JO350: Law and Ethics of Journalism

Libel

A written defamation of a person's character, reputation, business, or property rights.

Preliminary Hearing

An initial hearing in which a judge decides if there is probable cause to believe that the defendant committed the crime with which he or she is charged (see Press Enterprise II)

Hate speech (definition and constitutional protections)

Definition: a category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like. Constitutional Protections: Laws that regulate so-called hate speech are generally found unconstitutional, as the court applies the strict scrutiny test. Unless such speech will likely incite immediate violence, it is protected speech

Sheppard v. Maxwell (1966) (the Sheppard Rules)

Facts of the Case: Samuel Sheppard challenged his guilty conviction of the second-degree murder of his wife, alleging the trial was unfair due to the excessive media coverage and publicity that occurred.

Negligence

Failure to use reasonable care, resulting in injury or harm to an individual.

Reporter's Privilege and the Branzburg dissent (Stewart) test

Reporter's privilege refers to any statutory protections on journalists from revealing their confidential sources. The three-part balancing test from the dissenting opinion in Branzburg v. Hayes says that, in order to break reporter's privilege, the government must prove: 1) probable cause to believe the journalist has information clearly relevant to a probable crime; 2) this information cannot be obtained through some other means that is less destructive to First Amendment rights 3) a compelling and overriding interest in the information.

Types of state and federal courts

State Courts: State Constitutions establish these courts, and usually include a Supreme Court, intermediate Appeals Courts, and state trial courts. Federal Courts: Article III of the Constitution established the judiciary, including U.S. District Courts, Circuit Courts of Appeal and the U.S. Supreme Court.

Motion to dismiss

a request to a court to reject a complaint because it does not state a claim that can be remedied by law or is legally lacking in some other way

Libel defenses

- Truth (or substantial truth) is the most common libel defense - Anti-SLAPP Protections exist in 31 states that try to combat strategic lawsuits against public participation, which suppress critical speech - Fair Report Privilege: reporters cannot be held liable for libel in statements from official government documents - Fair Comment and Criticism protects critics from lawsuits by those in the public eye - Opinion is also a very strong defense (Ollman, Milkovich)

Time, place, manner restrictions on speech

A First Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also, the laws that regulate these conditions

Compelling government interest

A government interest of the highest order, an interest that the government is required to protect

Right to Privacy

A newsgathering tort that allows an aggrieved person to sue another party for: 1) Unlawfully intruding on his or her private affairs 2) Portraying him or her in a false light 3) Unfairly benefiting from his or her name or reputation 4) Disclosing his or her private information

Writ of certiorari

A petition for review by the Supreme Court of the United States

Rationale and purpose of Privacy Protection Act of 1980

After Zurcher v. Stanford Daily, Congress passed the Privacy Protection Act of 1980, which prohibits the "use of search warrants against public communicators," including journalists and their "work product" or "documentary materials" as part of a criminal investigation, with very limited exceptions.

Six sources of the law and how laws are created (p.6)

Constitutions establish the nature, functions and limits of government, including the judiciary. It acts as the bedrock of law, and is relatively difficult to change. Statutes are written laws formally enacted by city, county, state and federal legislative bodies, including all criminal law and many statutes regarding copyright, broadcasting, and access to information. Equity Law is law created by judges to decide cases based on fairness and ethics and also to determine the proper remedy. Common Law is judge-made law composed of the principles and traditions established through court rulings; in other words, common law is precedent-based law. Administrative Law is the orders, rules and regulations promulgated by executive branch administrative agencies to carry out their delegated duties. Executive Orders are orders from a government executive, such as the president, a governor or a mayor, that have the force of law.

Content neutral v. content based

Content neutral laws do not refer to the substance of the speech, but rather the time, place, or manner Content-based laws discriminate based on the substance of the speech itself

Legal rationale behind copyright protection

Copyright protection was encoded in Article 1, Section 8 of the Constitution, which was soon followed by the Copyright Act of 1790.

What copyright protects

Copyright protects original works of authorship fixed in any tangible medium of expression, capable of being seen, reproduced or otherwise communicated, and must be something no one else has before created.

