Exam QUESTION 1Stare Decisis can be defined as a Latin.docx

Exam
QUESTION 1
Stare Decisis can be defined as a Latin term meaning:
A.
Freedom to be free: the theory that law is created by the
free expression of humankind and should thereby be
respected
B.
The thing speaks for itself: the notion that previous
statements of fact are adopted as true
C.
Inherently dangerous: the theory that some acts are so

dangerous that negligence is presumed
D.
To stand by a decision: the theory that previous case law
is to be respected by other judges in interpreting law
Exam
2
10 points
QUESTION 2
The elements of negligence are:
A.
Breach, injury, damages

B.
Breach, damages, causation
C.
Duty, breach, causation
D.
Duty, damages, injury
10 points
QUESTION 3
Free speech is:

Exam
3
A.
The right to express yourself without government
intervention, in any way
you want
B.
Expression without restraint
C.
The right to perform physical acts or methods of
communication that are
harmful to others
D.
The right to be protected from undesirable feedback
after you
communicate a thought
10 points

QUESTION 4
The seminal case Brandenburg v. Ohio set forth the
precedent that the
government cannot punish inflammatory speech unless the
following
threshold element is met:
A.
Clear and present danger
B.
Hate speech
C.
Riot speech
D.
Exam

4
Imminent lawlessness
10 points
QUESTION 5
In the seminal case of Jacobellis v. Ohio, United States
Supreme Court Justice Potter Stewart famously
described obscenity as:
A.
Something created to incite or inflame societies core
values
B.
Something that he knew when he saw it
C.

Something impossible in these modern times
D.
Something giving rise to the prurient interest
Exam
5
10 points
QUESTION 6
Laws created to protect journalists and their sources are
called:
A.
Proposition 50

B.
Free Hat laws
C.
Shield laws
D.
Eagle laws
10 points
QUESTION 7
Based on our discussions in class, BURGLARY can
be defined as:

Exam
6
A.
Unlawful taking of an item from another by force or fear
B.
Breaking and entering with the intent to commit robbery
or petty theft
C.
Breaking and entering with the with the intent of taking
the residence or building as your own
D.

Unlawful entry into the dwelling of another with the
intent to commit a larceny or felony therein
10 points
QUESTION 8
Based on our discussions in class, ROBBERY can be
best defined as:
A.
Breaking and entering with the intent to commit robbery
or petty theft
B.
Exam
7
Unlawful entry into the dwelling of another with the
intent to commit a larceny or felony therein

C.
Breaking and entering with the with the intent of taking
the residence or building as your own
D.
Unlawful taking of an item from another by force or fear
10 points
QUESTION 9
The right to privacy of people within the State of
California is expressly granted through:
A.
Proposition 50a of 1909

B.
California Constitution
C.
Exam
8
United States Constitution
D.
Proposition 50a of 1901
10 points
QUESTION 10

When a court is not allowed to hear a certain type of
matter, that is often because the court lacks:
A.
Liability
B.
Civil Procedure
C.
Vestment
D.
Subject Matter Jurisdiction

Exam
9
10 points
QUESTION 11
Personal Jurisdiction over a person by a court concerns:
A.
Whether a person has ever sued in that court before
B.
Whether the court can hear certain types of cases
C.

Whether a person is liable for their actions given the
inherently dangerous activity within which they were
engaged
D.
The ability of the court to enter a binding judgment as it
relates to the person
Exam
10
10 points
QUESTION 12
David has just filed a lawsuit on behalf of himself and
his adult son, Tony. David and Tony are both named as
Plaintiffs. Tony personally served the lawsuit to the
Defendants. Personal service is the preferable method of
service in the state where David filed the lawsuit. Was
the service successfully completed?

A.
YES
B.
It depends on whether Tony and David knew where
the defendants live.
(hint: this is an incorrect answer)
C.
NO
D.
It depends on whether Tony knew where the
defendants live.
(hint: this is an incorrect answer)
10 points
QUESTION 13
Martin, a resident of California, sues David, a resident
of Indiana. Martin files the lawsuit in California. To

Exam
11
serve David, Martin mails a copy of the lawsuit to
David. Indiana allows lawsuits to be served by mail.
Was service perfected by Martin?
A.
Yes, because he used a method allowable in the state
where the Defendant resides
B.
Yes, because David could reasonably expect to be hailed
into court in California
C.
No, because Martin used a method not allowed for

service in California, where the lawsuit was filed
D.
No, because Martin mailed the lawsuit himself.
10 points
QUESTION 14
Exam
12
Paula, a resident of Ventura County, sues David, a
resident of Los Angeles County, by filing in the Superior
Court of the State of California-County of Los Angeles.
Is venue proper in Los Angeles County:
A.
Yes, Paula can file in any court she wants

B.
No, Paula lives in Ventura County
C.
Yes, David lives in Los Angeles County
D.
No, David can only be sued in Ventura County
10 points
QUESTION 15
Paula, a resident of Ventura County, sues David, a
resident of Los Angeles County, by filing in the Superior
Court of the State of California-County of Ventura. The

Exam
13
cause of action relates to a car accident that occurred in
Los Angeles County, wherein Paula was rear-ended by
David. Is venue proper in Ventura County?
A.
It depends on whether David had ever been to
Ventura County.
B.
I'm not sure; more information is needed in order to
determine proper
venue.
C.
YES
D.

NO
10 points
QUESTION 16
Don sues Michelle in the Superior Court of the State of
California – County of Ventura for breach of contract
relating to the purchase of supplies from Michelle for
his photo printing business. Michelle wants to sue Don
for a car accident from a year ago, wherein Michelle
was injured. Must Michelle file the cross complaint in
the lawsuit now pending in order to protect her right to
Exam
14
obtain damages from Don?
A.
Yes, both parties must bring all claims against each
other at the same time, regardless of whether the claims
are related

B.
Yes, Michelle did business with Don, so she must bring
all claims now in order to promote swift resolution of all
pending cases
C.
No, the claim does not arise from the same cause of
action or events and thereby Michelle gets to choose
whether to bring her claim as a cross complaint
D.
No, Michelle has exceeded the statute of limitations and
thereby cannot recover damages
10 points
Exam

15
QUESTION 17
The most common Motion to Strike seeks to strike what:
Incorrect spelling
Errors in Personal Jurisdiction
Errors in Subject Matter Jurisdiction
Punitive Damages

10 points
QUESTION 18
Don was protesting outside of a public library for many
months regarding a proposed fee the library intended to
charge to ‘borrow’ books. The library sued Don for
protesting, claiming he was causing them to lose
business. After being served with the lawsuit, Don
Exam
16
should file:
A.
Anti-SLAPP motion
B.
SLAPP Back motion

C.
Motion for Directed Verdict
D.
Motion Notwithstanding the Verdict
10 points
QUESTION 19
______________ is written defamation:
A.
Libel
B.

Exam
17
Slander
C.
Res Ipsa Loquitur
D.
Apostasy
10 points
QUESTION 20
_____________ is spoken Defamation:
A.
Apostasy
B.

Slander
C.
Libel
D.
Res Ipsa Loquitur
10 points
QUESTION 21
Exam
18
The right to privacy is expressly granted in the Bill
of Rights of the United
States Constitution:
True
False
10 points

QUESTION 22
The are presently only eight (8) seated justices on
the United States
Supreme Court. This vacancy in the ninth seat was created
by:
A.
The retirement of Justice Emeritus John Paul
Stevens
B.
Action of Judicial Senate
C.
Executive Order
D.
The death of Antonin Scalia
10 points

QUESTION 23
As discussed in our first lecture, the Federalist Party,
led by outgoing
President John Adams, forced through the Judiciary Act of 1801
that set
forth the "midnight judges" appointment of several Federalist
friendly
judges and justices of the peace. This was done to:
Exam
19
A.
Disrupt laws regarding tariffs
B.
Scare the common people by expanding the role of
law and order in the
newly formed society.
C.

Secure a strong Federalist party legacy.
D.
Create a broader judicial branch
FOR THE MULTIPLE CHOICE
Combined Lecture Notes
Law and Public Policy Lecture Notes 30 August 2016
Briefings on Cases are the majority of the work
The paper and presentation is the main grading of the course
The midterm and the final are the purpose of judging both the
core items needed
from the class are digested and the subject matter of the test has
been understood
and he will point out what will be on the exams both the
midterm and the final
Multiple choice and short answer that will have a short answer
at the end
Cases briefed online two cases a week and every week two
students will volunteer to
stand up and talk about the case
Law is the performance of academia
Class will be in parts
Case Brief

Marbury vs. Madison
John Adams lost the election to Thomas Jefferson
• Adams second president
• He tried to put his people in all areas of government
• Judiciary act of 1801 (1789)
o He put this into effect
o With his Congress he tried to come up with the new version of
the
judiciary act of 1801—tried to create
o Justice of the peace back then a lower level judge
• Signs all these executive orders to
Thomas Jefferson establishes the Judiciary Act of 1802—the
new judiciary act of 1789
This unwinds all the appointments of Madison, which Marburry
didn’t receive—this was
signed and he never obtained it
“Midnight Judges”
These judges were looked at the midnight judges that were
established by Adams
Was it a valid appointment?
ARTICLE 3 OF THE CONSTITUTIONS
Tells judges what they can hear—cases between states and
ambassadors
Superior court is the highest trial court
Supreme court is the appellate course
Marbury brought his case to the
Issue
Rule
Application
Conclusion
IRAC is how you brief cases—I section is where you give facts
Issue does the court have the authority have the authority to rule

over this case—
article 3
Application this is what the supreme court
CASE BRIEFS
2
Conclusion what we got was judicial review—any appointments
made can be looked at
by the supreme court—the ability of the court system (their
check to the balance) this
is a valid law or no this isn’t a valid law—this is the supreme
court giving itself more
power than it does
Judicial branch having the authority to throw out laws upon the
base of constitutional
All the cases we are looking at are appeals court cases
To overrule the judicial the congress both houses need ¾ vote
Congress has a way to give Supreme Court to hear cases
directly and
On test: judicial review from
The Supreme Court justices:
1. Chief Justice John G. Roberts Jr.
2. Justice Clarence Thomas
3. Justice Anthony M. Kennedy
4. Justice Ruth Bader Ginsburg
5. Justice Stephen G. Breyer
6. Justice Samuel Anthony Alito Jr.
7. Justice Sonia Sotomayor
8. Justice Elena Kagan
Bill of Rights will be on the exam

