introduction to the legal system and the first amendment august 27, 2012 cuny graduate school of...

Introduction to the Legal Introduction to the Legal System and the First System and the First

AmendmentAmendment

August 27, 2012August 27, 2012

CUNY Graduate School of CUNY Graduate School of JournalismJournalism

The U.S. Legal SystemThe U.S. Legal System

THE COURTS AND THE CONSTITUTION

Where Do You Find Law:Where Do You Find Law:

1. The Constitution

2. Federal Statutes

3. State Statutes

4. The “Common law”

4. The “Common Law” 4. The “Common Law”

a. Judge made law

b. Precedent

Federal Court SystemFederal Court System

United States Supreme Court

U.S. Courts of Appeals

U.S. District Courts

U.S. District CourtsU.S. District Courts

Geography dictates in which district Geography dictates in which district a case landsa case lands• SDNYSDNY• EDNYEDNY• D. CTD. CT

Types of cases include:Types of cases include:• Civil and criminalCivil and criminal• Jury trial and non-jury (bench trials)Jury trial and non-jury (bench trials)

Figure: Geographic circuits of the U.S. Court of AppealsFigure: Geographic circuits of the U.S. Court of Appeals

The Supremes a/k/a SCOTUSThe Supremes a/k/a SCOTUS

New York State CourtsNew York State Courts

New York Court of Appeals

Supreme Court of the State of New York, Appellate Division

Supreme Court of the State of New York

Organization of Federal Courts and a Typical State Court SystemOrganization of Federal Courts and a Typical State Court System

United States Supreme Court

U.S. Court of Appeals

U.S. District Courts

State Highest (Second Level Appellate) Court

State Appellate Court

State Trial Courts

Federal Regulatory Agencies

But which Court hears what?But which Court hears what?

Federalism

Federal CourtsFederal Courts

Federal QuestionsFederal Questions• Federal statuteFederal statute• Federal (U.S. Constitutional) rightFederal (U.S. Constitutional) right

Diversity of CitizenshipDiversity of Citizenship

PreemptionPreemption

Concurrent JurisdictionConcurrent Jurisdiction

Supreme CourtSupreme Court Original JurisdictionOriginal Jurisdiction

Appeal as of RightAppeal as of Right

Writ of CertiorariWrit of Certiorari• Circuit (or State) SplitCircuit (or State) Split• Fully Developed in Lower CourtsFully Developed in Lower Courts• Important Federal QuestionImportant Federal Question• Lower Court Got It Wrong (if constitutional Lower Court Got It Wrong (if constitutional

rights have been violated or question of new rights have been violated or question of new statutory interpretation)statutory interpretation)

• Who Is AskingWho Is Asking• Useful Vehicle for JusticeUseful Vehicle for Justice

Comparing Courts – Which Comparing Courts – Which Court Decides WhatCourt Decides What

District (trial) courtsDistrict (trial) courts• Questions of factQuestions of fact• Questions of lawQuestions of law

Courts of AppealsCourts of Appeals

Supreme CourtSupreme Court

3.3. State StatutesState Statutes

(Albany)

2.2. Federal StatutesFederal Statutes

1.1. The ConstitutionThe Constitution

James Madison

James Monroe

Alexander Hamilton

The PreambleThe Preamble

We the people of the United States, in We the people of the United States, in order to form a more perfect union, order to form a more perfect union, establish justice, insure domestic establish justice, insure domestic tranquility, provide for the common tranquility, provide for the common defense, promote the general welfare, and defense, promote the general welfare, and secure the blessings of liberty to ourselves secure the blessings of liberty to ourselves and our posterity, do ordain and establish and our posterity, do ordain and establish this Constitution for the United States of this Constitution for the United States of America.America.

The Body of the ConstitutionThe Body of the ConstitutionPart 1Part 1

Article I -- The Legislative BranchArticle I -- The Legislative Branch- Section 8 – “- Section 8 – “The Congress shall have the power The Congress shall have the power to…promote the progress of Science and useful to…promote the progress of Science and useful Arts, by securing for limited Times to Authors and Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Inventors the exclusive Right to their respective Writings and DiscoveriesWritings and Discoveries;…”;…”

Article II -- The Executive BranchArticle II -- The Executive Branch

Article III -- The JudiciaryArticle III -- The Judiciary


Article IV -- Establishes “Full Faith & Article IV -- Establishes “Full Faith & Credit” Between The States And Credit” Between The States And Guarantees State SovereigntyGuarantees State Sovereignty

Article V - The Amendment ProcessArticle V - The Amendment Process


Article VI - The Supremacy ClauseArticle VI - The Supremacy Clause

This Constitution, and the laws of the This Constitution, and the laws of the United States which shall be made in United States which shall be made in pursuance thereof; and all treaties made, pursuance thereof; and all treaties made, or which shall be made, under the or which shall be made, under the authority of the United States, shall be the authority of the United States, shall be the supreme law of the land; and the judges in supreme law of the land; and the judges in every state shall be bound thereby, every state shall be bound thereby, anything in the Constitution or laws of any anything in the Constitution or laws of any State to the contrary notwithstanding.State to the contrary notwithstanding.

