COM 416 Media Law Study Guide Part 2
Public's "right to know" v. other priorities, like privacy, due process
"A democracy without an informed public is a contradiction" - Thomas Emerson. Richmond Newspapers v. Virginia: the point there is that the public's right to know how the state grants or withholds or otherwise adjudicates a citizen's life, liberty and pursuit of happiness in a criminal prosecution outweighs any one participant's interest in safeguarding his or her own privacy or, more generally, concerns that that public-ness might jeopardize 6th-, 5th- and 8th-amendment due process guarantees. Generally.
ISP immunity/Section 230 of the Communications Decency Act of 1996
(a common name for Title V of the Telecommunications Act of 1996) is a piece of Internet legislation. It *provides immunity from liability for providers and users of an interactive computer service who publish information provided by others.*
Times v. Sullivan (1964)
*Established actual malice standard* - has to be met before press reports about public officials can be considered defamation/libel o Actual malice: requires plaintiff to prove that publisher knew the statement was false or acted in reckless disregard to truth or falsity. · NY Times published about Alabama State Police (minor discrepancies) and MLK Jr. · Inaccurate criticism of police was seen as defamatory towards Sullivan (Public Safety Commissioner) o Times published a retraction for the Governor but not Sullivan · Times won because the court ruled AL Police/Sullivan were unable to provide proof that they were untrue or made with actual malice.
Open Government Act of 2007
*It strengthens public disclosure requirements concerning lobbying activity and funding*, places more restrictions on gifts for members of Congress and their staff, and provides for mandatory disclosure of earmarks in expenditure bills
Privacy law as tort law
- Appropriation - using another's name or likeness for advertising or other commercial purposes without permission - commercialization - right of publicity - Intrusion - intentionally intruding on another's solitude or seclusion - Publication of private facts - publicizing private, embarrassing information - False light - intentionally or recklessly publicizing false information a reasonable person would find highly offensive
Times v. U.S. (Pentagon Papers case) (and Washington Post v. U.S.)(1971)
- Pentagon Papers · Daniel Ellsburg took hidden secret story of the Vietnam war · Before this time the US believed and trusted the government à Not anymore · He believed the people deserved to know what really happened. · Newspapers had the right to publish because they did nothing illegal to obtain the information and wasn't a threat to National Security
Grid of FA protections by content (type of expression) and medium
- Political speech and print media: highest protection - Political speech in broadcasting and Advertising/Print: medium protection - Advertising and Broadcast (FCC): low protection
Gertz Test
- is this a public controversy/issue that will affect a lot of people? - Did the plaintiff participate voluntarily? -Was it trying to affect the outcome of the public controversy?
Commercial speech v. political speech (4 differences)
1) Political Speech is a compelling speech and there must be a compelling interest such as national security during war. · Commercial speech - substantial - could be protecting aesthetics of a community. 2) False political speech is allowed, false commercial speech is not. 3) Prior restraints allowed much more readily with commercial speech - porn, gambling, alcohol 4) Commercial speech can be compelled such as surgeon general warnings or side effects of medication. PS cannot be compelled.
Why don't reporters want to reveal their sources? (3 big reasons)
1) Trust is lost between reporter and source 2) Laziness on behalf of law enforcement to not do their own investigation 3) Harassment - courts will litigate the press to death and not allow them to be
Central Hudson V. Public Service Commission and the four-part Central Hudson Test (Commercial Speech Doctrine)
A case that developed a four-part test for determining when restrictions on commercial speech violated the First Amendment of the United States Constitution: Advertisement is eligible for 1st protection if 1. the speech concerns lawful activity and is it non-misleading 2. has substantial government interest 3. if the regulation directly advances the governmental interest asserted 4. the regulation must not be more extensive than is necessary to serve the governmental interest expressed in step 3
Shield law (state and federal)
A law that protects witnesses from revealing certain information, especially in court. Protects journalists from having to reveal confidential sources. 33 states with written ones. No federal shield law protects journalists involved in federal proceedings. State laws vary widely.
