The Rule of Law

Law in a Changing Communication

Environ ment

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Suppa,se. , ,
. . . it now costs a lot to get elected, and people with money can distort elections. ln response, the federal government adopts campaign finance laws that
limit contributons to and spending by political candidates. The laws try to
establish a balance between the right of individuals and groups to support candidates and the need to protect the integrity of elections from corruption. Big
money challenges the campaign finance laws in court. ln 1990 and 2003,2 the u.5.
Supreme Court upholds both state and federal restrictions on campaign funding
by corporations and provides eloquent support for the need to regulate election spending. Then, in 2007, the court finds a federal3 ban on certain political
advertisements unconstitutional. Writing in dissent, Justice David Souter argues
that the Court's decision rejected more than a century of well-established law
supporting limits on campaign spending and political advocacy' He writes, "The
court (and, I think, the country) loses when important precedent is overruled
without good reason."a
ln the lead-up to the 2008 presidential election, a federal district court relied
heavily on Supreme Court precedent to uphold campaign finance law and prohibit
a nonprofit organization called Citizens United from running advertisements and
airing a film about then-Sen. Hillary Clinton.s When appealed to the Supreme Court,
one question posed by Citizens lJnited v. Federal Election Commission was whether
precedent bound the Court's ruling. ln this chapter and the case excerpts that follow, we explore how the rule of law remains stable and how it changes.

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The Rule

According to Aristotle
Aristotle wrote a foundational work on
human ethics. ln his Nicomachean Ethics, Aristotle
observed that "justice exists only between men whose
mutual relations are governed by law, and law exists
for men between whom there is injustice." ln other
words, humans are inherently flawed and prone to
injustice, prejudice and caprice. However, people
also have a drive to improve the human condition.
As a result, humans can and will freely adopt legal
rules and ethical principles to govern their behavior,

ln 350

of Law

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of the law. But precedent is not absolutely binding; it is not always followed; and sometimes prec-

orders and rules that proliferate at the federal, state

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the heart of the common law (discussed following)

and encourages consistent, predictable application

[aw's] DNA."7
Laws are not inflexible. Even the U.S. Constitution-the foundational contract between the
U.S. government and the citizens-can be changed
through amendment. Other laws-the regulations,

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should adhere to the example and reasoning of earlier

decisions on the same point. Reliance on precedent is

edents seem to conflict. As long-time Supreme Court

reporter Linda Greenhouse wrote, "Continuity and
change, the entwined spirals of a double helix, are the

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discourage injustice and enhance fairness.

commercial district far from any homes. rell-crafted

laws also must be sufficiently stable to adequately
inform people of the legal limitations they impose.
People will not long support a system that punishes
them for infractions they did not know existed' The
rule of law thus requires the entire body of law to be
internally consistent, logical and relatively stable. To
ensure slow evolution rather than rapid revolution
of legal rules, judges interpret and apply laws based
upon the precedents established by other court rulings. Precedent, or stare decisis, is the legal principle
that courts should stand by what has been decided.
The principle holds that subsequent court decisions

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The Court System

SU

ARY

Tnouex rHE RULE oF LAW, citizens establish a system for dealing with the innate
human tendency toward injustice. The rule of law is designed to promote justice
and to provide a relatively clear, neutral and stable mechanism for resolving conflicts. Legal rules bind both government and citizens by defining the boundaries
of acceptable behavior, establishing the power and range of punishment, and dictating procedures for creating, applying, interpreting and changing the law. \ellcrafted laws are clear and well tailored to address identified harms or advance
particular government or societal interests. Built-in procedures discourage rapid
revolutionary change in the law while permitting legal flexibility in response to
evolving needs and concerns. t

The Court System

A basic understanding of the structure of the court system in the United States
is fundamental to an appreciation of the functioning of the law. Trial courts, or
federal district courts, do fact-finding, apply the law and adjudicate disputes.
Courts of appeal, including federal circuit courts and supreme courts in each
system, review the application of the law by the lower courts. The courts create equity and common law, and apply and interpret constitutions, statutes and
orders. Through their judgments, courts can apply the law, reshape the law and
even throw out a statute as unconstitutional.