The Body of the ConstitutionThe Body of the ConstitutionPart 4 (and last)Part 4 (and last)

Article VII - Established the Article VII - Established the Procedure for Ratifying the Procedure for Ratifying the ConstitutionConstitution

Bill of RightsBill of Rights

Amendment I Amendment I We’ll come back to it.We’ll come back to it.

Amendment II Amendment II A well regulated militia, being necessary to the A well regulated militia, being necessary to the security of a free state, the right of the people security of a free state, the right of the people to keep and bear arms, shall not be infringed.to keep and bear arms, shall not be infringed.

Amendment IIIAmendment IIINo soldier shall, in time of peace be quartered No soldier shall, in time of peace be quartered in any house, without the consent of the in any house, without the consent of the owner, nor in time of war, but in a manner to owner, nor in time of war, but in a manner to be prescribed by law.be prescribed by law.

Bill of RightsBill of RightsAmendment IVAmendment IV

The right of the people to be secure in their The right of the people to be secure in their persons, houses, papers, and effects, against persons, houses, papers, and effects, against unreasonable searches and seizures, shall not unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but be violated, and no warrants shall issue, but upon probable cause, supported by oath or upon probable cause, supported by oath or affirmation, and particularly describing the affirmation, and particularly describing the place to be searched, and the persons or place to be searched, and the persons or things to be seized.things to be seized.

Bill of RightsBill of RightsAmendment VAmendment V

No person shall be held to answer for a capital, or No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor actual service in time of war or public danger; nor shall any person be subject for the same offense to shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness compelled in any criminal case to be a witness against himself, against himself, nor be deprived of life, liberty, or nor be deprived of life, liberty, or property, without due process of law;property, without due process of law; nor shall private nor shall private property be taken for public use, without just property be taken for public use, without just compensation.compensation.

Bill of RightsBill of RightsAmendment VIAmendment VI

In all criminal prosecutions, the accused shall enjoy the right In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.favor, and to have the assistance of counsel for his defense.

Amendment VIIAmendment VIIIn suits at common law, where the value in controversy shall In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according reexamined in any court of the United States, than according to the rules of the common law.to the rules of the common law.

Bill of RightsBill of Rights

Amendment VIIIAmendment VIIIExcessive bail shall not be required, nor excessive fines Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.imposed, nor cruel and unusual punishments inflicted.

Amendment IXAmendment IXThe enumeration in the Constitution, of certain rights, The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others shall not be construed to deny or disparage others retained by the people.retained by the people.

Amendment XAmendment XThe powers not delegated to the United States by the The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.reserved to the states respectively, or to the people.

Amendment XIVAmendment XIV

Section 1. All persons born or naturalized in Section 1. All persons born or naturalized in the United States, and subject to the the United States, and subject to the jurisdiction thereof, are citizens of the jurisdiction thereof, are citizens of the United States and of the state wherein United States and of the state wherein they reside. No state shall make or enforce they reside. No state shall make or enforce any law which shall abridge the privileges any law which shall abridge the privileges or immunities of citizens of the United or immunities of citizens of the United States; States; nor shall any state deprive any nor shall any state deprive any person of life, liberty, or property, without person of life, liberty, or property, without due process of law;due process of law; nor deny to any nor deny to any person within its jurisdiction the equal person within its jurisdiction the equal protection of the laws.protection of the laws.

Amendment IAmendment I

Congress shall make no law respecting an Congress shall make no law respecting an establishment of religion, or prohibiting establishment of religion, or prohibiting the free exercise thereof; or abridging the the free exercise thereof; or abridging the freedom of speech, or of the press; or the freedom of speech, or of the press; or the right of the people peaceably to assemble, right of the people peaceably to assemble, and to petition the Government for a and to petition the Government for a redress of grievances.redress of grievances.