Tort is civil (you seeking something from someone else)
Battery—criminally and civilly be sued
Civil people seeking retribution from another person
Criminal the criminal side of it
Civil: a person seeking something from another person
Criminal: retribution by a grieved society
Different Torts: things people sue for
Torts:
Negligence
• Negligence the largest thing that person sues for
o Negligence the failure to use reasonable care (failure to take
reasonable
care that resulted in damages)
o Negligence has elements:
o Someone owes a duty to someone else; someone breached that
duty;
and that breach of duty caused damages
o Duty
o Breached
o Causation
• Stare Decisis: precedent, the principle that has been
established by prior court
rulings that is upheld if the court decisions to follow
o Laws and interpretations of laws are created from prior legal
cases and
decisions and judges are obligated to respect the precedent

CASE BRIEFS
3
• Duty: doctor patient, landlord tenant, parent child
• Breached the violation of the duty
• Causation comes in two forms
o You are the actual cause (you did it)
o You are the proximate cause (you didn’t exercise reasonable
care)
• When suing someone you are looking for a deep pocket
• Strict Liability—something is so obviously dangerous that if
someone gets hurt
you are liable
Strict Liability –ON THE TEST
• Liability is presumed—the presumption is yours to defend is
strict liability
• You need to defend that what they did is within the boundaries
of the law—
shifting the decision to the plaintiff if you are defending
Negligence “per se”
• It is the law
• If you violate the law or a policy it is presumed that you are
negligent
• If you are following the law vs. obstruction of the law
Criminal Law
Common law
Assault and Battery
• Assault putting someone in the immediate apprehension of

physical harm
o Assault needs to be aware
• Battery the unlawful touching
• Assault and batter exists on both sides of the law
Robbery and Burglary
• Robbed and burglary ONT THE TEST
o Burglary is a crime against property
o Robbery his a crime against a person
o Burglary: the unlawful entry into the dwelling of another with
the intent
to commit a larceny or a felony there in
▪ Walking into a house that doesn’t just include just residences
(if
you were to leave your door open then that would be a violation
in the old common law—but the modern conception would be
that
burglary occurred without the need to manipulate anything to
get
in)
▪ Burglary would look into the if the person had the intent to
commit a felony
▪ Burglary the intent is the necessity to
o Robbery: the unlawful taking of an item from another by force
or fear
▪ Threatening a person would be robbery
▪ If you touch a person then it would be robbery
▪ Leaving burglary or theft into robbery

Homicide
• Homicide: unlawful of a human being with malice and
forethought
• If you were engaged in a felony and a person dies then it is
felony murder
CASE BRIEFS
4
• If you were engaged in a felony that resulted in death then you
were engaged
in murder
False Pretenses
• Misrepresentation with the material fact with the intent to
defraud
• Material Fact is the complicated part
• The intention to fraud with using the misrepresentation of the
facts
• Material fact: something that a reasonable person would take
into
consideration before entering a transaction
The deeper definitions and elements would be our essays or
short answers in the
exam
Bill of Rights
All the laws we look into will take into consideration and
expand
1. Speech, religion, press, and assembly
a. Right to practice religion and the establishment clause

2. Well regulated militia The Right to Bear Arms
3. No Quartering Act—cannot be forced by troops to let them
live in your home
4. Freedom from unnecessary search and seizure
5. Due Process Clause
a. Impartial judge
b. Freedom from self-incrimination
c. Double jeopardy
6. Right to speedy trial and right to counsel
7. Trial by jury in civil cases
8. No excessive bail and cruel and unusual punishment
9. These rights do not deny other rights—they are not exclusive
10.Rights that are not reserved by the federal government here
are reserved by
the states
a. Example medical marijuana
b. Everything that the federal government doesn’t have then the
states
have it
c. States sovereignty
Government center in Orange County and there are not a lot of
homeless services
available
The center is both the federal
Service providers are coming out there to provide services for
people
This has become a de facto homeless center
Argument: it all has to go and come up with a better argument
Negative: keep it all the same

Health and safety
Santa Ana Homelessness Issue
Emergency Shelter
CASE BRIEFS
5
Housing Authority—how do you guarantee that a person can
have public housing
Public Housing is where the government owns the housing NYC
has 180,000 public
housing buildings
County Housing
Wet Housing: here’s a roof and then we’ll treat you—the
NIMBYism with services and
shelter not in their housing areas
Wanting to have housing for addicts and alcoholics without
providing the help
The issue with veteran’s having housing issues—how they were
discharged
Removing the honorable discharge portion of the requirements
so that they can be
helped with housing as well
How to deal with the housing issue with homelessness and this
will be reviewed when
we are looking at the basic civil rights that should and could
exist
Lecture Notes 6 September 2016 Week 2
Midterm: 50 multiple choice, true false, and short answer open
ended questions
At the end of it he will hand us a bonus piece that we can

choose to do and after
turning in the exam can use my laptop
Brief Presentation
New York Times Co vs. Sullivan
Sullivan’s worry about future implications about the article
(ADVERTISEMENT) and
with the recent issues with civil rights movement and Martin
Luther King Jr
His case didn’t require him to show how he was harmed directly
(Alabama’s Law)—
Difference between punitive damages and general damages are
not necessary to
differentiate between in the two when entering the case and
verdict (libelous per se)
14th Amendment due process clause applies the Bill of Rights
to the states
Terminiello v. Chicago 337 U.S. 1, 4
De Jonge v. Oregon 299 U.S. 353
DEFINITION FROM SULLIVAN FOR TEST: “actual malice—a
knowing or reckless disregard
for the truth
Expanded to recklessly collected information now includes
checking your sources must
have some “journalistic integrity” to be protected behind
Sullivan
History goes back to those coming over here to have a voice and
not be suppressed by
the government
Government saying what you can and can’t say is a violation of
the 1st amendment

and the concept of “political correctness”
Not having a state run news agency—the importance of having
the press (freedom) to
be the voice of the people
CASE BRIEFS
6
SPEECH NOT PROTECTED: Defamation—a false statement
about another person that is
published to a 3rd party (libel vs. slander)
TRUTH THE ABSOLUTE DEFENSE TO DEFAMATION
Freedom of Speech
• Government can’t force you to speak or say something
• Art work expression
• People stop it not the government
In Class Activity
Colin Kaepernick’s explanation of why he sat during the
National Anthem
Defense:
First Amendment right
How many others don’t pay attention during the National
Anthem
Exercising his constitutional rights (supported by the President)
IRAC—fundamentally understand the issue and do the reading
not so much on the
format
NTY vs. US

NEAR vs. Minnesota
No prior restraint unless certain (3) cases
ON TEST—GIDEON VS WAINWRIGHT (CIVIL GIDEON)
Week 3 Lecture notes 13 September 2016
Freedom of Speech and Freedom of the Press
Speech will mean media for the sake of the press—any way that
someone
communicates in a mass operation
Freedoms protected by the Constitution and Freedoms not
protected by the
Constitution
New York Times Co v Sullivan
• Law suit on the base of libel for defamation
• Needing the malice
Limited Issue Public Official—a public issue for limited issue
Public official known off of one thing
The slander for defamation with a limited issue public official
has to be a suit based
upon what they are known for then malice needs to be proved
CASE BRIEFS
7
Example suing for fraudulent taxes to Warren Buffet and being
known for finances—
then he has to prove “actual malice” if he were to sue for
slander

Free Speech is speech without restraint
However looking at what the exceptions are in free speech
NEAR v Minnesota
• Jay M Near publishes a newspaper anti everything
• A criminal case
• “Injunctions” against him for “public nuisance”
• Publishes an article on a local mobster
• Near began his defense mounted upon the First Amendment
• Rule: you can’t restrict things like this (near’s hate Sunday
paper) just because
you don’t like what it says
• Prior Restraint is not valid—you can’t censor newspapers
• Crucial military publication, anything obscene, and anything
that would incite
actionable acts of violence
New York Times Co v United States
• The publication of the Pentagon Papers in 1971 and to enjoin
the newspapers
Whitney v California
• Constitution does not protect when a person is to incite the
over throwing of
the government
Schenck v US and Brandenburg v Ohio and What is on the
Exam
• Know what the rule was for Schenck: clear and present danger
• Know what the rule was for Brandenburg: imminent
lawlessness
• Know which one came first (California is an exception with
needing to point out

a specific action in order to be considered as “imminent lawless
action”)
(Abrams v US and Dennis v US Whitney v California Schenck v
US Gitlow v US)
CSPAN video: www.cspan.org/video/?323
The Freedom of Speech Talk
• Institute for Public Accuracy
• National Press Club
• Myron Belkind
• The support for Mr. Rysen(?) the national press club gave him
the freedom of
the speech award in 2012
• The government’s attempts to block the reporting of the
actions in Ferguson,
MO
• Norman Solomon RootsAction.org and Co-Founder & Institute
for Public
Accuracy Executive Director
• The attempts of the government to stop the press from
publishing the acts of
the government with surveillance, giving Iran faulty nuclear,
and Botnet etc.
http://www.cspan.org/video/?323
CASE BRIEFS
8

