First Amendment

LAW 421 WEEK 2 DISCUSSION QUESTIONS 1 and 2

DQ#1: What are the elements of negligence? How does an intentional tort differ from negligence? Provide examples. How does the strict liability doctrine apply to the practice of accounting? Provide examples.

ANSWER:

There are five (5) elements that must be proven in a court of law before a claim of negligence can be justified:

1.Duty - Helps determine if the alleged owed a duty of care to begin with.

2.Breach of Duty - Did the alleged fail to exercise reasonable care.

3.Cause in Fact - Would the alleged victim have suffered damages.

4.Proximate Cause - Was there a recognized link between a breach of duty and damages suffered by the injured.

5.Actual Damages - Did the injured party suffer physical harm that resulted in recognized losses.

The difference between an intentional tort versus a claim of negligence is that intentional torts are committed with the intention to do physical harm, such as when someone assaults another. Negligence is the exposure that physical harm will occur without expecting or intending to do so. An example of negligence is a sharp knife that is left by an adult on a table and a small child gets hold of it and injures themselves.

The strict liability doctrine applies to the practice of accounting because one is prohibited from intermingling funds from a business partner with one's own personal funds, which would violate the fiduciary duties of the business partner. For instance, it would be considered a violation if I paid my personal bills with funds my business partner placed in my possession to take care of a business account.

DQ#2: Does the First Amendment to the U.S. Constitution protect defamation? Explain why or why not. What is the relationship between the First Amendment of the U.S. Constitution and censorship when doing business? Explain.

ANSWER:

Since the First Amendment of the U.S. Constitution (part of the Bill of Rights) protects one's rights concerning religious preferences, freedom of speech, the right to assemble in a peaceful manner, and freedom of the press, it can also protect cases of defamation if one makes statements that imply a factual claim and is stated in a manner that makes a person or a business look bad. The First Amendment previously applied to laws that were enacted by Congress, however, the court later recognized exceptions to provisions that protect freedom of speech under the Due Process Clause as outlined in the Fourteenth Amendment.

The relationship between the First