Jurisdiction
An independent courts system operates in each of the states, the District of
Columbia and the federal government. The military and the U.S. territories, such
as Puerto Rico, also have separate court systems.
Each of these systems of courts operates under the authority of the relevant
constitution. For example, the U.S. Constitution requires the establishment of
the Supreme Court of the United States and authorizes Congress to establish
other courts it deems necessary to the proper functioning of the federal judiciary.
Jurisdiction refers to a court's authofity to hear a case. Every court has its own
jurisdiction-that is, its own geographic or topical area of responsibility and
aurhority. In libel, for example, the traditional standard has been that any court
in any locale where the statement in question could be seen or heard would have

jurisdiction The geographic or

topical area of responsibility and
authority of a court.

jurisdiction.e

Article III, Section 1, of the U.S. Constitution spells out the areas of authority of the federal courts. \ithin their geographic regions, federal courts exercise authority over cases that relate to interstate or international controversies

The Court System

or that interpret and apply federal laws, treaties or the

U.S. Constitution. Thus, federal courts hear cases involv-

ing copyright laws. The federal courts also decide cases

in which the federal government is a party, such as when
the news media ask the courts to require the Immigration
and Naturalization Service to hold hearings open to the
public when considering the deportation of aliens from the
United States. Federal courts, therefore, would have jurisdiction over whether a U.S. citizen captured in a war zone
has the right to face his accusers in court. Cases involving
controversies between states, between citizens of different

A Test

for Court Jurisdiction of lnternet

Disputes
jurisdiction, the answer to all three of
the following questions should be yes.
To establish

the defendant purposefully conduct

activities in the jurisdiction of the court?

1. Did

2. Did the plaintiff's claim arise out of the

defendant's activities in this locale?

states or between a state and a citizen of another state also

3. ls lt constitutionally reasonable for the court

are heard in federal courts. Thus, a libel suit brought by
to exercise jurisdiction?
a resident of Oregon against a newspaper in \lashington
would be heard in federal court.
New technologies present new challenges to the determination of jurisdiction. Consider online libel. Given that statements published online are potentially
seen anywhere, any court could claim jurisdiction. More to the point, a plaintiff
could initiate the lawsuit in any court, deciding to pursue the case in the court
he or she thinks is most likely to render a favorable decision. Early in the 21st
century, the U.S. Court of Appeals for the Fifth Circuit signaled significant limits
to this practice, which is called forum shopping.lo
ln 2002, the court applied a three-pronged test to determine iurisdiction.
The court said jurisdiction in a media libel case would be determined by whether
(1) the media purposefully conducted actiuities in the locale of the court, (2) the
alleged libelous brm arose out of the media's activities in tbt locale, and (3)
the court's jurisdiction was constitutionally reasonable.ll The test leaves open
the question of what is constitutionally reasonable. It also establishes binding
precedent only in the Fourth Circuit's mid-Atlantic region. However, the court's
decision suggests a willingness to limit the ability of litigants to choose the court

forum shopping A plaintiff

choosing a court in whch to sue
because he or she believes the
court will rule in the plaintil['s
favor.

in which to pursue online disputes. A court may dismiss a lawsuit because it lacks

jurisdiction.

Trial Courts
The separate court systems in the United States are organized similarly; most
court systems have three tiers. Trial courts occupy the lowest level of courts. They
are the only courts to use juries, and they are the courts where nearly all cases
begin. Trial courts reach decisions by applying existing law to the specific facts
of the case before them. They do not establish precedents. Each state contains
ar leasr one of the nation's 94 trial-level federal courts, which are called district
courts. News reporters routinely cover legal actions taking place in trial courts,
and some judges view media coverage as a threat to the fairness of trials (see
Chapter 10). Some judges also fear media coverage will cast their court in disrepute and reduce public trust in the judicial system.
9

The Court System

Coast, Hawaii and Alaska, and the U.S. Court of Appeals for the D.C. Circuit
covers the District of Columbia. The 13th circuit, the U.S. Court of Appeals for
the Federal Circuit, handles specialized appeals. In addition, separate, specialized
federal courts handle cases dealing with the armed forces, international trade, or
veterans' claims, among other things.
Courts of appeal may affirm the decision of the lower court with a majority
opinion, which means they ratify or uphold the prior ruling and leave it intact.

They may also overrule the lower court, reversing the previous decision. Any
single judge or minority of the court may write a concurring opinion that agrees
with the result reached in the majority opinion but that relies on different reasoning or legal principles or elaborates on significant issues not treated fully by the
majority. \Vhen a judge disagrees with the opinion of the court, the judge may
wrire a dissenting opinion, explaining the basis for the divergent conclusion. A
dissenting opinion may challenge the majority's reasoning or the legal basis for
its conclusion.