The First Amendment’s Five The First Amendment’s Five FreedomsFreedoms

1.1. Establishment of ReligionEstablishment of Religion

Congress shall make no law respecting an Congress shall make no law respecting an establishment of religionestablishment of religion, or prohibiting the free , or prohibiting the free exercise thereof; or abridging the freedom of exercise thereof; or abridging the freedom of speech, or of the press; or the right of the speech, or of the press; or the right of the people peaceably to assemble, and to petition people peaceably to assemble, and to petition the Government for a redress of grievances.the Government for a redress of grievances.


2.2. Free Exercise of ReligionFree Exercise of Religion

Congress shall make no law Congress shall make no law respecting an respecting an establishment of religion, or establishment of religion, or prohibiting the free prohibiting the free exercise thereofexercise thereof; or abridging the freedom of ; or abridging the freedom of speech, or of the press; or the right of the speech, or of the press; or the right of the people peaceably to assemble, and to petition people peaceably to assemble, and to petition the Government for a redress of grievances.the Government for a redress of grievances.


3.3. Right to AssembleRight to Assemble

Congress shall make no law Congress shall make no law respecting an respecting an establishment of religion, or establishment of religion, or prohibitingprohibiting the free the free exercise thereof; or abridging the freedom of exercise thereof; or abridging the freedom of speech, or of the press; orspeech, or of the press; or the right of the the right of the people peaceably to assemblepeople peaceably to assemble, and to petition , and to petition the Government for a redress of grievances.the Government for a redress of grievances.


4.4. Right to Petition The GovernmentRight to Petition The Government

Congress shall make no law Congress shall make no law respecting an respecting an establishment of religion, or establishment of religion, or prohibitingprohibiting the free the free exercise thereof; or abridging the freedom of exercise thereof; or abridging the freedom of speech, or of the press; or speech, or of the press; or the right of the the right of the peoplepeople peaceably to assemble, and peaceably to assemble, and to petition to petition the Government for a redress of grievances.the Government for a redress of grievances.


5.5. FREEDOM OF SPEECH AND OF THE FREEDOM OF SPEECH AND OF THE PRESSPRESS

Congress shall make no lawCongress shall make no law respecting an respecting an establishment of religion, or prohibiting the free establishment of religion, or prohibiting the free exercise thereof; or exercise thereof; or abridging the freedom of abridging the freedom of speech, or of the pressspeech, or of the press; or the right of the ; or the right of the people peaceably to assemble, and to petition people peaceably to assemble, and to petition the Government for a redress of grievances.the Government for a redress of grievances.

Making Law in the Making Law in the Modern WorldModern World

(Lawsuits)(Lawsuits)

Some basic legal concepts Some basic legal concepts

1.1. Sovereign ImmunitySovereign Immunity2.2. Stare DecisisStare Decisis3.3. Equity v. LawEquity v. Law4.4. TortsTorts5.5. DamagesDamages6.6. Media Law or Media Law or

Publishing LawPublishing Law7.7. Internet LawInternet Law

DamagesDamages

General DamagesGeneral Damages Special DamagesSpecial Damages

• Actual DamagesActual Damages• Compensatory damagesCompensatory damages

Presumed DamagesPresumed Damages Statutory DamagesStatutory Damages Treble DamagesTreble Damages Punitive DamagesPunitive Damages

Anatomy of a lawsuit:Anatomy of a lawsuit:

Plaintiff (a/k/a someone who is royally Plaintiff (a/k/a someone who is royally pissed off)pissed off)

Lawyer (or not)?Lawyer (or not)?

ComplaintComplaint• Filing feeFiling fee• FactsFacts• Legal theoryLegal theory


Defendant (has no choice):Defendant (has no choice):

Motion to DismissMotion to Dismiss

- or -- or -

AnswerAnswer


Motion to Dismiss Granted:Motion to Dismiss Granted:• Appeal ?Appeal ?

Motion to Dismiss DeniedMotion to Dismiss Denied• DiscoveryDiscovery

The powerThe power The nightmareThe nightmare

• Appeal?Appeal? Depends on where you areDepends on where you are


After discovery:After discovery:

Summary JudgmentSummary Judgment

- OR – - OR –

TrialTrial

- THEN – - THEN –

AppealAppeal

Complaint

DefendantMoves to Dismiss

Defendant Answers

Defendant Victory -- case over, or on to appellate court

Discovery

5 years later.... Summary Judgment

Motion granted -- case over, or on to appellate court

TRIAL

Appeal(s)

Internet LawInternet Law

Internet Law includes…Internet Law includes…

Content regulation/controlContent regulation/control Prior RestraintsPrior Restraints LibelLibel Rights of Privacy/PublicityRights of Privacy/Publicity CopyrightCopyright

• Fair UseFair Use TrademarksTrademarks Just about everything elseJust about everything else

Regulating (Censoring) Regulating (Censoring) Online ContentOnline Content

Regulating Print PublicationsRegulating Print Publications

Strict scrutiny – a compelling Strict scrutiny – a compelling government interest, narrowly government interest, narrowly tailored regulation, and no less tailored regulation, and no less restrictive alternatives. (And restrictive alternatives. (And reasonably likely to achieve goal.)reasonably likely to achieve goal.)