Press Enterprise v. Superior Court I (1984) and 2 (1986) (access to jury selection)

Facts of Case I: A defendant was charged with rape/murder of a teenage girl in California, with voir dire lasting six weeks, with all but three days closed to the press. The judge then refused to release the transcript of voir dire to the media, which resulted in them suing. Court's Decision 1: The Court ruled that a judge cannot close jury selection in a criminal trial without first considering any alternatives to closure, and articulating specific findings as to why it is necessary to protect jurors via closure. Facts of Case II: Nurse Diaz was convicted of murdering 12 patients while on-duty. He requested that his preliminary hearing be closed, and the judge barred the public from the 41-day hearing. The media challenged the release of the transcript Court's Decision 2: The Court found that preliminary hearings in criminal trials cannot be closed to the public with some exceptions unless there is: 1) specific, on-the-record findings with a "substantial probability" that openness will jeopardize the defendant's right to a fair trial, and; 2) convincing evidence that closure is "essential" to preserve trial's fairness.

Cox Broadcasting Corporation v. Cohn (1975)

Facts of the Case: A 17-year-old girl was raped and murdered in Georgia. After a court indictment named the victim, a reporter reported her name. The father of the girl sued the TV station who broadcast her name. A trial and a Georgia Supreme Court ruled in the father's favor. The Court's Decision: The Supreme Court reversed, noting that the First Amendment protects the press against a private facts tort if the information is obtained from generally available public records. In those cases, there is no reasonable expectation of privacy.

Branzburg v. Hayes (1972) (including Branzburg test)

Facts of the Case: A Kentucky reporter named Branzburg was called to testify before a grand jury who had interviewed many drug dealers and users. Branzburg refused to testify or give up his sources. The Court's Decision: The U.S. Supreme Court has ruled that reporters cannot withhold information from a grand jury they obtain from a confidential source, and that an absolute privilege protecting journalists. The dissent in Branzburg created a three-part test for deciding whether a reporter has to do so which has become the standard in law.

Tinker v. Des Moines Independent Community School District (1969)

Facts of the Case: A group of Des Moines students wore black armbands to school to support peace in Vietnam. The school created a policy banning the armbands at risk of suspension. Two students wore the armbands anyways, and were suspended. They sued the school district, to which the district court and 8th Circuit Court of Appeals affirmed. The Court's Findings: The Supreme Court held in a 7-2 decision that the armbands represented symbolic expression "akin to pure speech," and that students did not lose their freedom of speech on school property. The opinion established the Tinker test, whereby school officials must prove that the speech/conduct in question would "materially and substantially interfere" with the operation of school.

Milkovich v. Lorain Journal (1990)

Facts of the Case: A sports columnist of the Lorain Journal in Ohio wrote that a wrestling coach committed perjury under oath in his column. The wrestling coach (Milkovich) sued for libel. The Court's Findings: The Court found that the columnists made assertions of fact that could be proven false via grand jury transcripts. Through the Milkovich decision, the Court created two tests to determine fact from opinion: 1) Verifiability: Can the statement be proven true or false? 2) Context: Consideration of general context, including the work at issue and where the work appears. A statement that fails either test is called an opinion.

Richmond Newspapers v. Virginia (Access to prelim. trials)

Facts of the Case: After the same court case, a criminal trial in Virginia was closed to the public and the press. The Court's Findings: The right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments, and that the Sixth Amendment right to a public trial does not belong solely to the defendant. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.

Hustler v. Falwell (1988)

Facts of the Case: An issue of Hustler Magazine published in November of 1983 included a scandalous advertisement featuring Falwell, a political figure and popular minister, which featured dialogue regarding a drunken sexual incident with his mother. The advertisement was labeled as a "fiction" and "ad parody." Falwell sued on emotional distress grounds. The Court's Findings: Though they find that satire isn't always protected, public officials can win emotional distress cases if they prove the defendants intentionally published the material with actual malice, especially because many, like Falwell, file for IIED suits after their libel claims are rejected. In Falwell's case, the Supreme Court found that Falwell did not prove actual malice, as there were no assertions of fact in the parody.

Elonis v. United States (2015)

Facts of the Case: Anthony Elonis and his wife were getting separated in Pennsylvania. An aspiring rapper, Elonis posted a piece of lyrical work directed towards his wife on Facebook, filled with some violent threats. His wife, scared, went to the authorities, who arrested and convicted Elonis under a criminal statute of making threats. Elonis, using a defense of him being an "aspiring rapper," claimed he never meant her any physical harm. The Court's Decision: The Supreme Court agreed with Elonis, finding that the plaintiff's argument did not meet the second part of the Brandenberg test, or that the defendant was likely to act on the violent action detailed in the speech.

