular case
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Miami Herald v. Tornillo (1974): Which First Amendment theory did the court reject?
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They rejected the access theory
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Must the restriction pass all four criteria to be declared constitutional?
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Yes
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The statute intrudes into the function of an editor: “It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”
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Miami Herald v. Tornillo (1974): Second Reason
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When judges’ rule on the meaning of a statute, their determination should be based upon what and not upon what?
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When judges rule on the meaning of a statute, they are supposed to determine what the legislature meant when it passed the law (legislative intent), not what they think the law should mean
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What rationale did the U.S. Supreme Court use to determine that cities could not prohibit residents from posting signs on their own property?
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o Supreme Court ruled that posting of signs on residential property is “a venerable means of communication that is both unique and important o A special respect for individual liberty in the home has long been part of our culture and law
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Citizens could hold any belief they chose and could espouse that belief, but personal safety depended on the people in a community agreeing with a speaker or writer; If they didn’t, the speaker then kept quiet – an early example of self-censorship; Or moved to another enclave where the people shared those ideas
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Chilling Effect
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May state constitutions give greater rights to their residents than provided under the U.S. Constitution? May they reduce the rights provided under the U.S. Constitution?
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Yes, they can give more and greater rights to their citizens than provided No, they cannot reduce or roll back rights given by the federal Constitution
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The restriction must be narrowly tailored to do what and not do what?
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It furthers the state interest that justifies it, but does not restrain more expression than its actually required to further this interest
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A statute or regulation is unconstitutional if it is so vague that a person of reasonable and ordinary intelligence would not know, from looking at its terms, what speech is allowed and what speech is prohibited
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Void for Vagueness Doctrine
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Telling publishers what to publish is the same as telling them what not to publish. The “statute exacts a penalty” on the content of the newspaper. The economic reality is that newspapers can’t “proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands.” (doesn’t have enough money to publish)
answer

Miami Herald v. Tornillo (1974): Third Reason
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How many amendments to the U.S. Constitution? The first 10 amendments are known as the what?
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27 Amendments Bill of Rights
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What is the source of administrative law?
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The application and interpretation of federal regulation, the regulation of federal and state regulatory bodies
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The statute’s requirement would lead to a “chilling effect” because the safe course for editors would be to avoid controversy, which would blunt or reduce political coverage
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Miami Herald v. Tornillo (1974): Fourth Reason
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Explain the concept of viewpoint neutrality and its importance.
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o That the freedom of speech must be ensured for all people, not simply those on one side of the political spectrum o It’s embodied in the freedom of speech; government should not be restricting your POV
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Healy v. James (1972): State colleges and universities are not enclaves immune from what?
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Its sweep from the sweep of the First Amendment
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A statute or regulation will be declared unconstitutional if it sweeps up and bans a substantial amount of protected speech in the process of targeting unprotected speech; in other words, the doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the same process
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Overbreadth Doctrine
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What are the three rationales for broadcast regulation?
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1. History of regulation 2. Spectrum is a scarce, publicly owned resource 3. Pervasiveness
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An agency, created and funded by Congress, whose members are appointed by the president and whose function is to administer specific legislation, such as law regulating broadcasting and advertising
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Administrative Agency
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Reno v. ACLU, 521 U.S. 844 (1997): Is the Internet broadcasting? Do the three rationales that justify broadcast regulations also justify regulating the Internet?
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Our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium
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When determining the constitutionality of statutes, the Oklahoma Supreme Court is guided by what “well established principles”? What if the statute infringes on the freedoms protected by Article II, Section 22, of the Oklahoma Constitution?
answer

A heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality and every presumption is to be indulged in favor of the constitutionality of a statute The usual presumption favoring the constitutional validity of legislation generally is not operative against statutory restriction of the preeminent freedoms secured by the first amendment
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Why did the Articles of Confederation created in 1781 not explicitly guarantee freedom of expression?
answer

o The individuals who drafted the constitution did not believe such guarantees were necessary o Guarantees of freedom of expression were already a part of the constitutions of most of the 13 states o Articles of Confederation did not work very well
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What is the wording of the First Amendment? What are the five freedoms protected by the First Amendment?
answer

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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Which case did Justice Powell use as precedent to find strong First Amendment rights for public university students?
answer

Its own precedents, the Court said, “leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ “
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Where was the First Amendment on the original list of amendments presented to the states for ratification?
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In fact, in the Bill of Rights presented to the states for ratification, the amendment was listed third
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Do First Amendment rights apply with less force on a college campus than in the community at large?
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Yes
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The person engaging in the conduct must intend to convey a particular or specific message with his or her conduct
answer