• The “freezing effect” now no longer a “chilling effect”
o Now it is stopped
• To President Obama and Halter, your effort to compel new
york times reporter
james risen to reveal his resources is an assault on the freedom
of press we
urge you in the strongest terms to halt action on risen and to
safeguard the
freedom of the speech and for journalists to uphold defending
their sources
identity
• Organizing the actions against the press and mobilizing an
attempt to educate
the public with what is going on with the attempts and current
political
pressures to stop the press
• The collision between an administration that “talks good and
does bad” and
mobilize a citizenry to understand what is at stake
• Culmination of one phase of that and the initiation of the next
• To “lance that boil of fear and intimidation” that affects the
actions of the
press and the willingness to publish
• The efforts to prevent the government from future and current
actions to
threaten the publication
• Enactment of t a meaningful “shield law” that the media is
separate from the

government and that they are needed and their independence is
necessary to
hold the government accountable for their actions
• Subpoenas for the press
• Journalist shield laws that have been presented in the
Congress
• Not saying that the press is above the law and above the
judicial branch but
that a sense of independence is necessary
• Gregg Leslie
o Reporters committee for Freedom of the Press and Legal
Defense
Director & Attorney
• The massive subpoena of the AP phone record in the search
for a CIA operator
• The Fox News Reporter’s email account breached accused of
an espionage
charge by asking a government employee about/for information
• Making greater notification for journalist before their third
party
communications were looked at; making it more difficult to the
prosecutor but
it helps keep the government more accountable
• Reporter’s privilege of not needing to disclose their sources
similar to those of
a spouse and doctor and the necessity to provide the shield laws
for the press
• Congress needs a meaningful shield and the government’s

accountability to the
people are held by watchdogs there needs to be something
enacted of their
powers to stop this pressure and there is a necessity for
reporters
• Whistle blowers are needed for the government and for the
reporters as
sources there is a need for protection of whistleblowers and the
communications between the reporter and the whistle blowers
• James Risen has refused to name a source for information
about a CIA
operation in Iran that appeared in his book “State of War”
• The Obama administration has pursued 8 cases under the
Espionage Act the
Committee to Protect Journalists
• Courtney Radsch: committee to Protect Journalists Advocacy
Director
CASE BRIEFS
9
• Leak investigations and surveillance revelations have made
government
officials fearful of reporting and acting as a whistle blower
• Journalists more broadly has a serious chilling or freezing
effect on the press
• Without the backing of a large media outlet with a large team
of lawyers then

those individual reporters are even more fearful of the reporting
of what the
government is doing
• Looking at National Security and Anti-State Charges as a
cover to suppress
journalists—subversion or terrorism is the anti-state charges
o The subversion or terrorism as the source of or charge against
journalists
as Anti-State charge
o This is a higher degree of the past charges of defamation or
libel
• It is difficult to go abroad and advocate on behalf of freedom
when these same
freedoms are abridged at home
• Government to uphold the Constitution and democratic
principles upon which
the society is built and the ensure the functioning of the
democratic process in
which the freedom of the speech is a crucial role
• Delphine Halgand: Reporters Without Borders
o Measures the freedom of information in 186 countries and the
freedom
that reporters, bloggers, and others enjoy
o US holds the 46th position on this index
o No true freedom of the press or speech if whistleblowers are
not upheld
• Crackdown on whistleblowers can be said to restrict all not
approved

information of the government by the press
• Reporters without borders are defending and assisting news
providers all
around the world
• Phil Donahue the issues with that come with corporate media
(former talk show
host) you need to have the availability of larger numbers of
people to create a
middle where the real news can be found
• 5 MNC’s are now controlling the media or the middle
mainstream media has a
lot to report and a lot to be ashamed of due to no longer be
righting back
o No longer
• New york times reporter james risen was subpoenaed to testify
at the trial of a
former CIA operation
• Risen has refused to reveal his source—taking advantage of
his first amendment
right
• This is an issue of not necessarily the threat to security but the
embarrassment
of the administration
• James Risen, New York Times journalist and author “State of
War”
o About not just him but some basic issues that affect all
journalists and
all Americans

o The Justice Department in the Obama Administration were the
ones who
turned this into a fundamental fight against press freedom in
their
appeal to the 4th circuit claiming the fundamental thing this
case is
about is that there is no such thing as a reporter’s privilege thus
turning
this case into a show down of the first amendment and the
freedom of
the press granted by the US and the Constitution
CASE BRIEFS
10
o The fundamental question of the freedom of the press and the
freedoms
that are given to the press that are now being suppressed by the
administration under the guise of national security, espionage,
and
terrorism
• Ahmed ghappour university of California hastings school of
law serves as
outside counsel for the Freedom of the Press Foundation
• How does the First Amendment and the Freedom of the Press
survive in a
Post-9/11 age? That is all the same issue now—this is the
central or core
question that is being addressed
• The subpoena to reveal his source expired during the Bush

administration and
was renewed in the Obama Administration the harassment that
Risen has
experienced during both administrations (public and private
efforts) to harass
him that started in the Bush Administration
• The statements issued by Pulitzer Prize winners—
rootsaction.org and it is a
vendetta against the press
• Company Man book by former CIA director
• The political nature by the Justice Department on this issue
• Career Washington v. Political Washington
o FBI and NSA act as career Washington and post 9/11 they
have had more
power to investigate, track, and find information
o There is a need for the large wide ground support
• Policy by the Justice Department of what they will do when
issuing
• The hesitation of the AUSA to get permission from the
attorney general and
Washington
o Rather than the AUSA that can subpoena anyone and
investigate anyone
Testable Items: laws designed to protect reporters and their
sources are called “Shield
Laws” just know what shield laws are and know the subject
matter
Exclusions to Speech:

Obscenity is NOT protected speech in 1920 that could have
been anything outside the
societal expected norm
Whether or not obscenity is protected ends in CA
Jacob Ellis v Ohio—Ellis wanted to show a semi-sexual scene in
his movie and that is
banned in Ohio by law and by showing the moving
Justice Potter Stewart “Doesn’t know what obscenity is but he
knows it when he sees
it”—an explanation by the Supreme Court to explicitly identify
what obscenity is—
TEST
Marvin Miller—had a magazine that was mailed with sexual
images and the magazine
went to a family restaurant in new port beach and he was
arrested and goes to the
Miller v. California—the Miller Test came out of this by the
Supreme Court and
obscenity needs to meet all three standards
CASE BRIEFS
11
1. Whether the average person, applying contemporary
community standards,
would find that the work taken as a whole, appeals to prurient
interests;
2. Whether the work depicts or describes, in an offensive way,
sexual conduct or
excretory functions, specifically defined by applicable state

law; and
3. Whether the work, taken as a whole, lacks serious literary,
artistic, political, or
scientific value
Stage One: cannot ever be overcome
EXCEPTION with the New York case with the child
pornography laws
Ferber rule—if the person is not underage then the person is not
in violation of child
porn laws
ON THE TEST: Miller Test and New York v Ferber
Miller Test is on the test WORD FOR WORD
Know the child pornography case example question “what was
the effect of the New
York v Ferber ruling” it found that child pornography explicitly
lacked any societal
interest and was not protected by the First Amendment
Need to know that child pornography is NOT protected and that
the First Amendment
will not help you here
Intellectual Property: knowing what this concept is which is
encompasses the three
big parts of the intellectual property
Trademark: what identifies you
Example—coca-cola creates a song for the super bowl and their
trademark is that they
are the cursive large Coca-Cola
Going to the US PTO to file for it after you have already
established it—once you have
a trademark a little r after it you had to have filed with the US

Patent and Trade
Office once you get the trademark you get this symbol ! ®
Copyright: something that you create
Examples—a song, a book, a speech, a haiku, a facebook status
When you have it you can put a little c at the end of it
File a copyright when you need to prove that you created this
and that it is your
intellectual property before you go file ©
Patent: a novel idea for an actual process
Example—a new way to do something, to make something, a
new gear in an engine, a
new type of engine, a new type of water ball
Poor man’s patent when mailing a description to yourself and
open it then it doesn’t
mean anything
Filing a patent application part of the process when you submit
the patent—hire an
engineer and they pull apart every single piece and then put it
back together in the
manner which is your idea and you need to compare it with
every other patent to
determine whether or not anything is similar to this ℗
Most patents are either rejected or abandoned
CASE BRIEFS
12
In the book there is a significant amount on privacy: Roe v
Wade
• It is included under our privacy argument because that is how
the judges
looked at the case by looking at our constitution and extending
our right

• Privacy issue the sensitivity
• Conglomerated case a build up of 18 years of cases that
resulted in Roe v Wade
• The Supreme Court found that there was an “inferred right to
privacy in the US
Constitution”
• The Supreme Court recognized the inferred right to privacy
and the California
Court confirmed it
In class: Edward Snowden
Freedom of Speech and Prior Restraint
Week 4 Lecture Notes 20 September 2016
Federal Law Government Policy Alexander S. Balkin, Esq.
1. Bio
a. Command inspector general: Naval Supply Systems
Command—Fleet
Logistics Center San Diego
i. IG (investigating government watchdog)
ii.
b. Previous Experience
i. U.S. Nuclear Regulatory Commission (Fiscal
Policy/Rulemaking/
Strategic Planning)
ii. Department of Defense (Acquisition Policy)
iii.U.S. House of Representatives (CA-46 Dana Rohrabacher)
2. Publications
a. When it comes to presidential candidates you reap what you

sow the
hill.com july 22,2016
3. Lecture Roadmap
a. Brief overview of Federal Government structure and purpose
b. Difference between law & regulation
c. How to find/research federal regulations
d. Considerations in lawmaking
e. Considerations in rulemaking
f. Practical application
g. Part II: Presidential Electoral Procedure
4. The Basics
a. What is the basic form of the American government?
i. Democracy? Yes
ii. Republic? Yes
iii.Representative Democracy
5. Form of government
CASE BRIEFS
13
a. In additional to being a representative democracy the United
States is
also constitutional democracy and the US is therefore also a
constitutional republic indeed, the united states might be
labeled a
constitutional federal representative democracy but where one
word is
used with all the over simplication that this necessary entails
democracy

and republic both work
6. Basics
a. Branches of the government and their functions
i. Legislative branch
1. Creation of laws (in theory)
ii. Judicial
1. Interpretation of the law
iii.Executive
1. Execution of laws
a. Executive level agencies—creation of the President in
order to carry out the law
7. What is law
a. Law a system of rules that a particular country or community
recognizes
as regulating the actions of its members and may enforce by the
imposition of penalties
8. Where does law come from?
a. Sources of American law
i. Constitution: Foundation document (delegates authority to
create other laws)
1. Whether or not an agency or individual has the authority to
do something
ii. Statute/Act: Laws enacted by the legislature
iii.Case Law: Organic creation of law through judicial
interpretation