Examples:Examples:• Near v. MinnesotaNear v. Minnesota• Miami Herald v. TornilloMiami Herald v. Tornillo

Regulating Other MediaRegulating Other Media

““[D]ifferences in the [D]ifferences in the characteristics of new media characteristics of new media justify differences in the justify differences in the First First Amendment Amendment standards standards applied to them.”applied to them.”

- - Red Lion Broadcasting Co. v. FCCRed Lion Broadcasting Co. v. FCC (1969) (1969)

Regulating BroadcastRegulating Broadcast

Justifications for Regulation of Broadcast (i.e., the Justifications for Regulation of Broadcast (i.e., the compelling government interests):compelling government interests):

• Scarcity (Scarcity (Red Lion Broadcasting v. FCC)Red Lion Broadcasting v. FCC)

• ““Uniquely pervasive presence in the lives of all Uniquely pervasive presence in the lives of all Americans.” Offensive material comes into the home, Americans.” Offensive material comes into the home, “where the individual’s right to be left alone plainly “where the individual’s right to be left alone plainly outweighs the outweighs the First Amendment First Amendment rights of an intruder.” rights of an intruder.” ((FCC v. Pacifica)FCC v. Pacifica)

• Accessible to children (Accessible to children (FCC v. Pacifica)FCC v. Pacifica)

• Indecent (but not obscene) speech “lie[s] at the periphery Indecent (but not obscene) speech “lie[s] at the periphery of of First AmendmentFirst Amendment concern.” ( concern.” (FCC v. Pacifica)FCC v. Pacifica)

IndecencyIndecencyFCC v. PacificaFCC v. Pacifica::

““The constitutional protection accorded to a communication The constitutional protection accorded to a communication containing such patently offensive sexual and excretory language containing such patently offensive sexual and excretory language need not be the same in every context…” need not be the same in every context…”

““First, the broadcast media have established a uniquely pervasive First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the where the individual's right to be left alone plainly outweighs the First AmendmentFirst Amendment rights of an intruder. rights of an intruder. Rowan v. Post Office Dept., Rowan v. Post Office Dept., 397 U.S. 728397 U.S. 728. Because the broadcast audience is constantly tuning . Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content…” or viewer from unexpected program content…”

““Second, broadcasting is uniquely accessible to children, even Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the Other forms of offensive expression may be withheld from the young without restricting the expression at its source.” young without restricting the expression at its source.”

Regulating BroadcastRegulating Broadcast Equal Time RuleEqual Time Rule

• Bona fide newscast exceptionBona fide newscast exception• Ex: “Law and Order”/Fred ThompsonEx: “Law and Order”/Fred Thompson• Contrast: Contrast: Miami Herald v. TornilloMiami Herald v. Tornillo

Political AdvertisingPolitical Advertising• ““Reasonable” accessReasonable” access• Lowest unit chargeLowest unit charge

Fairness DoctrineFairness Doctrine Children’s ProgrammingChildren’s Programming ViolenceViolence IndecencyIndecency

Regulating Cable TelevisionRegulating Cable Television

Justifications for regulation:Justifications for regulation:• scarcity? less so than broadcastscarcity? less so than broadcast• pervasive? somewhat less so than broadcastpervasive? somewhat less so than broadcast• New justification: monopolyNew justification: monopoly

Must carry rules (content neutral)Must carry rules (content neutral) Intermediate scrutiny:Intermediate scrutiny:

• an important or substantial governmental an important or substantial governmental interest; the governmental interest is unrelated interest; the governmental interest is unrelated to the suppression of free expression; and the to the suppression of free expression; and the restriction on speech is no greater than is restriction on speech is no greater than is essential to the furtherance of that interest.essential to the furtherance of that interest.