Majority decisions issued by courts of appeal establish precedent for lower

courts within their jurisdiction. Their rulings also may be persuasive outside their
jurisdiction. If a plurality rather than a majority of the judges hearing a case
supports the opinion of the lower court, the decision does not establish binding

affirm To ratify, uphold or approve

a lower court ruling.

overrule To reverse the ruling of a

lower court.

concurring opinion A separate

opinion of a minority of the court
or a single justice agreeing with

the majority opinion but aPPlying

different reasoning or legal
principles.

dissenting opinion A separate

opinon of a minority of the court
or a single justice disagreeing with
the result reached by the majority
and challenging the majority's
reasoning or the legal basis of the
decsion.

U.S. Circuit Courts of Appeal

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The Court System

Conservative Leanings
Four of the five most conservative justices to serve on the Supreme ourt since 1937 and the presidency of Franklin D. Roosevelt are sitting on the bench today, according to a recent statistical study by Judge Richard Posner
and law professor William Landes.l Clarence Thomas, appointed to the Court in 1991 and the Court's second
African American justice, is ranked by the study as the most conservative justice of the past 70 years. Republican
appointees Chief Justice John Roberts (ranked 4th) and Justice Samuel Alito (ranked 5th) join Justices Antonin
Scalia (ranked 3rd) and Anthony Kennedy (ranked 1oth) to build the conservative majority of the current Court.
Democratic appointees Justices Ruth Bader Ginsburg and Stephen Breyer are the only sitting justices joining the
ranks of the 1 5 least conservative justices.
Justices Sonia Sotomayor and Elena Kagan were not members of the Court at the time of the study. However,
in her first year on the Supreme Court bench, Justice Sotamayor was perceived to be "a reliable liberal vote" but

not necessarily a "liberal activist."2 Justice Kagan is viewed by some as a "free speech devotee" who joins the
conservatives in her dedication to "the importance of civil liberties as a bulwark against ideological orthodoxy.":
(2009).
1 . William M. Landes & Richard A. Posner, Rational Judical Behavior: A Statistical Study, 1:2 J. or Lecr. Arvsrs 775
2. DavidSavage, Sotomaycr.VotesReliablywithsupremeCourt'sLiberal Wing,L.A.Tttnrs,June8,20'10, available athttp;/l
16595.story.
www.latimes.com/newlnationworld/nation/la-na-court-sotomayor-20100609,0,51
Has Sympathized with Consevative Justice, N.Y. Trnnes, May 16, 2010, at 419.

3. Adam Liptak, On First Amendment, Kagan

justices tend

to believe that government should play an active role in

ensur-

ing individual liberties. They also tend to support regulation of large businesses
and corporations and to reduce emphasis on property rights. Justice Ruth Bader
Ginsburg is sometimes viewed as the Court's only liberal-leaning moderate, but
her votng patterns place her in the political center of the Court, along with Justice Stephen Breyer. Observers anticipate Justice Elena Kagan, who "might be
best described as a center-left pragmatist," to ioin this highly influential group
of swing voters.la
Justice Anthony Kennedy often joins Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito to crete a strong conservative bloc in the Roberts Court. Conservative justices, in general' want to
reduce the role of the federal government, including the Supreme Court. They
also tend to favor a narrow, or close, reading of the Constitution that relies
more heavily on original intent than on contemporary realities or concerns.
However, following the Roberts Court's second term, one legal scholar said:
"The unifying element of the Court's conservative leanings is not a commitment to any particular conservative judicial doctrine (e.g. originalism), but a
commitment to the political and ideological positions espoused by conservative
Republicans in the 1980s. Further, the Court is not particularly 'minimalist'
or restrained in its approach . . . [and] is quite willing to push a conservative
agenda quite aggressively."ls

13

The Court System

the ca and to take an initial vote on

the

outcome. Discussion begins with the

chief justice, who focuses on a few
k.y issues. Discussion proceeds
around the table with each associate
justice speaking in turn, in order of
descending seniority on the Court.
\hen discussion is complete, voting
begins with the most junior member
of the Court and ends with the chief
justice. A majority of the justices

How an Appeal Is Processed

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must agree on a point of law for

the Court to establish binding precedent. The chief justice or the most
senior justice in the majority deter-

mines who

will draft the maiority

opinion. Draft opinions are circulated among the justices, and nego-

tiations may attempt to shift votes.

It may take months for the Court
to achieve a final decision, which is
then announced on decision day.
Two other options exist for the
Supreme Court. It may issue a per
curiam opinion, which is an unsigned
opinion by the Court as a whole.
Although a single justice may draft

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the opinion, that authorship is not

made public. Per curiam opinions
often do not include the same thorough discussion of the issues found
in signed opinions. The Supreme
Court also can resolve a case by issuing a memorandum order. A memorandum order simply announces the vote of the
Court without providing an opinion. This quick and easy method to dispense with
a case has become more common with the Court's tendency in the past decade to
issue fewer and fewer signed opinions.

per curiam opinion An unsigned

opinion by the court as a whole.

memorandum order An order

announcing the vote of the Supreme
Court without providing an opinion.

