The three b ranches of government

1. The three branches of government

2. Dual systems of governance • The “triad” of governance – legislative, executive, judicial – exists at federal & state level in the US • Federal: Congress, President (and Departments/agencies), Federal Courts (including U.S. Supreme Court) • States: State Legislatures (often called Assemblies), Governor (and Departments/agencies), and State Courts (including State Supreme Court) • Federalism – A form of political organization in which the system of power is divided between a central government (federal/national) and territorial subdivisions (states/cities) – each level’s authority to regulate can be shared or separate

3. Law made by each branch of government Constitutional Law

4. Why does all of this matter in a communications law seminar? In a class concerned with SCT decisions about 1st Amdt rights, why do we care about statutes, regulations, executive orders, the common law, etc.? • Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the gov’t for a redress of grievances. • 1st Amdt text presumes that free speech violations occur through gov’t action – not private action. • Doctrine of Incorporation - over time, SCT has read text to prohibit not just Congress but state/municipal laws AND executive/judicial actions that “abridge” 1st Amdt rights

5. Background re courts – the typical court framework

6. State and federal courts – a comparison State Federal District courts 94 covering 50 states, DC and US territories Circuit Courts 13 circuits – 11 numbered circuits, DC Circuit & the Federal Circuit US Supreme Court 9 Justices Has final say on federal statutory/regulatory law & US constitutional law • Trial courts • Multiple courts in each state • Appellate courts • Each state has an intermediate appellate court – sometimes split into circuits or district • Supreme Court • Multi-membered • Has ultimate say about all state law UNLESS it conflicts with federal law (especially US Constitution)

7. Dual system of courts - jurisdiction • Federal courts • Courts of limited jurisdiction – can only hear cases as Article III of the US Constitution allows • Cases involving federal statutes or regulations • Cases that normally would belong in state court but they involve citizens from different states and the estimated damages meet a certain threshold • State courts • Courts of general jurisdiction – can hear most cases – even those involving federal law unless federal law “preempts” state court jurisdiction • Typical state law issues: • State statutes or regulations, state common law (tort, contract, property law), criminal law, family law, probate

8. Free speech issues arise in court cases in TWO primary ways • Direct constitutional challenge to a government statute, regulation or executive order. • E.g., State/city enacts a criminal law prohibiting protests during election cycles. • A group wanting to protest would file a lawsuit in state or federal court claiming the law violated their constitutional and civil rights. Lawsuit would seek a declaration of unconstitutionality and an injunction barring enforcement of the law • Raising constitutionality of a criminal law, civil penalty, or application of common law as a defense at trial. • Assume a protestor is arrested for violating the above law. • As a criminal defendant, the protestor can raise a 1st Amdt challenge to the law at or prior to his trial. If successful, charges will be dismissed.

9. Sources of free speech disputes The many ways 1st amendment challenges arise means that free speech cases involve a wide variety of scenarios: • US v. Stevens – striking down federal crush-porn law after defendant arrested for selling dogfighting videos successfully raised 1st amdt defense • Cohen v. California – man wearing “Fuck the Draft” jacket successfully raised 1stamdt defense to breach of peace arrest under California law • Brown v. Entertainment Merchants Assn – striking down California statute criminalizing sale of violent video games to minors after video dealers brought lawsuit • NYT v. Sullivan – finding imposition of large damages award against NYT in libel lawsuit brought under Alabama law violated the 1st amendment

10. Understanding free speech law • SCT is the primary (though not the only) player in establishing the basic rules • Free speech law is entirely judge-made law – sort of a constitutional common law • How does SCT reach the decisions it reaches? • Text of the 1st Amdt gives us little to go on in terms of understanding how to implement it. • So we will look at history and values of the 1stAmdt as well – how do they aid understanding of development of 1st Amdt law? • Also keep in mind the doctrine of “stare decisis” – extent to which SCT and lower courts believe they are bound by or will follow previous decisions (“precedents”)

11. About the class - requirements • Original research paper • 1st Draft – 30 percent of final grade • 2nd Draft – 50 percent of final grade • See syllabus for due dates & specific requirements • Class Participation/Weekly Discussion Group Leader • 10 percent of final grade • I’ll give you a sample of the discussion memo referred to in the syllabus before you have to do one. Discussion Leaders won’t start until after Week 5. • Paper Presentation – Last Two Weeks of Class • 10 percent of final grade • More info on this later in the semester

12. About the class – reading assignments • There is no textbook for the class. Weekly reading assignments are contained in the syllabus – with information regarding how to access the material. • If there is no such access information. I will send you that particular reading. • All such readings, and any other class information will be posted at http://law.missouri.edu/wells/speech/index.htm. • You can also find this website by accessing my faculty profile on the Law School website and clicking on my webpage listed there in my contact information. Click the “Communications Law” button and you will be there.

13. Next week – legal research • Class BEGINS in our regular classroom – 244 WWH • But we will move to the law school – law library computer lab for a tutorial on legal research after an hour. • BRING YOUR LAPTOPS • Before then – a quick and dirty hint on LexisNexis Academic before you learn in detail next week. • It’s a legal database open to all MU students. • Go to http://www.law.missouri.edu/library/ • Click on the “Collections and Resources Tab” and select “Online Databases” • Sort by “Publisher” and select “LexisNexis” • Choose “LexisNexis Academic” and agree to the terms/conditions. Once you enter pawprint, etc. you can then search for next week’s reading by author in the “law review” database. You may have to muck around but it’s not too hard to figure out.