(Common Law)
1. Created through judicial interpretation the natural one
that comes about
iv. Administrative law (law-ish): Regulations created by Federal
agencies/entities
1. The president uses his power to delegate laws created by
congress that his agencies will carry out
9. Where is Administrative Law in the process?
a. Constitution: Established the form of government and
delegates
authority to the branches
b. Legislature: Create (generally) high level/broad U.S.C.
c. Executive
i. Code of Federal Regulations C.F.R. created bythe federal
agencies/entities when they create administrative law
10.What are regulations
a. Administrative law
b. Rules and administrative codes issued by governmental
agencies to
enforce/execute/carry out laws although tye are not laws
regulations
CASE BRIEFS
14

have the force of law since they are adopted under authority
granted by
statutes and often include pentalites for violations
11.Regulations c
a. Come from the executive branch this is what we mean when
we discuss
federal law
Examples of Law
42 U.S.C. §
Law: atomic energy act of 1954 says…regulate domestic nuclear
reactors
Regulation: PART 170-FEES FOR FACILITIES MATERIALS,
IMPORT, AND EXPORT LICENSES,
AND OTHER REGULATORY SERVICES UNDER THE
ATOMIC ENERGY ACT OF 1954 AS
AMENDED
Law high level regulation very tailored to a situation
Considerations: Law Making
• “Law like sausages cease to inspire respect in proportion as
we know how they
are made”
• John Godfrey Saxe
• Q: Why is lawmaking so terrible to witness?
o HINT: Incentives
Rulemaking: the process through which federal agencies go
through in order to make
regulations
Administrative Procedure Act
• Requires agencies to

o Keep the public informed of their organization, procedures
and rules
o Provide for public participation in the rulemaking process
o Establish uniform standards for the conduct of formal
rulemaking and
adjudication
o Define the scope of judicial review
UNITED STATES CODE: the following provisions in the
electoral college
Electoral college is a process not a place
538 electors total of all the members of congress
Fat Leonard fraud scandal
The Power Point he presented will be put online on Blackboard
Midterm
Example for briefing the case
Sample Answer being asked by a district attorney for a filing
determination
The sample answer format should meet the same format as the
question
Burglary
The first issue is whether Doe committed the crime of burglary.
(Rule)
CASE BRIEFS
15
Burlary is unlawful entry into the dwelling of another, with the
intent to commit a

larceny or felony therein.
Intent to Commit a Larceny or Felony—this fails because there
isn’t any
Unlawful taking: in the instant matter, doe did take a case of
beer without paying for
it, amounting to an unlawful taking
By force or fear (this our conclusion and choose a position here)
Do took the case of beer after being refused the opportunity
Discuss all the points where he will be charged with not just
one (everything he wrote
is abbreviated in the online example—use his sample as a rule
guide not road map
Analysis is each point below then we are going to be doing our
analysis and that is
where we are getting our points
Issue: next is the matter of filing a battery charge
The common law (penal code)
Battery is the unlawful offensive touching or contact with
another
Using the facts in the instant matter, there is no allegation that
any contact was made
between Doe and the store clerk, as such this crime will not
attach
Looking at all this and seeing then how each would attach—Doe
can only be likely
charged with theft due to the facts supporting every point with
theft
Our test next week will most likely be CRIMES
Our final will be TORTS
This first time writing a test like this (the issue brief) will be
extra credit and the final
will be more difficult

Locate the Issue
Writing the Correct Rule
Analysis is where we get the largest share of the points—this is
where we get our
logical inference
Application of the facts and law into a real life situation
Having it broken up like this on the test will be the easiest
instead of having it all in
one bulk
BRING A SCANTRON for the multiple choice
Short answer just write on the test it wont be too long
The extra credit can be just typed or written separately as long
as it is handed to
him before we leave
All employment rights are based upon American civil rights
Miranda Rights will be on the test
Fails to talk about the act of coercion
CASE BRIEFS
16
If you have an attorney and your rights have been read to you
then your
confession will stand—unless coercion is used for example
standing over you not giving
you water or letting you use the restroom
A ruse is absolutely allowed
Miranda has the protection of you knowing your rights
Due Process—before anything is taken from you have these
certain rights

He reframes the argument for the state with finding the
Katesenbach v
With the civil rights movement
Looking at this one restaurant that
Article 1 Section 8 clause 3
The state before this created a negative commerce clause a
dormant commerce
clause
Congress saying No
All these restaurants doing this and these restaurants in a
collective bucket by looking
at them all together are probably getting their meat out of
state—interstate
commerce clause
Took their federal rules and used the commerce clause and that
was the basis for
Congress to create rules for employees
Biggest way the commerce clause is setting a tenant or case in
the law is the due
process clause
Before the government can take something from you—you have
a right to be heard
When you are working at one of these agencies by you working
there you have a
vested right in something
You having your employment (any government employers) your
due process rights
have to be followed
ON TEST: PRIVATE EMPLOYERS THE STATE’S POLICE
POWERS
States apply a version of the federal employee discrimination
and employee

rights as they apply to the state—this is the best way for them
to take the federal
level laws and apply them to the state
“At will” employers—you are hired and fired without due
process
Contract: the collective bargaining agreement it is the
employers granting the due
process right
ON THE TEST AND CAN GOOGLE
UNDER FEDERAL LAW EMPLOYERS CANNOT
DISCRIMINATE UNDER THESE TENANTS: RACE
SEX
PREGNANCY
RELIGION
NATIONAL ORIGIN
DISABILITY
AGE
MILITARY SERVICE OR AFFILIATION
CASE BRIEFS
17
BANKRUPTCY OR DEBT OR STATUS
GENETIC INFORMATION
CITIZENSHIP
Fourth Amendment equal protection clause with due process and
the fifth amendment
will be your back up to your equal protection clause
Title 7 is what created the employment portion as to how it
applied to civil rights
• Arguing the commerce clause is how they expanded it and
used as their basis

Standards in each law
• Age Discrimination and Employment Act 1978
o If you have more 20 workers at the office then you cannot
discriminate
on age with people over 40 AGE 40—LOOKING FOR THIS ON
THE TEST
• Rehabilitation Act of 1973
o Most important thing is the protection for people with
disabilities
Section 504
o In Section 504 of this act: requires reasonable
accommodations ON THE
TEST
o Section 504 applies to anybody who gets federal money
▪ Cities federal authorities housing departments universities
schools
if you get a federal grant or federal money then section 504
applies
o Reasonable accommodation: for those who are
▪ In California if you are doing 70% of upgrades to a building
(of its
value) in renovations then you have to do all the ADA updates
o Reasonable accommodation: an alteration of policy to
accommodate a
disability
o Anyone who gets federal money then has to pay attention to
Section 504

o Reasonable request
▪ Nexus is there a nexus for it—somebody has to certify that it
is
reasonable that they have something and that what they are
asking for is reasonable
• Disability
• Connected
• This is what the nexus shows
▪ Fundamentally Alter our policies or operations
o This grants the big part—if you get federal money then you
have to
comply with Section 504—they give a very narrow idea of
accommodations where as ADA gives more definition
o Anybody with help, treats, or deals with this then they can
provide the
nexus and can certify this
• American’s with Disabilities Act ADA
o Two separate distinct laws
o Requires reasonable accommodations
▪ Requires architectural changes and making everything
accessible
o This is the blanket
CASE BRIEFS
18
o Gives us: A DISABILITY IS A MENTAL OR PHYSICAL

HEALTH CONDITION
THAT SUBSTANTIALLY LIMITS ONE OR MORE LIFE
ACTIVITIES (on the test)
o Applies to everybody for all intensive purposes but it defines
what a
disability is vs Section 504 just requires federal money
• Employment litigation
o If you are going to work with the government
o Sexual harassment training, discriminate based upon race
o If you did do that or if they alleged that you did then they
have to get
from the Department of
o You need to make a claim directly to that government agency
a letter
that says you fired me because of this and I want damages need
to do
this within 6 months of injury—California a Request for
Damages within 6
months of injury
o If they departments says that they will not give you anything
then you
will sue them
o If the dollar gets one dollar in fines or penalties then the
defendant has
to pay every single dime that they incurred
o If someone has a pension then the damages are through the
roof
o

Test question: an employer says that an employee cannot have
their wheelchair in the
office then you would sue under both Section 504 and ADA
Law and Policy Midterm Study Guide
*Extra credit following the exam - know crimes vs torts
Marbury v Madison (Established the theory of judicial review)
• Landmark United States Supreme Court case
• Court formed the basis for the exercise of judicial review in
the United States under
Article III of the Constitution
o Article III - establishes the judicial branch of the federal
government
o Judicial branch comprises the Supreme Court of the United
States and lower
courts as created by Congress
• Landmark decision helped define the boundary between the
constitution and separate
executive and judicial branches of government
• Supreme Court announced for the first time the principle that
a court may declare an act
of Congress void if it is inconsistent with the Constitution
• Legal principle of judicial review came from this case
o Judicial review - ability of the court system to look at a law
and say whether its
valid or not and keeping with the constitution
• Any dispute can be taken directly to the Supreme Court which
gave new jurisdiction to
the Supreme Court

• The supreme court adopted a monitoring rule over government
actions
Case details
CASE BRIEFS
19
• Washington and John Adams lost election to Jefferson
• Adams tried to put his people places to poison the new
government
• Hijacked the Judiciary Act (how judges are appointed) 1801
• Adams tried to stack the bench as judges
• Marbury was a Justice of the Peace
• Marbury never got his appointment
• Jefferson, created his Judiciary Act of 1802, that undoes
everything that Adams did back
to 1789
• Marbury asks for his appointment because it was assigned but
never delivered, court
wouldn’t hear the case
• Petition was denied
FINAL: Justices on the current Supreme Court:
1. Ruth Bader Ginsburg
2. John Roberts Jr (Chief Justice)
3. Sonia Sotomayor
4. Clarence Thomas
5. Anthony Kennedy
6. Samuel Alito
7. Elena Kagan

8. Stephen Breyer
9. Merrick Garland (proposed by Obama)
Antonin Scalia just recently died and was the best friend of
Ruth Bader Ginsberg
Brief cases (IRAC):
Issue - What is the case about and the issue
Rule - The laws that were discussed
Application - How the law was applied, or not applied
Conclusion - The final outcome
FINAL: The Bill of Rights
1. Speech, Religion, Press, Assembly
2. Right to bear arms
3. No quartering act - can’t be forced to let troops live with you
4. Freedom from unnecessary search and seizure
5. Due process clause - right to an impartial judge, freedom
from self incrimination, no
double jeopardy
6. Right to a speedy trial and your right to counsel
7. Trial by jury in civil cases
8. No excessive bail or cruel and unusual punishment
9. These rights do not deny other rights
10. Rights that are not reserved by the federal government are
reserved to the states
Amendment I – Freedom of Speech
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.