Actor
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Powell said the college classroom and its surroundings are what?
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The college classroom and its surroundings are a distinct “marketplace of idea,” Powell wrote
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The truth will be discovered or, at the very least, conceptions of the truth will be tested and challenged The truth-seeking rationale for free expression. Not an equal marketplace for everyone -John Milton
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Marketplace of Ideas
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Universities could also impose what and require what?
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Schools also could impose reasonable time, place and manner restrictions upon student speech and could require that groups seeking official recognition agree in advance to conform to “reasonable campus law.”
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There must be a great likelihood, under the surrounding circumstances in which the conduct takes place, that some people who witness it will reasonably understand the particular message that was intended by the actor
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Audience
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Papish v. Board of Curators of the University of Missouri (1973): In this case, the court reaffirmed what?
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that public universities could not punish students for indecent or offensive speech that did not disrupt campus order or interfere with the rights of others
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Who determines today’s meaning of the First Amendment?
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The First Amendment means today what the Supreme Court of the United States says it means
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The majority said Healy made what clear?
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Healy made “clear that the mere dissemination of ideas – no matter how offensive to good taste – on a state university campus may not be shut off in the name alone of ‘conventions of decency.'”
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Freedom of expression is a means to an end. Expression that does not relate to the self-governing process is not protected absolutely by the first amendment. Protect people from the government; expression that relates to the self-governing process must be protected absolutely by the First Amendment (more society based)
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Meiklejohnian Theory
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What are the five well-established rules, enunciated in Bazaar, concerning censorship of the college press?
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(1) that the fact that a state university provided funding, faculty or departmental advice, or campus facilities did not authorize university officials to censor the content of a student publication; (2) that individual four-letter words were insufficient reason to censor; (3) that the state university could not be considered the same as a private publisher with absolute arbitrary power to control content; (4) that the university, as an arm of the state, could not make private publisher decisions about content; (5) that the university could not be held liable for the content of student publications
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What is the two-part test to determine if conduct is symbolic speech?
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Actor Audience
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For what reason had Papish been expelled?
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Also clear to the majority was that Papish had been unconstitutionally “expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.”
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What are the differences in which speech and how much speech the First Amendment protects when the ultimate goal is to protect the rights of the speaker as compared to when the goal is to protect society’s interests? Under which of those ultimate goals is more censorship tolerated? Why?
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Protect the speaker’s rights, the only interference with the first amendment will come when there is serious harm done to other individuals or the community Protect society’s social interest, the first amendment will be censored much more in order to protect and preserve the wider rights of the community
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What have courts specifically declared that public college administrators may not do to the college press?
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o suspend an editor for publishing controversial material o suppress objectionable material from publication o withdraw or reduce financial support because of the newspaper’s offensive o regulate content to assure the compliance of printed material with “responsible freedom of the press.” o punish student editors for poor grammar and spelling in a publication o censor student copy prior to publication to avoid libelous material o censor to sidestep criticism of the school or to avoid a public controversy
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Why did the Constitution not explicitly guarantee freedom of expression?
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o The constitution was drafted in such a way as not to infringe on state bills of rights o The state declarations of rights are not revoked by this Constitution; and being in force are sufficient o No bill of rights
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Why is the public forum status of the publication important?
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Because if it was a private forum, officials would have all the right in the world to censor because it was sanctioned by the government for a specific purpose, such as education
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Would the fact that a newspaper might be extracurricular determine its public forum status?
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The fact a newspaper might be extracurricular (not part of course or for academic credit) was not determinative of its public forum status
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Individual realization of character and potential as a human being means the right to form your own beliefs/opinions and the right to express those belief/opinions
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Self-Fulfillment / Self-Realization
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Which speech may be prohibited under the fighting words doctrine?
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Those which by their very utterance inflict injury or tend to incite an immediate breach of the peace
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In 1972, the U.S. Supreme Court said rules prohibiting fighting words must be limited to words that have what?
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Laws prohibiting fighting words be limited to words “that have a direct tendency to cause acts of violence by the person to whom, individual, the remark is addressed
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Explain whether the U.S. Supreme Court seemed to leave open the door to lessening the Internet’s First Amendment protection.
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However, though the Court drew an analogy between the Internet, particularly the WWW, and publishing, it stopped short of explicitly saying that cyberspace should be afforded the same full First Amendment protection as the print medium. Justice Stevens clearly did not champion, as Judge Dalzell had done so passionately and eloquently, the idea that the Internet is deserving of at least as much First Amendment protection as print publications.
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Whether any given word amounts to a “fighting word” depends upon what?
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On the context of how it is used and to whom it is addressed
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For which of those positivist theories is protecting the individual the ultimate goal? For which is it protecting society? Explain. Which would tolerate the most censorship to reach that goal? Which would seem to tolerate the least censorship?