A uulrtruo oF couRr sysTEMs exists in the United States: the federal system, one
system for each state, the courts of the District of Columbia and the territories'
and the military court system. There are three levels of courts: trial courts,
15

The Court System

law-making authority. In this controversial decision, the Court established its

power of judicial review.
Judicial review allows all courts to examine government actions to determine
whether they conform to the U.S. and state constitutions. F{owever, courts other
than the U.S. Supreme Court rarely use their power of judicial review. If a state
supreme court determined that a Statute was constitutional under its state constitution, the decision could be appealed to the U.S. Supreme Court, which could
decide that the law did not meet the standards set by the U.S' Constitution' The
Supreme Court tries to use its power of review sparingly and rarely strikes down
laws as unconstitutional. As a generalrule, the Court will defer to the law-making
authority of the executive and legislative branches of government by interpreting
laws in ways that do not conflict with the Constitution.
The ideological leanings of the individual justices, and of the Court as a
whole, come into play in the choice of cases granted review and the ultimate
decisions of the Court.11 ln 201.0, for example, the Court was "bitterly divided"
in its decision in Citizens Ilnited u. Federal Elections Commission (the case mentioned at the beginning and excerpted at the end of this chapter) that declared
some campaign finance regulations unconstitutional. Many agreed that the decision's "sweeping changes in federal election law"18 "represented a sharp doctrinal
shift"le that split the Court "five-to-four along typical ideological lines." The
majority in Citizens United "cavalierly tossed aside decades of judicial opinions
upholding the constitutionality of campaign finance restrictions," \Mrote one
lawyer and columnist. Flowever, "the central principle which critics of this ruling find most offensive-that corporations possess 'personhood' and are thus
entitled to Constitutional and First Amendment rights-has also been affirmed
by decades of Supreme Court jurisprudence."20 Thus, the ideological conflict at
the core of the decision centered more on which precedents to follow than on
whether to apply precedent at all.
In determining the meaning of the Constitution and in deciding the constitutionality of statutes, the U.S. Supreme Court relies on a wide range of sources.
Originalists and textualists, such as Justice Antonin Scalia, find the meaning of
the Constitution primarily in the explicit text, the historical context in which the
document developed and the recorded history of its deliberation, ratification and
originally intended meaning. Originalists and textualists are relatively unmoved
by arguments that neither the intent nor the meaning of the Constitution is clear.
Other justices look beyond the original intent and the text itself to discern the
appropriate contemporary application of the Constitution. Their interpretation
of the Constitution relies more expressly on deep-seated personal and societal
values, well-established ethical and legal concepts and the evolving interests of
a shifting society. The Court's reasoning at times also builds on international
standards, treaties or conventions, such as the Universal Declaration of Human
Rights, or the decisions of courts outside the United States as well as state and
other federal courts. On occasion, such as when the Court discovered a right to
privacy embedded in the First Amendment, the justices refer to the views and
insights of legal scholars.2l

judicial review The power of the

courts to determine the meanng
of lhe language of the Constitution
and to assure that no laws violate
constitutional dictates.

originalists Supreme Court

justices who interpret the
Constitution according to the
perceived intent of its framers.

textualists Judges-in particular,

Supreme Court justices-who rely
exclusively on a careful reading

of legal texts to determine the

meaning of the law.

't7

Sources of

the Law

Mone rHnru 200 vnns AGo, the U.S. Supreme Court granted itself the power to
review the constitutionality of laws and government actions. The Court said the
power of judicial review was embedded in the Constitution's balance of power
and was an essential means to maintain the rule of law and check abuse of power
by the other two branches of government. Through judicial review, courts have
the power to interpret constitutions and to determine when government actions
are invalid because they fail to meet constitutional requirements. State courts
rarely exercise their power of judicial review, and the U.S. Supreme Court prefers
to use this power sparingly. Controversy surrounds the Court's exercise of judicial
review because of the political appointment of justices and the argument that the
justices' political philosophies inappropriate influence the Court's decisions.