CASE BRIEFS
20
Amendment II – Right to Bear Arms
A well regulated Militia, being necessary to the security of a
free State, the right of the people
to keep and bear Arms, shall not be infringed.
Amendment III – No Quartering
No Soldier shall, in time of peace be quartered in any house,
without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by
law.
Amendment IV – Freedom from Unnecessary Search and
Seizure
The right of the people to be secure in their persons, houses,
papers, and effects, against
unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to
be searched, and the persons or things to be seized.
Amendment V – Due Process (no double jeopardy)
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public
danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property,
without due process of law; nor shall private property be taken
for public use, without just
compensation.
Amendment VI – Right to a Speedy and Public Trial
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by
an impartial jury of the State and district wherein the crime
shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his
defense.
Amendment VII – Right to Trial by Jury
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a jury, shall
be otherwise re-examined in
any Court of the United States, than according to the rules of
the common law.
Amendment VIII – No cruel and unusual punishment
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual
punishments inflicted.
Amendment IX – Do not deny other rights
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or
disparage others retained by the people.

Amendment X – Rights reserved to the States
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
The Basics of Law
FINAL: Tort – civil crimes, handled in Civil Court; Punching
someone in the face; suing is the
civil side/the tort. Person seeking something from a person
CASE BRIEFS
21
• A tort, in common law jurisdictions, is a civil wrong that
unfairly causes someone else to
suffer loss or harm resulting in legal liability for the person
who commits the tortious act
• Although crimes may be torts, the cause of legal action is not
necessarily a crime,
as the harm may be due to negligence which does not amount to
criminal
negligence
• The victim of the harm can recover their loss as damages in a
lawsuit
• In order to prevail, the plaintiff in the lawsuit, commonly
referred to as the injured party,
must show that the actions or lack of action was the legally
recognizable cause of the
harm

• Tort law is different from criminal law in that:
o Torts may result from negligent as well as intentional or
criminal actions and
o Tort lawsuits have a lower burden of proof such as
preponderance of evidence
rather than beyond a reasonable doubt.
• Sometimes a plaintiff may prevail in a tort case even if the
person who allegedly caused
harm was acquitted in an earlier criminal trial. For example, O.
J. Simpson was acquitted
in criminal court of murder but later found liable for the tort of
wrongful death.
Civil Court is people seeking something from people. Person
seeking something from a
person.
• Biggest thing people sue for in civil court is “negligence.”
Fail to exercise reasonable
care.
Criminal court it is retribution by a grieved society. Don’t have
the option of whether or not to
press charges, it will happen.
Negligence: Someone owed a duty to someone else; someone
breached the duty and caused
damages. Parking on a hill and then the car rolled and hurt. A
reasonable person would have
put their parking brake on. But because there is no law, this is
just negligence.
Negligence has elements:
1. Duty - someone owed a duty to someone else

a. Strict liability - something is so inherently dangerous, if
something happens to
someone, you’re liable/negligent. Example: own a dynamite
factory and one of
your employees gets hurt.
b. The defendant has to prove that what they did was within
normal conforming
laws
2. Breach - someone breached that duty
3. Causation - that breach caused damages
You were the actual cause OR
You were the proximate cause (you didn’t exercise reasonable
care)
Stare decisis - is the doctrine of precedent. The definition: laws
and interpretations of laws are
created from prior legal cases and decisions and judges are
obligated to respect the precedent.
Negligence per se - its written, its the law. Says if you violate
the law or the policy its presumed
that you are negligent. Its all but proved that you were negligent
(i.e. drunk driving).
Negligence is owing someone a duty, i.e. providing them with a
safe car ride home, if the car’s
tire blew out you could be found negligent if the tires were
bald. Negligence per se is drunk
driving, because drunk driving is against a written law but you
did it anyways.
FINAL: Criminal Law

CASE BRIEFS
22
*Assault - assault is placing someone in immediate
apprehension of harmful or offensive
contact, a threat. i.e. raising your fist at someone. You have to
be aware of it in order for it to
be assault.
*Battery - physically harming someone (if you were hit from
behind this would be battery
because you weren’t aware of the harm before it occurred)
Assault and battery on the criminal side and on the civil side
Robbery vs burglary - Burglary is a crime against property,
robbery is a crime against the
person
*Burglary - the unlawful entry into the dwelling of another with
the intent to commit a larceny or
felony therein (someone breaks in and steals jewelry from an
empty house)
*Robbery - the unlawful taking of an item from another by force
or fear. Someone commands
something from you (someone steals your purse)
When the crime leaves burglary and becomes robbery – a kid
breaks in and steals a bag of
skittles, if left would have been burglary, but if he pushed the
employee, then it is robbery.

*Theft - is the unlawful taking of an item from another (stealing
items from a store)
Unlawful entry - you’re not allowed to be there. Dwelling could
be residence or storage unit or
wherever, to commit a larceny or felony. Intent matters and
what they do once inside matters.
*Homicide - unlawful killing of a human being with malice
aforethought (premeditation)
Larceny is a crime involving the unlawful taking of the personal
property of another person or
business.
Felony murder rule - if you were engaged in the commission of
a felony and another person
dies, you’re on the hook for murder too. You didn’t intend to
commit the murder but you intended
to commit the felony and it resulted in a death = 1st degree
murder
Like if you sold drugs to someone who overdosed and died?
False pretenses- misrepresentation of a material fact with the
intent to defraud
• Material Fact: something a reasonable person would take into
consideration before
entering a transaction. i.e. Selling a car without disclosing it
has transmission issues
Article III of the constitution is where judges get their power
and determines the cases they
can hear. At supreme court, between states and ambassadors.
New York Times v. US

The ruling made it possible for the New York Times and
Washington Post newspapers to publish
the then-classified Pentagon Papers without risk of government
censorship or punishment.
To exercise prior restraint, the Government must show
sufficient evidence that the publication
would cause a “grave and irreparable” danger
New York Times v. Sullivan (Public Official Defamation)
CASE BRIEFS
23
• Established actual malice standard, which has to be met before
press reports about
public officials can be considered to be defamation and libel
and allowed free reporting
of the civil rights campaigns in the southern United States
• Defamation of a public official
• One of the key decisions supporting the freedom of the press
• The actual malice standard requires that the plaintiff in a
defamation or libel case, if he
is a "public figure", prove that the publisher of the statement in
question knew that the
statement was false or acted in reckless disregard of its truth or
falsity
• Because of the extremely high burden of proof on the plaintiff,
and the difficulty of
proving the defendant's knowledge and intentions, such claims
by public figures rarely

prevail.
FINAL: Actual malice: a knowing or reckless disregard for the
truth and Actual Malice must
be proved against a public official
“Limited issue public official” - something individual i.e.
Octomom. Actual malice has to be
proven if its based on the issue they are known for. i.e. Donald
Trump and accusation of filing
fraudulent taxes. A normal person doesn’t have to prove actual
malice.
Defamation - is false statement about another person published
to a third party. Speech that is
not protected. Truth is the absolute defense of defamation. Libel
(written) and slander (spoken)
Free Speech – expression without restraint
The 14th amendment applies the bill of rights to the states
• The 14th amendment is a very important amendment that
defines what it means to be a
US citizen and protects certain rights of the people.
• There are three important “clauses” in the 14th amendment,
each of which are still
important today.
o Citizenship Clause – gives all Americans born in the US and
African Americans
the right to citizenship.
o Due Process Clause - Protects the 1st amendment rights of the
people and

prevents those rights from being taken away by any government
without “due
process.”
o Equal Protection Clause - This part of the fourteenth
amendment states that
there may be no discrimination against them by the law. The
federal government
enforces this protection on the states, ensuring that they do not.
Remember that
the Bill of Rights protects some rights for Americans. The
equal protection
clause extended this protection to the state governments. This
clause of the
14th amendment would later be used to end discrimination and
segregation in
the South.
Clear and present danger rule came first in 1919, with the case
of Schenck vs US then
Imminent lawlessness was adopted with Brandenburg vs Ohio in
1969.
Near v Minnesota – government cannot exercise restriction of
speech or restraint, except in
rare circumstances
Schenck vs US (Distributed Anti-War Flyers)
• Enforcement of the Espionage Act of 1917 during World War I
• Defendants who distributed leaflets to draft-age men, urging
resistance to induction,
could be convicted of an attempt to obstruct the draft, a
criminal offense

CASE BRIEFS
24
Clear and present danger rule circumstances/limits can be
placed on First Amendment
freedoms of speech, press, or assembly. An example of this
would be yelling fire in a crowded
theatre.
Brandenburg vs Ohio (KKK Leader)
• Brandenburg invited a television reporter to attend and cover a
KKK rally
• Portions of the rally were filmed, showing men in robes and
hoods, carrying firearms,
burning a cross and making speeches.
• Speeches made reference to possibility of re-vengeance as
well as announced plans for
a march on Washington
• Statute as applied purports to punish mere advocacy and
forbid on pain of criminal
punishment, assembly with other to advocate the described
action and the statute falls
within the condemnation of the first and fourteenth
amendments.
Imminent lawlessness is a standard used to define the limits of
free speech. Under the
imminent lawless action test, speech is not protected by the
First Amendment if the speaker
intends to incite a violation of the law that is both imminent and
likely.