Katz v. US (1967) (including Katz test)

Facts of the Case: Charles Katz was illegally betting on public pay phones, so federal agents placed an eavesdropping device inside of the pay phone. Based on recordings from inside the payphone, Katz was arrested and convicted. Katz challenged his conviction, claiming that the recordings were inadmissible evidence and an invasion of his privacy. The Court's Findings: The Katz conviction was thrown out, as Katz had "reasonable expectation of privacy" inside of the phone booth, essentially extending a person's right to privacy to all areas where there is a justifiable expectation of privacy, and that a violation of the right of privacy doesn't have to be an actual physical trespass.

Ollman v. Evans (1984)

Facts of the Case: Columnists Rowland Evans and Robert Novak were sued by a Ollman, a New York University professor, was a Marxist in a 1978 published column. The Court's Decision: The Court decided that the statements were protected as opinion, and created the Ollman test for deciding similar cases for libel. This test includes the following questions: 1) Is the statement verifiable? 2) What is the common usage or meaning of the words? 3) What is the journalistic context of the statement? 4) What is the broader social context the statement fits in?

Riley v. California (2014)

Facts of the Case: David Riley was a member of a San Diego gang called Lincoln Park (haha), and was involved in a drive-by shooting. In August of 2009, Riley was pulled over with a suspended driver's license, and his car was impounded. During the search of his car, police found two illegally purchased guns and Riley was arrested. Afterwards, Riley's phone was confiscated and searched, where evidence of his involvement with the gang and the shooting was found. He was subsequently charged and convicted based on that evidence. The Court's Findings: The Supreme Court found that Riley's Fourth Amendment rights regarding unreasonable searches were violated, and that the search and seizure of cell phones required a warrant, as cell phones were more similar to computers than other items that could be seized off a person's person, like a wallet.

Gertz v. Welch (1974)

Facts of the Case: Gertz, a private lawyer, sued The American Nation after they published an article claiming Gertz was a member of the communist party. Gertz then sued. The Court's Findings: The Court Found that Gertz "plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome." Therefore, the Court established a new protection for claims of libel brought by private individuals - negligence - and they left it to the states to not impose "strict liability"

New York Times v. Sullivan (1964)

Facts of the Case: In the early 1960s during the height of the Civil Rights movement, the New York Times published an ad featuring Martin Luther King Jr., asking for donations for a legal fund against a court case accusing King Jr. of perjury. The ad contained a few of small errors regarding the police in Montgomery, Alabama in their dealing with protestors. Sullivan, a Police Commissioner, sued for libel after the Times refused to recant, winning at lower court and Alabama Supreme Court The Court's Findings: The Supreme Court reversed the decision, saying that Sullivan had to prove that the Times published the advertisement with actual malice, creating that legal principle.

New York Times Co. v. United States (1971)

Facts of the Case: The Nixon Administration attempted to prevent the New York Times from publishing the Pentagon papers related to U.S. activities in Vietnam via a court injunction. A district court agreed, and prevented publication. The NY Times appealed, citing the 1st Amendment, while the Nixon Administration argued prior restraint was justified to protect national security. The Court's Findings: Acting quickly, the Supreme Court said that the injunction was unconstitutional prior restraint, as the government failed to prove clearly and convincingly that the speech would have caused great and certain harm to national security.

Zurcher v. Stanford Daily (1978) (and legal issues with newsroom searches)

Facts of the Case: The Palo Alto Police Department obtained a warrant to search a student newspaper at Stanford University, The Stanford Daily, to identify the perpetrators of a violent altercation between police and protestors. The warrant was carried out, though nothing was taken from the newspaper. The Stanford Daily sued on Fourth Amendment grounds. Previous courts ruled in Stanford Daily's favor, saying that the search warrant was unreasonable unless a subpoena was impractical, and that the searching of newsrooms could interfere with freedom of the press. The Court's Decision: Newsrooms have no additional protection from search warrants beyond that entitled to any ordinary citizen. Nothing in either the Fourth (or the First, by omission) Amendment restricts the searches of newsrooms.

Near v. Minnesota (1931)

Facts of the Case: The publisher of a Minneapolis newspaper printed charges that city officials allowed Jewish gangsters to run gambling, bootlegging and racketeering businesses across the city. When the publisher could not show the attacks were true and published with good intent, the court shut down the paper under a Minnesota public nuisance law. The Court's Decision: The Court said that prior restraint, especially any outright ban on expression, is the least tolerable form of government intervention in the speech marketplace. The decision said that the government may not censor or prohibit a publication in advance, except when a communication is obscene, incites violence or reveals military secret AND the government makes a specific showing that a prior restraint is justified.

