Preview Extract
Chapter 1 Public Communication and the Law
True/False Questions
1) The federal constitution is the country's ultimate legal authority.
Answer: True
Rationale:
The federal constitution is indeed the supreme law of the land in the United States. It
establishes the framework for the federal government, outlines the powers and duties of its
branches, and sets limits on the government's authority. All laws, whether federal, state, or
local, must comply with the provisions of the federal constitution, making it the ultimate legal
authority.
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.
Answer: True
Rationale:
The U.S. Supreme Court is the highest court in the country and has the authority to interpret
the federal constitution. Its interpretations are binding on all lower courts and government
entities. Similarly, each state's supreme court is the final authority on interpreting its
respective state constitution.
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.
Answer: True
Rationale:
Article V of the U.S. Constitution outlines the process for amending the constitution, which
requires either approval by three-fourths of state legislatures or by state conventions in threefourths of the states. This provision ensures that amendments reflect widespread support
across the nation.
4) The federal constitution is easy to amend and therefore has been changed frequently.
Answer: False
Rationale:
While the U.S. Constitution can be amended, the process is intentionally difficult to ensure
stability and prevent hasty changes. As a result, amendments are relatively rare, with only 27
amendments ratified since the Constitution's adoption in 1787.
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.
Answer: True
Rationale:
The Administrative Procedure Act (APA) establishes procedures that federal agencies must
follow when promulgating rules and regulations. These procedures include public notice,
comment periods, and transparency requirements, ensuring accountability and fairness in the
regulatory process.
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.
Answer: True
Rationale:
Administrative agencies like the FCC derive their authority from enabling statutes passed by
Congress. If an agency exceeds its statutory authority, its actions may be challenged in court
as being ultra vires, or beyond its legal authority.
7) The Supremacy Clause of the U.S. Constitution provides that state law cannot supersede
federal law.
Answer: True
Rationale:
The Supremacy Clause, found in Article VI of the U.S. Constitution, establishes that federal
law takes precedence over conflicting state laws. This principle ensures uniformity in federal
law and prevents states from undermining federal authority.
8) Most communication cases are brought in criminal court rather than civil court.
Answer: True
Rationale:
Communication cases, such as those involving defamation or copyright infringement, are
typically civil matters rather than criminal offenses. Civil courts handle disputes between
private parties seeking damages or equitable relief, while criminal courts adjudicate cases
involving violations of criminal law and potential punishment by the state.
9) Common law is enacted by legislatures or administrative agencies.
Answer: False
Rationale:
Common law is a body of law developed by judges through decisions in court cases rather
than being enacted by legislatures or administrative agencies. It is based on precedent and
legal principles rather than statutory law.
10) The U.S. Constitution mandates only one federal court, the U.S. Supreme Court, but
allows Congress to create other courts.
Answer: True
Rationale:
The U.S. Constitution establishes the Supreme Court as the highest federal court, but it also
grants Congress the authority to establish lower federal courts as needed. This provision
allows Congress to create specialized courts and to determine their jurisdiction and structure.
11) The U.S. Constitution provides that amendments must be ratified by the President.
Answer: False
Rationale:
According to Article V of the U.S. Constitution, amendments must be proposed by Congress
or a national convention and ratified by either three-fourths of state legislatures or by
conventions in three-fourths of the states. The President does not have a formal role in the
amendment process.
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.
Answer: True
Rationale:
The Second Circuit, D.C. Circuit, and Ninth Circuit Courts of Appeals are indeed significant
in communication law due to their jurisdiction over key areas such as New York (Second
Circuit), Washington, D.C. (D.C. Circuit), and California (Ninth Circuit), which are hubs for
media, telecommunications, and technology industries.
13) The U.S. Supreme Court rarely exercises original jurisdiction; it primarily functions as an
appellate court.
Answer: True
Rationale:
The U.S. Supreme Court's primary function is to serve as an appellate court, reviewing
decisions made by lower courts. It exercises original jurisdiction in a limited number of cases,
such as disputes between states or cases involving ambassadors, but such instances are
relatively rare compared to its appellate jurisdiction.
14) The majority of justices currently serving on the U.S. Supreme Court were appointed by
Republican presidents. Consequently, the Court is more conservative now than during the
1960s when a majority of the justices had been appointed by Democrats.
Answer: True
Rationale:
As of the original writing, the majority of justices on the U.S. Supreme Court were indeed
appointed by Republican presidents, leading to a perception of a conservative-leaning Court.
This contrasts with the 1960s when a majority of justices had been appointed by Democratic
presidents, potentially resulting in a different ideological balance on the Court.
15) Justices Scalia and Thomas are likely to vote with Justices Ginsburg and Breyer.
Answer: False
Rationale:
Justices Scalia and Thomas were known for their conservative judicial philosophies, while
Justices Ginsburg and Breyer were associated with more liberal viewpoints. Therefore, it was
less likely for Scalia and Thomas to align with Ginsburg and Breyer in their decisions.
16) The U.S. Supreme Court refuses to grant the vast majority of petitions for certiorari it
receives.
Answer: True
Rationale:
The U.S. Supreme Court receives thousands of petitions for certiorari each year but grants
only a small fraction of them. The Court's limited docket means that it must be selective in
choosing cases, typically accepting those involving significant legal issues or conflicts among
lower courts.
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.
Answer: False
Rationale:
In criminal cases, the burden of proof rests with the prosecution, which must prove the
defendant's guilt "beyond a reasonable doubt." In civil cases, the burden of proof is generally
lower, typically requiring a preponderance of the evidence, which means that the plaintiff
must demonstrate that it is more likely than not that the defendant is liable.
18) Unlike federal judges, most state court judges are elected.
Answer: True
Rationale:
While federal judges are appointed by the President and confirmed by the Senate, the
selection process for state court judges varies by state. In many states, judges are indeed
elected by voters in either partisan or nonpartisan elections.
19) Obscenity law is an example of a type of law enforced by private parties through civil
actions.
Answer: False
Rationale:
Obscenity law is typically enforced by governmental authorities through criminal
prosecutions rather than by private parties through civil actions. Civil actions may involve
other types of legal claims such as defamation, breach of contract, or personal injury.
20) Of the six sources of law in the United States, the common law is the most important.
Answer: False
Rationale:
While common law is an essential source of law in the United States, it is not considered the
most important. The primary sources of law also include constitutional law, statutory law,
administrative law, executive orders, and treaties, each playing a significant role in the legal
system.
Essay Questions
1) Explain the three types of challenges that may be raised against an administrative agency's
action.
Answer: 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, Congress specifically excluded tobacco products from
the FDA's jurisdiction. When the FDA banned outdoor tobacco advertisements near schools
and playgrounds, the tobacco industry claimed that the agency had exceeded the authority
granted by Congress. 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.
Answer: 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 Court is publicly announced. Typically, a justice is identified as the author of the
Court's opinion. Where the opinion is not attributed to a justice, it is noted as a per curiam
opinion.
For an opinion to be binding precedent it must have the support of a majority of the justices
participating in the case; this is usually five justices. In situations where no opinion attracts
the support of the majority of the justices, the opinion with the most support is known as a
plurality opinion.
Key Terms
1) Common Law
Answer: 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 common
law cases, a judge decides a case by applying the law established by other judges in earlier,
similar cases.
2) Statutory Law
Answer: 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
Answer: 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
Answer: 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
Answer: 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 more than 95% of the
petitions for certiorari.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
9780205484683