An example of this would be, standing in front of a crowd of
people and saying let’s go shoot
some people.
Shield laws – legislation to protect reporters’ privilege;
involves the right for reporters to
refuse to testify as to information on their sources of
information obtained during the new
gathering and dissemination process. Reporter cannot be
subpoenaed or court ordered to
testify about information contained in a news story.
No shield laws at the federal level, most of the 50 states have
shield laws or other protections
in place for reporters.
Exclusions to Free Speech: Obscenity
Ellis vs Ohio(Obscenity)
Semi-explicit sex scene, Justice Potter Stuart, doesn’t know
what obscenity is, but knows it
when he sees it.
Miller v CA – Miller Test (Definition of Obscenity)
1. Whether the average person applying contemporary
community standards would find
that the work taken as a whole appeals to the prurient interest.
2. Whether the work depicts or describes in an offensive way
sexual conduct or excretory
functions specially defined by applicate state law
3. Whether the work, taken as a whole lacks serious literary
artistic political or scientific
value.

(This is not definable, that nothing can pass the miller test and
you can basically get away with
OR simply put:
1. Is it porn?
2. Does it actually show sex?
3. Is it otherwise useless?
https://en.wikipedia.org/wiki/First_Amendment_to_the_United_
States_Constitution
https://en.wikipedia.org/wiki/First_Amendment_to_the_United_
States_Constitution
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Anything except for child porn will fall into these questions.
Therefore, the only thing
considered obscene is considered child porn.
Justice Potter Stuart – obscenity, don’t know what it is but I
know it when I see it
NY vs Ferber (Child Porn)
Found that child porn, had no societal value and no meaning to
it and thereby not protected by
the first amendment. Anything related to a depiction of a
minor, is now possibly including
graphic creations that depict a minor.
Intellectual Property (an example speech that isn’t protected)
Trademark – what identifies you, logos. Have to get a patent

first before you can claim it as
yours. You can then put the ®
Copyright – something that you create, voice over, song, book,
speech, haiku, FB status.
Can put the C at the end, don’t need to file. If someone steals
your idea and you want to take
them to court, you have to file for copyright. ©
Patent – novel idea for an actual process, a way to do
something, a way to make something,
new type of engine. File an application for a patent (patent
pending), process – hire an
engineer to identify the item and that process to get to put the
item together.
Row vs Wade (Privacy/Abortion) – whether a person has a right
to get an abortion. Judges
inferred a right to privacy based on constitution and extending
that right and found that abortions
were legal.
The US supreme court found that there is an inferred right to
privacy from the US Constitution,
the CA Constitution article 1 section 1 gives you right to
privacy
Due process: fair treatment through the normal judicial system,
especially as a citizen's
entitlement.
For example, when you work for the government at any level,
you have a due process right;
before the government takes something from you, you have a
right to be heard.
Due process rights have to be followed, before you can be

terminated. Private employers, is
done through the state’s police powers, the states apply an
aversion of employee rights using
police powers. Police powers, have the ability to regulate based
on their residents.
State Police Power: In the United States, state police power
comes from the Tenth
Amendment to the Constitution, which gives states the rights
and powers "not delegated to
the United States." States are thus granted the power to
establish and enforce laws protecting
the welfare, safety, and health of the public.
Discrimination: Federal Law: employers cannot discriminate
based on any of the following:
Race, sex, pregnancy, religion, national origin, disability, age,
military service, bankruptcy debt
or status, genetic information, or citizenship. They all fall
under either the Fifth or Fourteenth
amendment
Age discrimination employment act: expansion of title 7 under
civil rights act, more than 20
people in the office, cannot discriminate over the age of 40
Title 7 of civil rights act: created the employment portion of the
civil rights movement, by
arguing the commerce clause
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• Commerce Clause - describes an enumerated power listed in

the United States
Constitution (Article I, Section 8, Clause 3). The clause states
that the United States
Congress shall have power "To regulate Commerce with foreign
Nations, and among the
several States, and with the Indian Tribes."
Rehabilitation act of 1973: protection of people with
disabilities, section 504 (guarantees
rights to people with disabilities), requires reasonable
accommodations. Applies to anyone
that gets federal money (cities, universities, federal grant,
county) has to grant reasonable
accommodations.
• Alteration of policy to accommodate a disability, you have to
grant it if it is reasonable,
there is a nexus (has to be certified by someone) between what
they are asking for and
their disability and if it a fundamental alteration.
• Nexus – the bridge between the diagnosis and the requirement
(i.e. A dr. says that the
patient has anxiety, and the dog keeps them calm, so they have
to have the dog with
them at all times – the dog is the Nexus)
ADA (American Disabilities Act): defines a disability is a
mental or physical health condition
that substantially limits one or more major life activities.
• ADA, expands beyond section 504. Requires reasonable
accommodations, includes
architectural accommodations, TTY/TTD, defines the disability.
A disability is a mental or physical health condition that

substantially limits one or more major
life activities.
Miranda rights: based on the fifth amendment to not self
incriminate; if u have an attorney
and your rights have been read to you, your confession will
stand unless there is coercion
• Coercion: the practice of persuading someone to do something
by using force or threats
“You have the right to remain silent. Anything you say can and
will be used against you in a
court of law. You have the right to an attorney. If you cannot
afford an attorney, one will be
provided for you. Do you understand the rights I have just read
to you? With these rights in
mind, do you wish to speak to me?”
Miranda rights came from the Miranda v. Arizona case in 1966,
• The defendant was questioned by police officers, detectives,
or a prosecuting attorney in
a room in which he was cut off from the outside world.
• The defendant was not given a full and effective warning of
his rights at the outset of the
interrogation process. The questioning elicited oral admissions
and signed statements
that were admitted at trial.
• Miranda was found guilty of kidnapping and rape and was
sentenced to 20-30 years
imprisonment on each count.
• On appeal, the Supreme Court of Arizona held that Miranda’s

constitutional rights were
violated in obtaining the confession because he was not
informed of his right to counsel
during questions and trial and therefore reversed the judgement.
• He was then retried without his confession and convicted
again on the same charges.
FINAL EXAM
Congress shall make no law establishing religion or prohibiting
the free exercise
thereof
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Philosophical and religious views are perceived to be one and
the same, regardless
of what it is rooted in doesn’t matter, can’t alieve you from
everything.
Free Exercise Clause: The Free Exercise Clause reserves the
right of American
citizens to accept any religious belief and engage in religious
rituals.
What you believe and what you do (the right to believe and the
right to act)
• The first is absolute, you cannot change what people believe,
its what you do
with it that can be changed
• The only time the court can change this is when the society

has a compelling
reason/interest to do so
• For example: Animal Sacrifice (there was a compelling
interest by the American
people; so it was illegal)
• Rule of general applicability, as long as they don’t target a
single religion it is
allowed.
Strict scrutiny is used in evaluating laws, burdening religious
freedom and looks for
compelling state interest. i.e. Anti vaccination rule
• To pass strict scrutiny, the legislature must have passed the
law to further a
"compelling governmental interest," and must have narrowly
tailored the law to
achieve that interest.
Establishment clause: congress shall make no law in the
establishment of religion.
Not national religion and do not favor one or the other. No
national religion.
SHORT ANSWER: Lemon Test: A law is constitutional and
does not violate the
constitution:
1. The statute must have a secular legislative purpose
2. Its principal or primary effect must be one that neither
advances nor inhibits
religion

3. The statute must not foster an excessive government
entanglement with
religion
If it passes the lemon test it is constitutional, it if doesn’t then
it is isn’t
constitutional
Religious Land Use and Institutionalized Persons Act (RLUIPA)
Protects individuals, houses of worship and other religious
institutions from
discrimination from zoning and landmarking laws.
Land Use Regulation:
• No government shall impose or implement a land use
regulation in a manner
that imposes a substantial burden on the religious exercise of a
person
• Including a religious assembly or institution unless the
government can
demonstrate threat imposition of the burden on that person,
assembly or
institution
a. Is in furtherance of a compelling governmental interest; and
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b. Is the least restrictive means of furthering that compelling
governmental
interest

Church gets a use permit, wanted to expand services to operate
a food kitchen,
showers, meals, for homeless shelter (but if you asked the
church they weren’t
operating a shelter). Neighbors were upset, city said exceeding
use of the permit,
took permit away. Homeless were using drugs, some were
mentally ill, etc. when the
church was closed they went to the park next door. (in a
neighborhood with a school
and homes). Kid comes down slide at the park and gets poked
by a needle. I.e.
Harbor Church in Ventura
BROWN ACT
Promote transparency and public trust through:
• Public access to meetings
• Public attendance and participation
• Receipt of public comment
Closed meetings
• Allowed for
o Real property negotiations
o Labor related items
o Personnel issues
o Litigation
• Must make announcement of closed meeting and describe
purpose on agenda
• Report out of closed meeting
Public Comment: If there was a subcommittee that accepted
public comment, then
at the full meeting of the board, there is not a subcommittee

meeting.
• Did the chair violate the brown act, answer is no as long as
there no significant
change to the item. If there is, then you have to reopen public
comment.
California public records, any item is available for review. You
can get copes if you
pay for them.
Sue the Government: If you are suing a government entity,
requirement gov’t doc
number 954.4, have to make a claim within 6 months of injury
for your damages in
writing.
Death Penalty: California Superior court must review every case
where the death
penalty has been opposed
Federal Court: Why do you want to be in federal court?
• Defendants want to be in federal court, plaintiffs want to be in
state court.
• Federal court is more proper, more controlled and the rules are
easier than
state civil court. Less regulations/rules in federal court
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Statute of limitations
• How long after something happens you have before you cannot

sue
• Evidence diminishes (witnesses, evidence, etc.).
• Based on the gravity of the crime, not the propensity to
disappear.
Before you file a law suit, statute of limitations:
• Which statue of limitations applies (the tort you are suing for
)
• When does the action accrue
• Are there any tolling provisions (pauses the statute of
limitation (minor under
18, lack of capacity, incarceration)
You can shorten/lengthen the statue of limitations, cannot
extend past 4 years past
its end date.
Jurisdiction: What can be heard? CA courts have 2
jurisdictional (subject matter
jurisdiction and personal jurisdiction).
Subject-matter jurisdiction is the authority of a court to hear
cases of a particular
type or cases relating to a specific subject matter.
Example: bankruptcy court only has the authority to hear
bankruptcy cases.
Personal jurisdiction: is the power of a court over the parties in
the case. Before a
court can exercise power over a party, the constitution requires
that the party have
certain minimum contacts with the forum in which the court
sits.
• Court can hear cases as long as the defendant had resided in

CA at the time of
the injury/accident (reside with the intent to remain)
• If the defendant is personally served while in CA, includes
flying in a plane over
CA
• If the defendant consents to CA jurisdiction (contracts cases).
• When the defendant has made an appearance and realizes that
the court can
adjudicate an answer; defendant has minimal contacts with the
forum state –
can expect to me hailed into court there.
Everything regarding jurisdiction you are looking at the
defendant, because the
plaintiff already submitted to the courts jurisdiction
Serving Someone:
• The person who is serving, has to be over 18 and not a party to
the case
• You can serve someone by any means that are allowed.
• Have to make 3 attempts, in person, then 2 others.
Venue to file your action: Venue, refers to the county where the
action may be filed;
give the defendant control of where the action may be filed.
General rule: venue is proper in the county where any of the
defendants reside at the
commencement of the action. If the defendant doesn’t reside in
CA you can file in
any county.