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Self-Realization • Speech is important to an individual regardless of its impact on politics or its benefit to society at large Marketplace of Ideas • The ultimate good desired is better reached by free trade in ideas o The truth is the only ground upon which their wishes safely can be carried out
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Who has the burden to prove what?
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Forces the government to bear the burden of proof in any legal action challenging the censorship
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What does content neutral mean?
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content on its face and the manner it is applied; A rule that is content neutral is applied in the same way to all communications, regardless of what is said/printed
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According to the U.S. Dept. of Education’s Office of Civil Rights, what is the difference between unprotected harassment and protected expression that offends?
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o Harassment must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive o Under OCR’s standard, the conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program Require the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances, including the alleged victim’s age
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Allowing dissidents to expound their views enables them to let off steam. Free speech provides a balance between stability and change in a society
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Safety Valve
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What is the Preferred Position Balancing Theory?
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o Some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental to a free society and consequently are entitled to more judicial protection than other constitutional values are o Freedom of Expression is essential to permit the operation of the political process and to permit citizens to protest when government infringes on their constitutionally protected prerogatives
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Know the hierarchy of protected speech: politically and socially valuable expression, commercial speech, obscenity, false advertising and fighting words.
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1. politically and socially valuable expression, 2. commercial speech, 3. obscenity, 4. false advertising 5. fighting words
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Why is that presumption important?
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The persons whose expression was limited would be forced to convince a court that they had a constitutional right to speak or publish
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What is the essence of a democracy?
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Participation by citizens in the process of government Selecting leaders through the electoral process
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Checking Value
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Media act as a counterweight to the government
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What presumption does preferred position balancing theory include?
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That government action that limits free speech and free press to protect other interests is usually unconstitutional
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Understand the doctrine of incorporation, why it is important in mass media law, and the significance of Gitlow v. New York (1925).
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Gitlow states that freedom of speech is protected by the 14th amendment known as incorporation of doctrine
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What does “net neutrality” mean? What important First Amendment issues are raised by “net neutrality”?
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o Suggesting that internet service providers should treat all traffic and content similarity and that they should not charge money for or block access to faster services o The right to receive speech and the right to access information
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Which right is central to U.S. political philosophy?
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The right to criticize and oppose the government
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In Texas v. Johnson (1989), the U.S. Supreme Court said the bedrock principle underlying the First Amendment is what?
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It is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable
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What is the doctrine of counterspeech
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The preferred remedy for speech that we disagree with is not censorship, violence or murder, but to add more speech to the marketplace of ideas in order to counter it or to rebut it
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A law adopted by Congress in 1917 that outlawed criticism of the U.S. government and its participation in World War I in Europe Aimed at dissent and opposition of the war To convey a false report that interfere with war effort, refusal of duty in the armed forces, willingly obstruct the recruiting or enlisting service
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Espionage Act
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What test was produced in this case (Brandenburg)?
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The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions; This test, which represents the current version of Justice Holmes’ old clear and present danger standard
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Understand the components of the test and how to apply it in hypothetical situations to determine which speech is protected and which is not.
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Directed • Did the speaker actually intend for his or her words to incite lawless action? Imminent • Indicates that the time between the speech in question and the lawless action must be very close or proximate Lawless Action • Requiring that there be a criminal statue forbidding or punishing the underlying action that is allegedly advocated Likely • Represents a probability requirement
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An amendment to the Espionage Act adopted in the midst of World War I that severely limited criticism of the government and criticism of U.S. participation in the European war Say or write bad about the cause Aimed at people who were opposed of the war
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Sedition Act of 1918
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•What speech did the Smith Act prohibit? The statute was aimed against whom?
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o A federal law adopted in 1940 that makes it illegal to advocate the violent overthrow of the government o Crime to advocate, to conspire, to organize a group, or be a member of a group that advocated the violent overthrow of the government o The Communist Party
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What does the strict scrutiny standard require?
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The standard of judicial review for content-based statutes, requiring the government to prove that it has a compelling interest (an interest of the highest order) in regulating the speech at issue and that the means of serving that interest are narrowly tailored such that no more speech is restricted than is necessary to serve the allegedly compelling interest
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What’s protected?
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Advocating an abstract idea, even the use of force or illegal conduct in the abstract
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What’s not protected?
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Speech directed to inciting or producing imminent lawless action and likely to incite or produce such action
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What is the greatest threat to the First Amendment?
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Ignorance of their rights Fear Apathy Difficulty of living up to the First Amendment Temptation to seek simple solutions to complex problems