Sgurces of the Law

The body of law in the United States has grown in size and complexity as American society has become increasingly diverse and complicated. As people's ways of
interacting and communicating have changed, so have the laws. Many laws that
govern communication today did not exist in the 1800s; neither did the technologies they regulate. Indeed, technology has been a driving force for change in the law
of journalism and mass communication. U.S. law also has developed in response to
social, political, philosophical and economic changes. Legislatures create new laws
to reflect evolving understandings of individual rights, liberties and responsibilities. Employment and advertising laws, for example, emerged and multiplied as the
nation's workforce shifted and the power of corporations grew. Even well-established legal concepts, such as defamation, have evolved to reflect new realities of the
role of communication in society and the power of mass media to harm individuals.
The laws of journalism and mass communication generally originate from
six sources. Constitutional law establishes the nture, functions and limits of government. The U.S. Constitution, the fundamental law of the United States, was
framed in 1787 and ratified in 1.789. Each of the states also has its own constitution. Statutory law is enacted by city, county, stte nd federal legislative bodies.
Like constitutions, statutes are written down; both types of law are part of what
is called black-letter law.
Judges create law in the form of both equity law and common law. Equity
law arises when judges apply general principles of ethics and fairness rather
than specific legal rules to determine the proper remedy for a legal harm. Thus,
restraining orders that prevent reporters from intimidating child celebrities
are a form of equity law. Judges also craft the common law, but judges rely
on custom, or precedent, to guide their common law decisions. Common law
often arises in novel situations not covered expressly by statutes and involves
the extension of the legal doctrines (which, essentially, are the principles or

consttutional law The set of laws

that establish the nature, functions
and limits of government.

statutory law Written law

formally enacted by city, county,
state and federal legislative bodies.

black-letter law Formally enacted,

written aw that is available in legal
reporters or other documents.

equity law Law created by judges

to apply general principles of ethrcs
and fairness, rather than specific
legal rules, to determrne the proper
remedy for legal harm.

common law Unwritten, judgemade law consisting of rules and

principles developed through
custom and precedent.

doctrines Principles or theories of

law (e.9., the doctrine of content
neutrality).

19

Sources of

the Law

example, the U.S. Constitution says nothing about municipalities; states create and determine the authority of cities or towns.
The Three Branches of Federal
Under this power, the Maine legislature amended the state conGovernment
stitution in 1,970 to increase the independent authority of towns
The Executive
and to permit them to autonomously decide whether to abandon
The president, the cabinet and the administhe traditional town meeting form of governance. In another
trative agencies execute laws.
'Sashington
State's constitution contains an explicit
example,
The Legislative
privacy clause that protects individuals from disturbances of
The Senate and the House of Representtheir private affairs. In contrast, the federal constitutional right
atives pass laws.
to privacy exists only through the U.S. Supreme Court's interThe Judicial
pretation of the protections afforded by the First Amendment.
The three levels of courts review laws
The U.S. Constitution is the supreme law of the United
and adjudicate disputes.
States. It establishes the fundamental legal rules that dictate the
proper actions of all divisions of government. As the foundation
of government, the Constitution is relatively difficult to change. There are two
ways to amend the Constitution. The first method, and the only one that actually
has been used, is for a proposed constitutional amendment to pass both chambers of Congress by a two-thirds majority vote in each. The second method is for
two-thirds of the state legislatures to vote for a Constitutional Convention, which
then proposes one or more amendments. Regardless of the proposal method,
all amendments to the Constitution also must be ratified by three-fourths of
the state legislatures. State constitutions can be amended only by a direct vote of
the people.
Congress has approved only 33 of the thousands of proposed amendments
to the U.S. Constitution, and the states have ratified only 27 of these. The first
10 amendments to the Constitution-generally known as the Bill of Rightsare of primary interest to students of journalism and mass communication
law. In fewer than 500 words, the Bill of Rights guarantees the fundamental
rights and freedoms of Americans and limits the power of government. The

First Amendment, which is the focus of Chapter 2, specifically protects the

people's freedoms of speech, press, assembly and petition. It also provides for
the free exercise of religion and prohibits government from establishing an official national religion.

Statutes
The U.S. Constitution explicitly delegates the power to enact statutory laws to
the popularly elected legislative branch of government: the U.S. Congress and the
state, county and city legislatures. Through their power to make laws, legislatures
respond to-or predict and attempt to prevent-social problems. Thus, statutory
law sometimes is extremely fact specific and defines the legal limits of particular
types of activities. All criminal laws are statutes, for example. Statutes also establish the rules of copyright, broadcasting, advertising and access to government
meetings and information. Statutes are formally adopted through a public process

21

Sources

and are meant to be clear and stable. They How a Bill Becomes a Law
are written down in statute books and codified or collected by codes into related topics, and anyone can find and read them in
public repository libraries.
The language of statutes, however,
can be unclear, imprecise or ambiguous. In

of the Law

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cases where a statute suggests more than

one meaning, courts determine the proper

meaning and application of the statute
through a review process called statutory
construction. In general, courts attempt
to interpret laws in the way the legislature
intended. Courts look to the preambles,
or statements of purpose, incorporated
into many laws as an indication of legislative intent. Committee reports, legislative
debates and the public statements of legislators and sponsors of the bills all guide