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Permissive counter claims: Litigate multiple claims all at once
Pleadings – complaint is the document that starts your lawsuit.
Plead Doe’s 1-10 – the purpose is to add later parties to the
case.
Can amend your complaint 1 time before it is filed ,otherwise
you have to ask the
court permission
Motion for judgment on the pleadings: there is no case here
Motion to strike: Oral: remove from the record; Written: get it
out of the public
record because there is no proof.
• Most common place used, Strike Punitive damages (damages
to punish, make
an example out of something)
Anti-slapp motion: the whole reason you are suing is to crush
my first amendment
right. Newspapers file these. Strategic lawsuit against public
participation
(SLAPP). There is a slap back motion.
Example: If I was to write a Yelp review, the business could try
to sue me (SLAPP), I
would file an Anti-SLAPP motion, the business would file a
Slapp Back.
The answer in a pleading:
• Allege why things are wrong, they didn’t do anything wrong
• For each cause of action they have to give an answer, either

admin or deny.
• Have to plead any defenses they have; if the don’t plead then
they lose their
ability to. If u don’t file demurrer, motion to strike, then they
have 30 days to
answer.
Discovery: the formal exchange of information between both
sides of the law suit.
• Production of documents – request for production of
documents
• Interrogatories – written deposition; questions and facts about
the incident (CA
can ask 35 questions).
• Deposition – out of court examination, similar to what you
would have at trial,
sworn under oath; illicit testimony and hear attorney’s
objections – see the
testimony and lock it in
o You can ask almost anything at a deposition, except for things
that are
privileged. Privileged information; patient/dr; clergy, sexual
assault
victim/counsellor;
• Written Deposition: they have 30 days to file an answer after
default
judgment.
• Subpoenas – this is the exception – this is for people that are
not parties

Default Judgment: You have 30 days to file an answer
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Default motion is when you file a complaint and you serve the
party and they don’t
file a motion in 30 days, you file for default which locks them
out of the case.
• Civil code section 473 – if in 6 months, you can file this to
show there was an
inadvertence or mistake to set it aside
Settlement Negotiations: You can never talk about in court is
discussions during
settlement negotiations. Not allowed to bring up any
information, because you bring
it all out on the table.
Exception to Confrontation Clause: Witness unavailable or
refuse to testify and the
statement needs to be non-testimonial. Right to confront
witnesses that will testify.
• Crawford case (911 tape, this is not testimony), tape was used.
• Testimonial evidence is not allowed unless you have the right
to cross examine
the witness.
• Domestic violence where there is a 911 call, the call is asking
for help, not
testimony.

Heresay: An out of court statement offered for the truth of the
matter asserted.
• Heresay is not allowed in court, unless there is an exception,
due to the
unreliability of the statement, don’t have the ability to prove it
was true.
• If you are looking at a statement to determine it was heresay:
Out of Court /
Statement / Offer for the Truth of the Matter Assertive
(OTMA).
• Exceptions where heresay is allowed:
o Admission by a party (because voracity is presumed);
o dying declaration – Guy with his last breath makes statement
(because
voracity is presumed);
o Excited Utterance – it’s what falls out of your mouth when
you hear
something;
o Statement against pecuniary interest – a statement that would
hurt you
(retelling what a third party told you).
5th amendment: You cannot be forced to testify against
yourself; your spouse cannot
be compelled to testify against you. Miranda rights. Spouse
could waive these rights.
4th amendment – protected from unreasonable search and
seizure. Employed via
warrants.

• If you want to search something or someone, you need a
warrant.
• If an officer sees a felony in front of them, they can arrest
without a warrant.
• If the police officer doesn’t see a misdemeanor, a citizen’s
arrest can help this
along.
• The search requirement of the 4th amendment, you can only
look where you are
allowed to look.
Warrant: A warrant is a judicial order to effectuate something,
arrest, seize, return.
Included in a warrant, must be supported by probable cause, has
to be issued by a
neutral and detached magistrate (a judge), has to be an oath or
affirmation (by the
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person applying for the warrant), has to plead particularity
(plead the small thing
you can, which will allow you to search the smallest of areas)
• Valid arrest warrant and have probable cause that the person is
there, the
house can be searched.
• Finite scope, can only look where the person could be hiding,

nothing smaller
than the size of a human.
Fruit of the poisonous tree, all the seizures, if I don’t have a
lawful right or take
something unlawfully, everything that comes from this is
inadmissible.
• Exceptions: Found independently, then it could still be used.
At whichever
point the contact of the seizure is unlawful, it cannot be used as
evidence
against you.
Warrant Exceptions
SILO (Search Incident to a Lawful Arrest) – been arrested at
your house and now the
police can search your house.
• Under this exception to the search warrant requirement, an
arresting officer
may search only the person arrested and the area within which
that person
might gain possession of a weapon or might destroy or hide
evidence.
• Elements: Search incident to a lawful arrest, custodial arrest
in cuffs. Has to
be lawful and has to happen at that moment:
• Scope: Can search your person, can search anything within
your wingspan or
anywhere you reasonably were when you were arrested. If you
are arrested in
your car and then search your car, so long as you are not

restrained, but you
are not free to go.
Search for an arrestee: when a police officer enters a dwelling
for someone to
arrest. Elements: need a valid warrant, must have probable
cause the the subject is
in the dwelling. If they something that is evidence to the crime
for you are there,
they can seize unlawful items from the house.
Exigent circumstances (an emergency): you must have probable
cause and it has to
be an emergency. Have to prove that if you didn’t seize or do
what you did that it
would have been destroyed. Seize the items until you get a
warrant to open it, to
preserve the evidence. Hot pursuit, you can chase someone into
a house, if the
person is suspected of convicting a felony.
Cars: If they have probable cause to search your car, they have
to have a lawful
reason to be at your car. If they pull you over and they believe
your car has evidence
to the crime, they can search your car. If they want to pull the
compartments and
door panels off, they need to have a warrant. Elements: car is
stopped on a car or
highway and is readily able to be used on the highway and the
officer believes it is
part of the crime or contains contraband they can search the car.
Can only search the car when the person is not handcuffed,
unless the search if for an
arrestee.

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Plain view Doctrine, if the cop sees it and knows it’s illegal
they can seize it.
• 3 elements
o Must observe from a lawful vantage
o Must have a right of physical access
o Nature of the object has to be apparent for search and seizure
This doesn’t work when a cop is in a house looking for a
missing person, and knows
the person who owns the house is a stereo thief, the stereo
cannot be seized because
it is not illegal, must have a warrant for that.
Inventory search, either your car is impounded or your arrested
for a crime involving
your car. Searched for contraband and to protect the entity that
arrested you, so that
when you get your car back, everything is inventoried for proof
so you cannot say
something is missing. Same as when you arrested, all items are
inventoried.
Consent searches, when you consent to a search. You don’t
need to know that you
have a right to say no to a search. There has to be actual
consent and it has to be
voluntary. Cannot coerce someone, can lean on someone but no
coercion, based on
the totality of the circumstances. You can set the scope of the
search.

Apparent Authority Doctrine: you appear to have the authority
to let them do the
search. Someone who the police believe the person has the the
authority to grant
access.
Stop and frisk doctrine: you have to have a reasonable
suspicion. Specific and
articulable facts when taken together with rational inferences
from those facts that
reasonably warrant an intrusion.
Have right to council for both 5th and 6th amendment
• The 5th amendment applies when you are about to be arrested
• The 6th applies once you have been charged. Once you
initiate that right, the
police cannot interrogate you unless your attorney is there,
however this
doesn’t not stop the investigation.
• Exceptions: they can come to your cell and try to talk to you
about a separate
case, in which you need to invoke the 5th amendment right.
They can ask you
if you want to waive that right. If they waive that right under
the 6th, they can
invoke it at any time, in which all questioning will stop.
Vicarious liability is where you are responsible for the torts of
another person.
Someone will try to show that you are responsible or have some
level of responsibility
over the person who committed the tort. Example, employee
runs over a person

during working hours, the business can be sued.
Respondeat Superior – whenever some one is on the clock and
they hurt someone,
the employer is always sued.
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• At what point is the employer still responsible for the
employee – still
responsible, even if they made a mere deviation from their
scope of work.
• Not responsible if person has abandoned duties and completed
tortious acts.
• i.e. Tortiously injuring someone while on lunch break (not a
deviation).
• Tortiously injuring someone when you abandon work to go to
a Dodgers game,
the employer is not covered.
The 3/5ths compromise – slaves were counted as 3/5 of a person
for the
representative process.
Voting Rights Act
Shelby County v Holder:
• Voting rights acts passed in 1965
• Section 5 (added to the act to freeze any discriminatory
requirements to cover

jurisdictions, to guarantee the 14th and 15th amendments)
• Section 4b (jurisdiction or states that included certain tests or
devices to make
citizens eligible for voting).
o Supreme Court determined it was unconstitutional to continue
with using
the formula that was passed under congress under section 4b.
o Didn’t rule on section 5, just concentrated on section 4b.
• Section 2: Can’t do anything discriminatory
• Section 4b: Here’s a formula to determine if you are
• Section 5: If you are subject to 4b you have to get approval
before you make
changes to your laws
15th amendment (1870) is enacted, says you cannot stop people
from voting based on
their race, servitude, religion
19th amendment – women’s right to vote in 1920
24th amendment no poll taxes, 1964
26th amendment – set the age to 18 years to vote
Voter ID Laws, very controversial – democrats don’t want it,
republicans want it. To
maintain voter integrity, Voter ID Laws is valid. Department of
justice review.
NOTE 2
Case brief on 9/6/2016: topic freedom of speech and freedom of
press.
Case brief