Regulating the InternetRegulating the Internet

Where does the Internet fall under U.S. Where does the Internet fall under U.S. law?law?• scarcity?scarcity?• pervasive?pervasive?• accessible to children?accessible to children?• indecent (or obscene)?indecent (or obscene)?• monopoly?monopoly?

Does it matter?Does it matter?• U.S. doesn’t control the InternetU.S. doesn’t control the Internet• Yahoo in France; online gambling sitesYahoo in France; online gambling sites

Open AccessOpen Access

Is the Internet different? Is the Internet different? Should it be different?Should it be different?

General Rule…General Rule…

Applicable legal principles are Applicable legal principles are generally no different on the Internetgenerally no different on the Internet• Common law evolved through printCommon law evolved through print

It is much easier to violate someone It is much easier to violate someone else’s rights onlineelse’s rights online

The law is evolvingThe law is evolving

Libel/ Rights of Privacy and Libel/ Rights of Privacy and PublicityPublicity

Who should you be able to sue?Who should you be able to sue? Where should you be able to sue?Where should you be able to sue? Are damages different when the libel Are damages different when the libel

or invasion of privacy is online?or invasion of privacy is online? Is there any class of people/entity Is there any class of people/entity

deserving of special protection?deserving of special protection?

CopyrightCopyright

What rights should owners of content have to What rights should owners of content have to control use of their content online?control use of their content online?

Should the placement of content on the internet Should the placement of content on the internet change the fair use calculus?change the fair use calculus?

Should linking be a copyright infringement?Should linking be a copyright infringement? Should framing be a copyright infringement?Should framing be a copyright infringement? Who should have the responsibility for policing Who should have the responsibility for policing

infringement?infringement? Who should you be able to sue for infringement?Who should you be able to sue for infringement?

TrademarksTrademarks

Should you be able to use another’s Should you be able to use another’s trademark in your domain name?trademark in your domain name?

Should you be able to use a Should you be able to use a competitor’s trademark to trigger competitor’s trademark to trigger your advertisements?your advertisements?

To what extent should you be able to To what extent should you be able to incorporate a trademark into your incorporate a trademark into your own content? Should it be different own content? Should it be different online?online?

Other Vexing QuestionsOther Vexing Questions Is there or should there be a right to speak Is there or should there be a right to speak

anonymously online?anonymously online?

Should users be notified when they are viewing an Should users be notified when they are viewing an advertisement or commercial message?advertisement or commercial message?

Should one country be able to regulate websites Should one country be able to regulate websites hosted in another but accessible in the first?hosted in another but accessible in the first?

Should the onus be on publishers to filter Should the onus be on publishers to filter geographically or subject themselves to the laws of geographically or subject themselves to the laws of any country in which their site can be accessed?any country in which their site can be accessed?

““Real Life” Examples – Do any of Real Life” Examples – Do any of these change your views?these change your views?

mygazines.commygazines.com• site encourages people to copy and upload popular site encourages people to copy and upload popular

magazines that are on current newsstandsmagazines that are on current newsstands• domain name is registered in Anguilladomain name is registered in Anguilla

McAlester WatercoolerMcAlester Watercooler• District attorney filed a police complaint after reading District attorney filed a police complaint after reading

what people wrote about him on a message board.what people wrote about him on a message board.• Comments included that he (falsely) is a drug dealer and Comments included that he (falsely) is a drug dealer and

killed a family in a car accident while high on drugskilled a family in a car accident while high on drugs• Local police showed up at administrator’s door with a Local police showed up at administrator’s door with a

subpoena seeking identifying information about 35 subpoena seeking identifying information about 35 people who posted on the site.people who posted on the site.

““Real Life” Examples – Do any of Real Life” Examples – Do any of these change your views?these change your views?

Wargo v. Lavandeira (a/k/a Perez Hilton)Wargo v. Lavandeira (a/k/a Perez Hilton)• E-mail of the dayE-mail of the day• In violation of site’s posted privacy policy, In violation of site’s posted privacy policy,

posted the complete e-mail, including her name, posted the complete e-mail, including her name, work e-mail address, and company name.work e-mail address, and company name.

Jane Doe v. FriendFinder Network, Inc.Jane Doe v. FriendFinder Network, Inc.- ““Adult FriendFinder.com” identifies itself as “the Adult FriendFinder.com” identifies itself as “the

World’s Largest SEX and SWINGER Personal World’s Largest SEX and SWINGER Personal Community.”Community.”

- Biographical information reasonably identified Biographical information reasonably identified plaintiff.plaintiff.

introduction to the legal system and the first amendment august 27, 2012 cuny graduate school of...

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