!!!_FINAL_Con_Law_II_Stern_Fall_2008_-_I_AM_USING

!!!_FINAL_Con_Law_II_Stern_Fall_2008_-_I_AM_USING -...

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CONSTITUTIONAL LAW II  OUTLINE Prof. Stern, Fall 2008 1
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CONSTITUTIONAL LAW II – OUTLINE – FALL 2007 (PROF. STERN) Type of matter ................................................................................................................................................. 42 2
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CHARTS Speech Cause Harm Temporal Test Intent Test Content Test Sedition Political persuasion lawbreaking imminent Yes incitement Threats Political knowledge fear / distortion “imminent” “true intent” (to cause harm) Not hyperbole; (true threat) Hostile Audience Political backlash lawbreaking imminent awareness of high probability no test; outrageousness? Fighting Words Unclear non- cognitive violence immediate knowledge limited class (insults) Content Category Subject Matter Viewpoint Political Speech (Brandenburg ) Democratic process, voting rights, representation, etc. Pro-war, anti-war, Republican, Democrat, etc. Commercial Speech (Central Hudson ) Advertising, Public service, public issue Pro-NAFTA, Anti-NAFTA, Eat Pork, Buy a Lexus Obscenity (Miller ) Fairy tales, Politics, Parodies Anti-Democratic, Pro- Democratic, Hustler, etc. Fighting Words (Chaplinsky ) Political incitement, Religious incitement, Racial incitement Anti-Gay, Anti-Black, Anti- Catholic, etc. I. Steps to Approach: A. 1. Is there a public official (or candidate)? Is subject re: his official conduct? B. 2. If not a public official, is the person a general purpose public figure? C. 3. If not general purpose, is what is being talked about create a limited purpose public figure? D. 4. If not a public figure by issue, then does it regard a matter if public concern about a private person? E. 5. If not of public concern, it is private person w/ private matters? Plaintiff—person libeled Compensatory damages Punitive damages Burden of proof Public official w/ official conduct Actual malice or knowledge Actual malice or knowledge P – that info was false and libeler had knowledge or reckless disregard General purpose public figure -not issue-specific Actual malice or knowledge Actual malice or knowledge P Limited purpose public figure -issue-specific Actual malice or knowledge Actual malice or knowledge P Private figure w/ matter of public concern Negligence Actual Malice or knowledge P Private figure w/ private concern Libel per se (strict liability) [defer to state law] Negligence D (maybe D must show statement was true) 3
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4 [ START HERE ] Does the statute or governmental action affect a “religion,” its practices, or religion in general? Supreme Being Test - Whether belief is sincere and meaningful and occupies a place parallel to that filled by the orthodox belief in God. Prohibited – Those who object b/c political, sociological or economic considerations or whose opposition stems from a personal moral code . Modern Test
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This note was uploaded on 04/05/2010 for the course LAW LAW5502 taught by Professor Stern during the Spring '10 term at Florida State College.

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!!!_FINAL_Con_Law_II_Stern_Fall_2008_-_I_AM_USING -...

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