-judges get their power: article 3
Brief the case of mulberry vs Madison
Issue: Facts does the court have the right to rule over this case
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Rule: Article 3 sated they are there for appeal reason and not
trial
Application: No they can’t hear this trial case
Conclusion: Asked to get out of the court room.
-this changed the process of on the way the supreme court is
able to use
Marbury v Madison
The Supreme Court announced for the first time the principle
that a court may declare an act of
Congress void if it is inconsistent with the Constitution. Legal
priciple of judicial review came
from this case. Any dispute can be taken directly to the
Supreme Court, gave new jurisdiction to
the Supreme Court.
Judicial review - ability of the court system to look at a law and
say whether its valid or not.
Who sit on the 8 present supreme court now-
What are the names of the justices on the current Supreme

Court:
1. Ruth Bader Ginsburg
2. John Roberts Jr (Chief Justice)
3. Sonia Sotomayor
4. Clarence Thomas
5. Anthony Kennedy
6. Samuel Alito
7. Elena Kagan
8. Stephen Breyer
9. *Scalia died in February and was BFFs with Ginsburg
Bill of rights
Basics:
-difference between a tort and a crime
-civil side tort sued you have the right to person seeking
something from a person
-criminal system will file charges and retribution against a
wrong doing to society
-most commonly sued is negligence
-negligence has the same elements
Duty: there are duties in many ways parent/child
- strict liability: something is so dangerous that if something
happens you are
liable
Breached: you violated the duty

Causation: direct ie you did it and you didn’t use care
-negligence per say: if you violate a law or policy you are
presumed negligent.
-Stare decisis- laws and interoperation of laws are created from
?????
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Criminal law
Common understanding
-Assault vs Battery
Assault: placing someone in the immediate harmful or threat
Battery: unlawful touching of another
-Robbery vs burglary
Robbery: crime against person unlawful taking from another
with fear or intimidation.
Burglary: crime against property, unlawful entry into the
dwelling of another with
intent to commit larceny or felony. (what the person is doing
in when they break in,
it has to be a felony)
Homicide: unlawful killing of another

Felony murder: if you are engaged in a felony that leads to
death.
False pretense: Misrepresentation of material fact with the
intend to defraud. Material fact
something a reasonable person will take into consideration
before making a decision.
Bill of right:
1st: Speech religion press and assembly
2nd : right to bear arms
3rd no quartering act
4th freedom form unnecessary search and seizure
5th due process/ freedom of self-incrimination/ double jeopardy
6th right to speedy trial
7th
8th no excessive bail or cruel unuss
9th these right do not deny other rights
10th the right that are not reserved here are reserved for the
states
Final paper: write a new bill of a proposed law 10 pages and
present as if you are presenting
on the floor of congress to pass
9/6/16

Final paper: writing a law for any country other than the US.
Introduction to the law and why
we need it and give history of why it has come up. Look at
syllabus page 6
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Concurrence:
Decent:
Blackboard discussion: next week we don’t have to read the
concurrence or the decent.
Midterm: 50 questions, mostly multiple choice, a few true or
false and a few open ended
questions.
Brief of NYT v. Sullivan: what I need to know
- why is the 14th amendment so important in this case? you
have freedoms that applies to
federal government but this is a state. The 14th amendment
applies the bill of rights to the
states.
-actual malice: a knowing and reckless disregard for the truth.
-freedom of speech reference to the government
-the policy behind freedom of speech and press is the speech
behind the people

-speech not protected:
-Defamation: false statement about a person published to a
third party
-Liable:
-Slander:
-Defense against defamation is the truth, it can’t be defamation
if it’s true.
9/13/16
Recap from last week.
-freedom of speech and press are the same
-Press now mean “media”
-Freedom of speech can also be associated with actions
(flipping off a cop) or inaction
(kapernick)
Limited issue public official: knowing to the public for a
limited time.
-normal person does not have to prove malice to sue anyone, a
public official does.
Near v. Minnesota (p.301)
-Near is a biggest and is anti-everything, and ran a sat paper. He
accused everyone in the city
is ran by Jews and starts to get attention. And is arrested after

time, he claims that he has
freedom of press.
-What came out of this: you can have freedom of press as long
as it does not have any of the
following three things:
CASE BRIEFS
38
-You couldn’t publish any military info
-Anything that was obscene
-Or in sighted acts of violence
-Know what the rule was for:
-Schenck: WW1
-Brandenburg: KKK
-Which came first: Schenck
-without the first amendment all you have is information that is
given to you by the
government
Testable from video
-Shield Laws: laws designed to protect reporters privilege
-Obscenity is not protected by speech laws

- Justice potter Stewart does not know what obscenity is but he
knows what it is when he sees
it.
-The Miller test: Miller v California (google it) do what you
want but if it violates one of the
other its wrong, nothing can pass the miller test except child
porn.
-Child pornography case Ferber case (google it) not protected:
lacks
Other peach that is not protected: intellectual property
-Trademark: something that identifies you, logo, you have to
file for it before you can
use the R
-Copyright: is something that you create. Song, book, poem.
Put a little C at the end
of it.
-Patent: novel idea to do something, a new something. Patten
pending just means that
you filed for it. Most patent are dismissed or abandoned.
Privacy: Row v Wade (abortion) it was ruled under privacy. It
was a buildup of case
-The supreme court found there was that there is an inferred
right to privacy from the US
Constitution.
-The CA constitution Article 1 section 1 gives you the right to
privacy

CASE BRIEFS
39
9/20/16
The Basic
-Legislative: Creation of Law
-Judicial: Interpretation of law
-Executive: Execution of laws
What is law: a System of rules that a particular country or
community recognizes as regulating
the actions of this member and may enforce by the imposition of
-source of American law: the constitution (delegates authority
to create other laws)
-Statute/ Act: Laws enacted by the legislature
-Case law: Organic creating of law through judicial
interpretation (common Law)
-Administration Law law (lawish) regulation created by federal
agencies/ entities
“laws, like sausages, cease to inspire respect in proportion as
we know how they are made”
Career
Miranda Rights: when detained people are informed about their

right to not incriminate
themselves (5th Amendment) Miranda Rights if you have an
attorney and your rights have been
read to you your confession stands. Coercion is illegal and not
covered in Miranda Right
Gideon v. Wainwright: establishes due process.
Katsenback v. McClung: Congress gets to regulate congress the
importace of this case they
took the
Congress claus: the biggest way that its there is with Due
process.
States Police powers: the states apply these versions about
Under federal laws employers cant not discriminate based on:
Google it
They all fall under the 5th and the 14th
-title 7 created the employment portion to civil rights, by
arguing the congress clause
Age discrimination and employment act: more than 20 workers
in your office you cannot
discriminate people over 40
Rehabilitation act: protection for people with disabilities
section 504 requires reasonable
accommodations Section 504 applies to all who have a federal
funding.
-Section 504: American legislation that garntees right to people
with disabilities.

Reasonable accommodation: Alteration of policy to
accommodate a disability
CASE BRIEFS
40
American with Disabilities Act: requires reasonable
accomadtion, and makes everything
accessible not just physical but tty (everything)
A disability is a mental or physical health condition that
substantially limits one or more
major life activities.
Employment litigation: (employee of federal) before any one
sues you they have to get the
right to sue you stature of limitation is 6 months.
10/4/16
Exam:
-know the bill of rights
-make sure you do the analyzes on all the things it could and
could not be on the brief. Don’t
leave any points on table. Final will be tort, what you can sue
for.
Final:
Freedom of religion:

Alexander Hamilton:
-Never a president
-Congress 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
-how the court has defined rule of religion: none, but this is
what we have now
-your religious and philosophical
-Courts cannot question if it is really what you believe.
-Laws of general applications are generally not considered to
violate free exercise
-freedom to believe, Absolute
-Freedom to do, can be imposed by government
General application
-Strict scrutiny is used in evaluation laws burdening religious
freedom and look for compelling
state interest.
5t
-No national religion and that there is no one religion that is
favored

-Lemon test: A law is constitution
- does not violate
-
CASE BRIEFS
41
-does not foster
Equal access law: if you give to one you must give to all.
Some holidays are permisable:
No government shall impose or implement a land use regulation
in a manner that imposes a
substantial burden on the religious exercise of a person,
including religious assembly or
institution unless the government can demonstrate that
imposition of the burden on that
person assembly or institution
a. is in furtherance of a compelling government interest and
b. is the least restrictive means of furthering that compelling
government interest.
Brown Act
-promotes transparency and public trust
-public access to meeting

-public attendance and participation
-Right to respond
Go over the slides on the brown act for the test
California public records act request, no specific form or
language required and you have 10
days to reply
With in reason:
10 days you only have to respond, give an apporx time they
will receive
Privalge information is off han
No set cost, you can only charge the cost of giving it to them,
so it comes down to paper
If you are suing a government agency, you have to make a claim
within 6 months of actual
injury.
You have bring the claim in within 6 months.
10/11/2016
Brown vs Board of education
Overturned the segregation laws, separate but equal. Court
established that segregation had
negative effect on the children. 14th amendment equal
protection claus,
Courts in CA

Superior court
Chief justice: Tanya
CASE BRIEFS
42
Must review case where death penalty had been imposed
Pellet court
Pellet distric
Superior court can hear what ever they want.
Federal courts:
Federal jurisdiction
Division jurisdiction: Different states over 75K
Plaintiffs want to be in state court
Defendants want to be in federal court
Before we file a law suit you have to submit claim with in 6
months for government, they
deny it and then you can sue.
Starure of limitation:
-evidence starts to diminish, witnesses forget, docs will fade

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