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court interpretation of a statute. Problems arise when, for example, some state
statutes fail to define key terms, such as
the word rneeting under their open meetings law. As a consequence, it is unclear

whether such laws apply to nonphysical meetings convened in electronic chat

rooms, for example.2a
Courts tend to interpret statutes narrowly and to confine a law's application
to its clearly intended meaning. Courts
prefer not to expand statutes by implication or inference beyond the statute's clear
language. The effort to interpret laws
according to the "plain meaning" of the
words-the facial meaning of the lawlimits any tendency courts might have to

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rewrite laws through creative or expansive

interpretations. This policy reflects judicial awareness that the power to write
laws rests with the publicly elected and responsible legislature. Moreover, because
most judges are not elected, the power of courts to engage in judicial review is
inherently nondemocratic.
In its own text, the U.S. Constitution establishes its supremacy over all other
laws of the land.2s The Constitution's Supremacy Clause resolves conflicts among
laws by stating that all state laws must give way to federal law, and state or federal laws that conflict with the Constitution are invalid. Statutory laws also form

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statutory construction The
review of statutes in which courts
determine the meaning and
application of statutes. Courts tend

to engage in strict construction,

which nanowly defines laws to
their clear letter and intent.

facial meaning The surface,

apparent or obvious meaning of a
legal text.

23

Sources of

fairness requires lo\Mer courts to try to apply the same principle to similar facts.
This establishes consistency and stability in the law.
Under the rule of stare decisis, the decision of a higher court, such as the U.S.
Supreme Court, establishes a precedent that is binding on lower courts. A binding
precedent of the U.S. Supreme Court constrains all lower federal courts throughout the country, and the decisions of each circuit court of appeals bind the district
courts in that circuit. Similarly, lower state courts must follow the precedents of
their own state appellate courts and the state supreme court, However, courts
from different and co-equal jurisdictions do not establish binding precedent upon
their peers. Courts in Rhode Island are not bound to follow precedents established in'slyoming, and federal district courts are not bound to apply precedents
established by appellate courts in other federal circuits. In fact, different federal
appellate courts sometimes hand down directly conflicting decisions. Courts prefer to avoid such conflicts, however, and often will look to other courts and consider their decisions as a guide when facing a novel question.
Even when the power of stare decisis is at its greatest, lower courts may
choose not to adhere to precedent. Courts may, at the risk of the judges' credibility, simply ignore precedent. After all, the common law is not written down
in one easily accessible volume. Instead, the common law must be discovered
through research in the thousands of court decisions collected into centuries of
volumes, called court reporters. Courts also may depart from precedent with
good reason. Courts examining a new but similar question may decide to modify precedent-that is, to change or revise the precedent to adapt to changed
realities and perceptions. Thus, the U.S. Supreme Court might find that contemporary attitudes and practices no longer support a 2}-yearold precedent
permitting government to maintain the secrecy of computer compilations of
public records. Given the rapid disappearance of paper records in government,
the Court might modify its precedent on application of the federal Freedom of

the Law

modify precedent To change or

revise rather than follow or reject

precedent.

Information Act (FOIA) (see Chapter 8) to find that computer compilations,

like paper records, must be available unless disclosure clearly violates personal
pvacy.26

Courts also may distinguish from precedent by asserting that differences

distinguish from precedent To

between the current case and the precedent case outweigh any similarities. Thus,
Supreme Court has distinguished between newspapers and
broadcasters in terms of any right of public access.27 The Court said the public
has a right to demand that broadcasters provide diverse content on issues of public importance because broadcasters use the public airwaves. The Court did not
apply that reasoning five years later when it considered virtually the same question as applied to newspapers. Newspaper owners, publishers and editors, the
Court said, are private, independent members of the press who enjoy a virtually
unabridgable right to control the content of their pages.

justify an outcome in a case by

asserting that differences between
that case and preceding cases

Finally, courts will occasionally, but only occasionally, overturn precedent

outright and reject the fundamental premise of that decision. This is a rare and
radical step and generally occurs only to remedy past injustices or to reflect a
fundamental rethinking of the law. In one such instance, the Supreme Court

overturn precedent To reject

the fundamental premise of a
precedent.

for example, the

outweigh any similarties.

25

The Case Process

to presidential records. Similarly, mayors and governors have issued ordersprticularly under perceived emergency conditions-that limit public freedom of
movement. For example, mayors across the country have imposed city curfews
that prohibit teenagers from being on the streets affer a certain hour and have
established no-protest zones around major, controversil events.

