1. Crime stories that can endanger defendants' rights
    • Confessions the defendant made
    • Defendant’s performance on a test
    • Defendant’s past criminal record
    • Questioning the credibility of witnesses
    • Defendant’s character, associates or personality
    • Inflaming the public mood against the defendant
    • Published before a trial and suggest the defendant is guilty
  2. impartial juror
    • free of deep impressions and beliefs that will not yield to evidence presented during trial
    • not totally ignorant of facts involved
    • cannot hold such a fixed opinion they couldn't judge impartially guilt of the defendant
  3. Trial Level Remedies for Pretrial Publicity
    • Voir dire - jurors questioned and removed if bias found
    • Change of venue - moved to county where publicity low
    • Change of veniremen - jury imported from distant community
    • Continuance - trial postponed
    • Admonition - judge order to decide verdict based only on facts presented in court
    • Sequestration - jury denied access to media and personal communication
  4. Challenges for cause
    attorney convinces court there is reason a potential jury member should not hear case
  5. Preemptory challenges
    limited number of challenges granted without need to prove cause for removal of a jury member
  6. Restrictive Orders
    • Judge order (“gag orders”) to stop those involved in a case from making public comments
    • Limit what parties can say, when they can sit, and to whom they can speak
    • Issued to plaintiff and defendant, attorneys, press, or jury
    • must be a clear and present danger to the defendant’s rights
  7. Requirements for Restrictive Order (Nebraska Press Association Test)
    • Must be intense and pervasive publicity about the case
    • No other alternative might mitigate effects of pretrial publicity
    • Restrictive order will effectively prevent prejudicial publicity form reaching jurors
  8. Result of the Nebraska Press Assn., Landmark, and Smith cases
    • Restrictive orders aimed at press has decreased during past three decades
    • More likely in high profile cases
    • Law still developing
  9. Regulation of obscenity is difficult because:
    • Miller test leaves flexibility for interpretation
    • New technologies made adult content readily available
    • Feminists say pornography objectifies women; conservatives say it harms family values
    • Questioning how many resources government should use to prosecute content involving consensual adults
    • Dealing with sexually explicit materials that don't meet the Miller test
  10. Obscenity
    • narrow class of material defined by Supreme Court in Miller test
    • not protected by the First Amendment
  11. Indecent Material
    • Sexually graphic
    • referred to as adult or sexually explicit material protected under First Amendment
    • May be barred in works available to children or radio and tv
  12. Pornography
    • term has no legal significance
    • often used by laypersons and politicians
  13. First obscenity prosecution in the U.S. (year)
  14. Memoirs of a Woman of Pleasure conviction (year)
  15. Comstock Act (year)
  16. The Hicklin Rule (pre-1957)
    work is obscene if it has a tendency to deprave and corrupt minds open to such immoral influences
  17. Roth-Memoirs Test (1957)
    • Dominant theme of material taken as a whole must appeal to the prurient interest in sex
    • material is patently offensive because it affronts contemporary community standards
    • material is utterly without redeeming social value
  18. The Miller Test
    • using contemporary local community standards, the work, as a whole, appeals to prurient interest
    • work depicts in a patently offensive way sexual conduct specifically defined by state law
    • work lacks serious literary, artistic, political or scientific value
  19. Community Standards
    • “state standards”
    • becoming more difficult to identify in era of the Internet
  20. Patent Offensiveness
    • Only hard core sexual materials meet this requirement
    • “Representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals”
  21. Variable Obscenity Statutes
    • constitutional to ban sale of material to kids that is legally distributed to adults
    • Laws restricting access to indecent material on the Internet have been largely unsuccessful
  22. Child Pornography
    • not protected by the First Amendment
    • Images of minors engaged in sexually explicit conduct don't need to be obscene to fall outside protection
  23. Child Pornography Prevention Act (1996)
    • barred sale and distribution of any images that “appear” to depict minors performing sexually explicit acts
    • In 2002 SC ruled important segments of this law violated the 1st ammend. bc CPAA “prohibits speech that records no crime and creates no victims in its production.”
  24. PROTECT Act of 2003
    • aimed at curbing promotion of child pornography
    • In 2006 federal appellate court found the act unconstitutionally overbroad and void for vagueness
  25. Scienter
    • guilty knowledge
    • whether defendant was knowledgeable about contents before sold, published, or distributed
  26. Postal Censorship
    • No government agency more diligent in policing obscenity than Postal Service
    • 1873 Comstock Act provides the basic authority for the Postal Service to regulate flow of erotic material in mail
    • postal patrons may request to block delivery of solicitations for adult material or other obscene publications
  27. Film Censorship
    • not granted First Amendment protection until 1957
    • historically, significant censorship of motion pictures by local community censorship boards
    • today local censorship of films is infrequent as adult theaters have almost disappeared
  28. Local Laws on Sexually Oriented Businesses
    • Zoning regulations
    • Expressive conduct regulations
  29. Test for Zoning Regulations
    • community cannot completely bar or reduce number of adult bookstores, movie theaters or newsstands
    • must be justified by showing it furthers a substantial state interest
    • must be narrowly drawn so not to restrict more speech than necessary
  30. Expressive content regulations
    • courts have allowed cities to adopt minimal clothing requirements in adult clubs
    • allowed to adopt rules designed to prevent sexual conduct and contact
    • must serve a substantial interest unrelated to the content of speech
    • must be narrowly tailored to serve the interest
  31. Communication Decency Act (1996)
    • Made it a crime to transmit indecent material over public computer networks
    • SC ruled act unconstitutional in 1997
  32. Child Online Protection Act (1998)
    • Prohibits commercial Web sites from transmitting to minors material harmful to them
    • Lower courts ruled law unconstitutional as it restricted adults
    • In 2002, SC overturned ruling, but suggested other aspects of law could be constitutionally flawed
    • In 2003, U.S. Court of Appeals again ruled law unconstitutional
    • In 2004, SC gave second opinion saying the law likely violates the First Amendment
    • In 2007, a federal district court issued a permanent injunction against the enforcement of COPA
  33. Children’s Internet Protection Act (2001)
    • Requires public libraries to install anti-pornography filters on all computers with Internet to receive federal funding
    • Lower courts ruled the statue un-constitutional
    • In 2003, SC overturned decision ruling libraries could constitutionally restrict children’s access to pornography
  34. “Dot XXX” Domain
    • In March 2007, ICANN rejected proposal to shield minors from sexual conduct online by creating sexually explicit Internet domain
    • The adult industry did not support proposal, because it would have created a virtual ghetto of nonobscene speech
Card Set
Comm Law Final - Chapters 11 and 13