Snyder v. Phelps (2011)

Facts of the Case: Westboro Baptist Church protestors picketed 1,000 feet from the funeral of a fallen Marine in Kansas with their usual shtick. The Marine's father, who saw the protest on TV after the funeral was over, sued for IIED, saying signs like "God hates You" were directed at him. The District Court ruled in Snyder's favor, while the 4th Circuit reversed. The Court's Decision: The Supreme Court agreed with the 4th circuit, finding that the protest "dealt with matters of public concern," and that the First Amendment, therefore, protected their actions.

Marbury v. Madison (1803)

Facts of the Case: William Marbury was one of John Adam's 42 midnight appointees, who did not receive his commission after Jefferson took office. He sued Madison, then-Secretary of State, under the Judiciary Act of 1789, to deliver the commission. The Court's Findings: Described as "one of the greatest legal events" in U.S. history, the Marbury v Madison decision established the Supreme Court's power of judicial review, which gave the court the power to determine the meaning of the Constitution, and strike down laws the Court finds to be in conflict with the Constitution.

Four types of privacy torts

False Light: intentionally or recklessly publishing false information a reasonable person would find offensive Appropriation: using another's name or likeness for advertising or commercial purposes without permission Intrusion: intentionally intruding on another's solitude or seclusion Private Facts: publishing private, embarrassing facts

Defenses for each of the four privacy claims

False Light: media may use the libel defenses to defeat false light claims, Appropriation: Intrusion: Private Facts:

Requirements of plaintiff to prove infringement

In infringement cases, plaintiffs must prove: 1) The work is an original work fixed in a tangible medium; 2) The plaintiff owns copyright, and; 3) The defendant directly copied the work OR had access to the work and the two works are substantially similar

Six elements of libel (what plaintiff has to prove)

In libel cases, a plaintiff must prove that the speech is: 1) A statement of fact, 2) That is published, 3) That is of and concerning the plaintiff, 4) That is defamatory, 5) That is false, 6) That causes damage (or harm) for which the defendant is at fault.

Intentional v. Negligent Infliction of Emotional Distress

Intentional: extreme and outrageous intentional or reckless conduct causing plaintiffs severe emotional harm; public official and public figure plaintiffs must show actual malice on the defendant's part Negligent: careless breach of duty that causes the plaintiff severe emotional harm

Six core values of free speech

It aids the search for truth It's a way to express ourselves and our liberty

Defenses to Emotional Distress claims

Libel defenses tend to be effective defenses to ED claims. Some states also require proof of physical injury in NIED suits.

Nine exemptions federal government can use to withhold information

National security, interagency rules and procedures, disclosures forbidden by other statutes, trade secrets, agency memoranda, personal privacy, law enforcement records, financial records, geological data

Change of Venue

One of Sheppard's rules; does not always work when it comes to jurisdiction

U.S. Freedom of Information (how it works, when/why it was enacted)

Passed more than 50 years ago, FOIA was intended to permit any person access to records, or anything in documentary form, held by federal executive branch agencies. It has been amended several times to include electronic records and other things. FOIA requests can be completed through several means, and federal agencies have 20 days to respond (in states, it's generally shorter)

Plaintiff's case in Privacy cases

Plaintiffs in privacy cases must prove: 1) the material was published; 2) the plaintiff was identified; 3) the published material was false or created a false impression; 4) the statements or pictures put the plaintiff in a false light that would be highly offensive to a reasonable person, and; 5) the defendant acted with actual malice, regardless if the plaintiff is public or private.

Plaintiff's Case in IIED cases (including public officials)

Plaintiffs must prove in IIED cases that the defendant's conduct was: 1) extreme and outrageous - beyond the bounds of decency tolerated in civilized society; 2) and involved actual malice, if the plaintiff was a public figure

Plaintiff's Case in NIED cases

Plaintiffs must prove in NIED cases that: 1) The defendant had a duty to use due care; 2) The defendant negligently breached that duty; 3) The breach caused the plaintiff's injury; 4) The breach was the proximate cause of the plaintiff's severe emotional distress (proximate cause refers to whether it's reasonable the defendant's actions actually caused harm)

Burden of proof for public figures/officials and private persons

Public officials must prove actual malice, or that either information was published knowing said info was false OR that those statements were published with reckless disregard. Private persons must simply prove negligence, or that they failed to use reasonable care

Recklessness in emotional distress claims

Refers to actions taken with no consideration of the legal harms that might result from a certain kind of speech.