SUMMARY
Lnws, on LEGAI RULEs, in the United States come from six sources. Federal and state
constitutions establish government structure, responsibilities and power. Constitutions are the highest law of the land. Congress and the legislatures of every
state, city nd county enact statutes. All statutes are codified. Courts determine
the meaning of statutes through the process of statutory construction. Equity
and common law are judge-made law and are not compiled into books. Judges
create equity law when they issue orders or injunctions to solve a specific problem. The common law has developed through the body of judicial decisions
that rely on precedent and tradition to determine the outcome of disputes. The
authority of administrative agencies is established by statute to oversee complex
areas that require special expertise. Thousands of executive branch administrative agencies establish legal rules that determine everything from the definition
of false advertising to the number of different media a given corportion can
control. Executives at each level of government issue orders that have the force
of law. r

The Case Process

probable cause The standard of

Although each court and each case follows a somewhat idiosyncratic path, general patterns can be traced through the judicial process. In a criminal mtter, the
case starts when a government agency investigates a possible crime. After gathering evidence, the government arrests someone for a crime, such as distributing
obscene material through the Internet. The standard of evidence needed for an
arrest or to issue a searchlvarrant is known as probable cause, Probable cause
involves more than mere suspicion; it is a showing based on reliable information
that a crime was committed and the accused individual is likely the person who
committed it. The case then goes before a grand jury or a judge. Unlike trial juries
(also called petit juries), grand juries do not determine guilt. Instead, grand juries

evidence needed for an arrest or to

issue a search warrant. More than

are summoned on occasion to hear the state's evidence and determine whether
that evidence establishes probable cuse to believe that a crime has been committed. If the case proceeds without a grand jury, the judge is required to make a
probable cause determination at a proceeding called a preliminary hearing. If the
state fails to establish probable cause, the case may not proceed. If probable cause
is found, the person is indicted.

was commtted and whether

charges should be filed; grand
juries do not determne gult. A
grand jury may be convened on the

mere suspicion, it s a showing

through reasonably trustworthy
information that a crime has been
or is being committed.

grand jury A group summoned to

hear the state's evidence in criminal
cases and decide whether a crime

county, state or federal level; with

12 to 23 members, grand luries are
usually larger than tril juries.

27

The Case Process

the charge, by filing a motion to dismiss or by filing a motion for summary judgment. A motion to dismiss, or demurrer, is a request to a court that a complaint
be rejected because it is legally insufficient in some way. For example, a media
defendant may admit that it published the news story that upset the plaintiff but
argue that the story did not cause any legally actionable harm to the plaintiff. If
the court grants the motion to dismiss, the plaintiff may appeal.
Before a case goes to trial, the disputing parties may agree to an out-of-

court settlement. !hen this occurs, there is no public record of the outcome
of the case. Out-of-court resolutions often prohibit the parties from discussing
the terms of the settlement. Sometimes, as when Nike settled a lawsuit brought
by attorney Mark Kasky in2002,2e some terms of the settlement are publicized.
After a lengthy legal battle over Kasky's claim that Nike's statements about
working conditions at its overseas factories amounted to false advertising, the
'Sithout
parties settled out of court.
admitting liability, Nike reported on its
website that it had agreed to pay a total of $1.5 million toward independent
oversight of its factories and additional worker training and development.30
If the issues in a civil suit are narrow or the parties are close to resolution, the
judge may attempt to settle the case through a court conference. More often, the
two sides do not agree on the facts and begin to gather evidence through a process
called discovery. The discovery process can last for months, during which either
side may file motions asking the court to take action on various issues or amend
earlier complaints. In trying to build a case, one or both parties may issue a subpoena, which is a legal command for someone, sometimes a journalist, to testify
in court. \ith few exceptions, citizens are legally obligated to comply with subpoenas. The judge may issue a contempt of court citation against individuals who
refuse to comply with subpoenas. Contempt citations sometimes land journalists
in jail. Throughout the pretrial period, both sides may attempt to "spin" their case
in the media. Judges are sensitive to the potential harmful effects of pretrial publicity on the fairness of trials.
Finally, the dispute is heard in court. The majority of civil suits are resolved

trial. If no settlement is reached, the

jury
proceed
case may then
to a
trial, which is required if either party requests
jurors
it. The court summons
to the courthouse from a local pool, usually from
the voters' rolls. The locality of a lawsuit, where the original court hears the suit,
is called the venue. The location from which a court draws its pool of jurors is
the venire. The lawyers and judge select jurors through a process of questioning
called voir dire, which literally means "to speak the truth." 'hile the theoretical
goal is to form an impartial jury to hear the evidence, attorneys on both sides
hope to give themselves an advantage in the adversarial process. Today a large
number of firms, such as Trial Behavior Consulting, provide expert consulting on
jury selection, witness preparation, posttrial media interviews and the like. Either
side's attorney may challenge potential jurors "for cause," such as when a prospective juror knows a pafty in the suit. Attorneys also may eliminate a limited
number of potential jurors through peremptory challenges, in which they need
not show a reason for the rejection.
with

a settlement between the parties before

tort A private or

civil wrong for

which a court can provide remedy
in the form of damages.

