Test Bank for The Law of Public

Test Bank for The Law of Public Communication, 12e William Lee, Daxton Stewart, Jonathan Peters (All Chapters)

Chapter 1 Updated 2022

• True/False Questions

1) The federal constitution is the country’s ultimate legal authority. (True)

2) The U.S. Supreme Court, the nation’s supreme judicial body, has the last word on the meaning of the federal constitution. Each state’s supreme court is the interpreter of that state’s constitution. (True)

3) Amendments to the U.S. Constitution must be ratified by three-fourths of the state legislatures or by state constitutional conventions in three-fourths of the states. (True)

4) The federal constitution is easy to amend and therefore has been changed frequently.(False)

5) Federal regulatory agencies are bound by the requirements of the Administrative Procedure Act (APA). The APA specifies the procedures that must be employed when an agency enacts rules or enforces regulations. (True)

6) A Federal Communications Commission (FCC) rule limiting the amount of advertising appearing in a magazine may be challenged on the ground that the agency has exceeded its statutory authority. (True)

7) The Supremacy Clause of the U.S. Constitution provides that state law cannot supersede federal law. (True)

8) Most communication cases are brought in criminal court rather than civil court. (False)

9) Common law is enacted by legislatures or administrative agencies. (False)

10) The U.S. Constitution mandates only one federal court, the U.S. Supreme Court, but allows Congress to create other courts. (True)

11) The U.S. Constitution provides that amendments must be ratified by the President.(False)

12) Three circuits of the U.S. Court of Appeals, the Second Circuit, the D.C. Circuit, and the Ninth Circuit, are especially important to communication law. (True) 1 / 4

13) The U.S. Supreme Court rarely exercises original jurisdiction; it primarily functions as an appellate court. (True)

14) In 2016, Senate Republicans refused to confirm President Obama’s nominee to fill the U.S. Supreme Court vacancy created by the death of Justice Scalia. (True)

15) If the U.S. Supreme Court splits 4–4 on a case, it affirms the lower court judgment without indicating how individual justices voted; no Supreme Court precedent is created by such summary affirmance. (True)

16) The U.S. Supreme Court refuses to grant the vast majority of petitions for certiorari it receives. (True)

17) In criminal cases, the burden of proof requirement is known as “beyond a reasonable doubt.” In civil cases, same burden of proof requirement applies. (False)

18) Unlike federal judges, most state court judges are elected. (True)

19) Of the six sources of law in the United States, the common law is the most important.(False)

20) The number of cases filed with the U.S. Supreme Court has remained stable since 1954.(False)

21) With a 6–3 conservative/liberal split on the Supreme Court, the days of a single swing justice may be over. Instead, the center of the Court includes four justices: Chief Justice Roberts and Justices Gorsuch, Kavanaugh, and Barrett. (True)

22) Obscenity law is an example of a type of law enforced by private parties through civil actions. (False)

23) Chief Justice Rehnquist sought to reduce the number of cases heard by the Supreme Court. In the later part of his tenure, the Court agreed to hear arguments in fewer than 100 cases a term. (True)

24) A legal wrong committed by one person against another is often called a tort. (True)

25) Original jurisdiction cases are increasingly rare on the Supreme Court’s docket. (True)

II. Key Terms

1) Common law: The body of law developed from custom and tradition as recognized by judicial decisions. Common law is largely based on previous judicial decisions. The judicial policy of stare decisis, which means “let past decisions stand” is critical in common law. In 2 / 4

common law cases, a judge decides a case by applying the law established by other judges in earlier, similar cases.

2) Statutory law: The law made by statutes enacted by legislative bodies such as the U.S.Congress and state legislatures. Statutes set forth enforceable rules to govern social behavior; almost all of this country’s criminal law is statutory. Since legislatures have no enforcement powers, they necessarily rely upon the executive branch to enforce laws. For example, the executive branch decides how vigorously obscenity statutes will be enforced. The judicial branch interprets statutes and has the authority to find that statutes are unconstitutional.

3) Administrative law: Rules and decisions created by administrative agencies such as the FCC, the FTC, and the SEC. Congress creates administrative agencies to supervise activities or industries that require more attention than legislatures can provide. Administrative agencies are unique in the American system of government because they engage in activities that resemble legislative, executive, and judicial functions. Administrative agencies engage in rule making, a process similar to the legislative function. They also perform executive functions when they enforce rules against a firm or individual. Finally, they adjudicate disputes, resolving complaints against firms or individuals.