Court Docket

Rules for sealing cases varies by jurisdiction; sometimes "secret dockets" exist that seal entire case files from the public.

Tort of Emotional Distress

Serious mental anguish

Main copyright protection purpose of Digital Millennium Copyright Act

The DMCA mainly shields Internet Service Providers and video-sharing sites from copyright that a copyright holder tells them is posted without permission via a takedown notice.

Tension between sixth and first amendment, and how courts balance them

The Sixth Amendment Guarantees the right to a fair, public, and speedy trial with impartial jurors and judges, access to all evidence, witnesses, and a lawyer, in the county or district where the crime occurs. However, this can conflict with freedom of the press, who get the right to attend, observe, and cover court cases. Sometimes, the press can corrupt the right to a fair trial with excessive coverage.

Constitutional Origins of Right to Privacy

The U.S. Constitution protects from governmental invasion of privacy: 1) Protection comes from the First (of thoughts, speech, and beliefs), Third (of the home), Fourth (of person and possessions), Fifth (freedom from self-incrimination), Ninth (unenumerated rights), and Fourteenth (to the states)

Prior restraint (and constitutionality)

The censorship of speech and/or the press by the government before such speech is published; the Court has said that this is the most

Chilling effect

The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right.

General rules regarding state public records laws

The fact the scope and exemptions to these laws vary by jurisdiction

1976 Government in Sunshine Act (why it passed)

The federal open meetings law that gives the public the right to attend such meetings, receive an agenda, and get minutes.

Summary judgment

The resolution of a legal dispute without a full trial when a judge determines that undisputed evidence is legally sufficient to render judgment

Problems with Sheppard rules

There are several problems with the Sheppard Rules: - Continuances can lead to dried up evidence or loss of witness memory - Sequestration is expensive, and studies show it creates juror negativity toward the defendant - Gag orders are violated often, and leaks can occur - Sometimes, it is unavoidable for jurors to hear or see coverage of the case.

Strict scrutiny

This legal principle applies in speech cases with content-based restrictions. It follows a three-part test: Is the law necessary? Does it advance a compelling government interest? Is the government using the least restrictive means to regulate the message?

Brandenberg test (Brandenberg v. Ohio (1969))

This legal test replaced the "clear and present danger" precedent established in Schenck v. U.S. regarding disruptive speech. Current law now says disruptive speech is only prohibited if 1. the speech is directed towards inciting immediate violence or illegal action and 2. is likely to produce the action.

Subpoena

a command for someone to appear or testify in court or to turn over evidence, such as notes or recordings, with penalties for noncompliance

Grand jury

a group summoned to hear the state's evidence in criminal cases and decide whether a crime was committed and whether charges should be filed; grand juries do not determine guilt

Promissory estoppel (confidential sources)

a legal doctrine requiring liability when a clear promise is made and relied on and injury results from the broken promise

Protective/Gag Order

a nonlegal term used to describe court restraining orders that prohibit publication or discussion of specific materials

Continuance

a postponement of a trial to a later time

Tort

a private or civil wrong for which a court can provide remedy in the form of damages

Fair use

a test courts use to determine whether using another's copyrighted material without permission is legal or infringement

Copyright

an exclusive legal right used to protect intellectual creations from unauthorized use

Voir Dire

literally, "to speak the truth"; the questioning of prospective jurors to assess their suitability

Sequester the Jury

the isolation of jurors to avoid prejudice from publicity in a sensational trial

Public domain

the sphere that contains works that don't have copyright protection, usually after the lifetime of creation plus 70 years (after 1978)

Probable cause

the standard of evidence needed for an arrest or to issue a search warrant. More than mere suspicion, it is a showing through reasonably trustworthy information that a crime has been or is being committed

Safe harbor (provision of DMCA)

the takedown notification provision of the DMCA that protects internet service providers and video-sharing websites from claims of infringement when they do not know about or profit from infringement and promptly comply with a takedown notice.

Copyright infringement

the unauthorized manufacture, sale or distribution of an item protected by copyright, patent or trademark law

affirm

to ratify, uphold or approve a lower court ruling

Overrule

to reverse the ruling of a lower court

Remand

to send back to the lower court for further action