strict liability Liability without

fault; liability for any and all harms,
foreseeable or unforeseen, which
result from a product or an cton.

motion to dismiss A request to

court for a complaint to be rejected

because it does not state a clm
that can be remedied by law or
because

it

is legally lacking in some

other way.

demurrer A request that a court

dismiss a case on the grounds

that although the claims are true

they are insufficient to warrant a
judgment against the defendant.
discovery The pretrial process
of gathering evidence and facts.
The word also may refer to the
specific items of evidence that re
uncovered.

subpoena A command for

someone to testify in court.
venue The locality of a lawsuit
and of the court hearing the suit.
Thus, a change of venue means a
relocation of a trial.

venire Literally, "to come" or "to

appear"; the term used for the
location from which a court draws
its pool of potential jurors, who
must then appear in court for voir
dire; a change of venire mens a
change of the location from which
potential jurors are drawn.

voir dire Literally, "to speak

the truth"; the questioning of
prospectve jurors to ssess Lheir
suita bility.

peremptory challenge During

jury selection, a challenge in which
an attorney rejects a juror without
showing a reason. Attorneys
have the right to eliminate a
limited number of jurors through
peremptory challenges.

29

The Case Process

After all the evidence is presented at trial, the judge issues instructions to
the jury on how the law should be applied to the fcts of the case. Then the
jury deliberates. If the jury cannot reach a verdict, it may be necessary to hold
a new trial with a new jury. More typically, a jury deliberates until it reaches a
verdict. The judge generally accepts the verdict and enters it as the judgment of
the court. However, the judge has the authority to overturn the verdict if he or
she believes it is contrary to the law. If the plaintiff is successful, he or she will
usually be awarded damages. After the judgment of the court is entered, either
the plaintiff or the defendant may appeal. For example, having the jury properly
instructed on the law is part of the right of due process, and improper instructions sometimes form the basis for appeal. The person who appeals, called the
petitioner or appellant, challenges the decision of the court. The respondent to
the appeal, or the appellee, wants the verdict to be affirmed. It can take years and
cost hundreds of thousands of dollars to appeal a case up to the Supreme Court.
As noted previously, the chance the Court will agree to hear an appeal is slim.

appellant The party making the

appeal; also called the petitioner

appellee The party against whom

an appeal is made.

Summary Judgment
'Shen

parties ask a court to dismiss a case, they file a motion for summary judgment. Parties moving for summary judgment seek to avoid the cost and risk of
losing at trial by demonstrating to the judge that no material issues of fact remain
in dispute. A motion for summary judgment must be filed with supporting evidence. A summary judgment is just what the name implies: a judge summarily
decides the case and issues a judgment. Thus, a summry judgment results in a
legal determination by a court without a full trial. A court's summary judgment
may be issued based on the merits of the case as a whole or on specific issues
critical to the case. If the judge determines there are no material issues of fact
remaining for trial, the judge hands down a summary judgment in favor of one
party.lf there is no summary judgment or other form of pretrial dismissal, law-

summary judgment The quick

resolution of a legal dispute in
which a judge summarily decides
certain points and issues a

judgment dismissing the

case.

suits generally proceed to trial.

A summary judgment can occur at any of several points in litigation, but usually prior to trial. In a libel case, this generally occurs when a plaintiff is clearly
unable to meet one or more elements of the burden of proof (see Chapter 4).
The U.S. Supreme Court has said that courts considering motions for summary
judgment "must view the facts and inferences to be drawn from them in the light
most favorable to the opposing party."31 In libel cases, this means that courts
must take into account the burden the plaintiff is required to meet at trial. The
Court created this hurdle for individuals seeking summary judgment because the
nonmoving party loses the opportunity to present his or her case when a judge

grants summary judgment to the opposing side.32

Summary judgments can be important tools for protecting free expression,
particularly in an environment in which plaintiffs have harassed the media by
filing frivolous lawsuits. One federal judge wrote that summary judgments are
especially important in the First Amendment area.33 Societal interest in free and

31