4) Appellate courts: A court that reviews the actions of a lower court after an appeal by one of the parties in a case. Appellate courts do not hold new trials and generally do not reevaluate the facts of cases. Rather, their responsibility is to ensure that trial courts use the proper procedures and apply the law correctly. Appellate court judges decide cases primarily on the basis of lower court records, briefs written by lawyers, and oral arguments by attorneys. Both the federal and state court systems have intermediate appellate courts and final or supreme courts.

5) Certiorari: The name of a writ asking the U.S. Supreme Court to review a case. The U.S.Constitution specifies only a small number of instances where the Supreme Court has original jurisdiction and few cases go to the Supreme Court on automatic appeal. Thus, the Court has great discretion in selecting which cases it will hear. Parties seeking Supreme Court review of a lower court decision submit a petition for certiorari which explains why the issues in the case warrant the attention of the Supreme Court. The Court usually accepts cases presenting important new legal issues or to resolve disputes among lower courts. Four justices must vote yes if the Court is to grant a writ of certiorari. The Court rejects about 99% of the petitions for certiorari.

III. Essays

1) Explain the three types of challenges that may be raised against an administrative agency’s action.

Federal judges reviewing agency actions ensure that administrative agencies act with the boundaries set by the Constitution and statutory law. An administrative agency is given a specific grant of authority from Congress to regulate certain areas or activities. Thus, one challenge that may be raised against an agency’s action is that the agency has exceeded its statutory authority. For example, until 2009, Congress specifically excluded tobacco products from the FDA’s jurisdiction. In a 2000 case, the tobacco industry claimed the FDA exceeded the 3 / 4

authority then granted by Congress when the FDA banned outdoor tobacco advertisements near schools and playgrounds. The Supreme Court agreed with the tobacco industry, stating that an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.

Administrative agencies are also required to engage in reasonable decision making. This means that agency actions may be challenged as being arbitrary and capricious. Courts reviewing agency actions under this standard do not substitute their judgment as to what is the best policy.Rather, they merely explore the agency’s action to determine if it is illogical. For example, an appellate court ruled that the FCC was arbitrary and capricious when it ruled that one company could own two television stations in the same market but not a television station and a cable system. The court said it was illogical for the FCC to conclude that tv station and cable system ownership was harmful when the agency found that multiple tv station ownership was in the public interest.

Finally, administrative law must comply with the Constitution. Since regulatory agencies such as the FCC, FTC, FEC, and SEC can affect public communication, courts closely examine the rules of those agencies to ensure that First Amendment rights are not harmed. For example, the Supreme Court ruled that the FEC acted unconstitutionally when it sought to punish the Colorado Republican Party for purchasing radio advertising during a political campaign. The Supreme Court ruled that a political party’s independent expenditures were constitutionally protected speech and exempt from FEC regulation.

2) Describe the U.S. Supreme Court’s process in hearing and deciding a case.

The Constitution specifies only a limited number of instances in which the Supreme Court has original jurisdiction in a case. Thus, the Court has great discretion in deciding which cases it will hear. A party seeking Supreme Court review of a case files a petition for a writ of certiorari; the petition explains why the case involves issues of significance. If four justices agree with the petition, the Court places the case on its calendar.

Once a writ of certiorari is issued, the attorneys file briefs arguing their positions. The briefs describe the facts of the case, the decisions by lower courts, and legal arguments. After the justices review the briefs, the Court hears oral argument. Typically, each side receives one half hour; an attorney’s presentation is frequently interrupted by justices asking questions or challenging the arguments being presented.

After the oral arguments, the justices meet to discuss the case. During this conference, a vote is taken. If the Chief Justice is in the majority, he decides who will write the opinion of the Court.If the Chief Justice is in the minority, the senior justice in the majority assigns the opinion writing task. The choice of an author for an opinion is significant because the author can weave in his or her political philosophy, view of the role of the Court, and interpretation of law.

After a justice drafts an opinion for the Court, the draft is circulated to the other justices for comment. Drafts of concurring and dissenting opinions may be shared as well. The justices may bargain over the language in the drafts and votes may shift. Once finalized, the opinion of the

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