open records and open meetings (government in sunshine act)
Access to Meetings All states and the District of Columbia have laws ensuring some degree of public access to government meetings. Several states outline provisions for enforcement of open-meetings laws. The laws and penalties for violating them vary widely. Open meetings laws trigger public access whenever a quorum of a decision-making body deliberates public business.The laws permit attendance but do not require public participation. Most state laws require agencies to provide public notice of meetings and to record minutes.Most state laws define a meeting as either a physical gathering or a videoconference that allows members to interact in real time. o exemptions § privacy § student records § campus crime § medical records § drivers informationAccess to Federal and State Records: see FOIAState open-records laws apply to state agencies and departments, cities, school districts, and other state authorities. Laws vary from state to state and from federal laws
Fault thresholds
Actual malice - used when referring to public figures or officials, a reckless disregard for truth Negligence - used when referring to private individuals, the failure to exercise reasonable or ordinary care
What is an agency?
Any executive department, military department, Government Corporation, Government controlled corporation, or other establishment in the Executive brand of Government, including the Executive Office of the President, or any independent regulatory agency. Covered federal agencies, departments, commissions and government-controlled corporations include cabinet-level departments such as Defense, Homeland Security and Justice; regulatory agencies such as the Federal Communications Commission and the Securities and Exchange Commission; and NASA and the U.S. Postal Service.
Technological innovation and privacy
As technological development increases, privacy declines Timeline of Technology 1875 - telephone 1870s-80s, penny press, yellow journalism 1885, Kodak camera, snapshot photography (no longer needed subject's permission) - Warren & Brandeis, "The Right to Privacy," Harvard Law Review 1890 So privacy as a practical right is only as old as 1890 or shortly thereafter. And socially networked everything really re-frames 'reasonable expectations of privacy' for everyone, even those who don't really use that stuff." New technologies include thermal imaging, GPS, and cell phones, facial recognition, ubiquitous CCTV surveiling, beacons. United States v. Jones: The warrantless use of a tracking device on Jones's vehicle to monitor its movements on public streets violated Jones' Fourth Amendment rights Riley v. California: The evidence admitted at trial from Riley's cell phone discovered through a search that violated his Fourth Amendment right to be free from unreasonable searches· May a private employer look at an email message on an employee's computer? Courts have said the First Amendment does not bar companies from doing so because the company's interest in preventing illegal activity or unprofessional comments outweighs an employee's privacy interest
Access to Prisons
Can't make special privileges for media but everyone has a right to know ● Zemel v. Rusk ○ The constitutional right to speak and publish does not carry with it the unrestrained right to gather ● Saxbe v. Washington Post ○ Government doesn't have to provide to the media what isn't provided to the rest of the world. ● Houchins v. KQED ○ Inmate committed suicide ○ KQED wanted to go inside to document prison conditions ○ Sheriff Houchins said no but they could see a cell just not this cell. ○ Houchins won because of Saxbe v. Washington Post. ● Pell v. Procunier ○ News media interviews three black inmates ○ Media was making them celebs ○ Court found the prison could restrict media access without abridging the media's first amendment right
Tips for reporters promising sources confidentiality
Clarity is key Off the record, background, deep background.
Compelling v. substantial interest
Compelling interest: Political speech, National security, and during war. Substantial interest: Protecting aesthetics of a community. Commercial Speech.
Types of damages
Compensatory (actual) damages: proven, asks for millions ($), personal physical injury has occurred, price tag on harm. Special damages: $ when you lose your job, have to move due to damages, actual expenses due to the injury Compensatory and Special take little to prove. Easy punitive - a jury takes care of it, huge rewards, actual malice is the fault level even if private citizen
Richmond Newspapers v. Virginia (1980)
County judge cleared the courtroom of all reporters and spectators before the fourth trial of a man who was charged with killing a hotel manager Court said that there was a constitutional right to attend trials under the 1st Amendment - The Court said criminal trials are presumptively open and the First Amendment prohibits closing them without a full exploration of alternatives Said criminal trials could only be closed under "extraordinary circumstances" "Absent an overriding interest (in closing the trial) articulated in the (judge's) findings, the trial of a criminal case must be open to the public." The court ruled that it was a 1st Amendment right for people and press to attend; Established "A right to know" ● Open meetings because of sunshine law/open meeting law
The Six Hurdles of Libel Law
Defamation - proof that there are false communications about another person that damage that person's reputation or bring him or her into disrepute Identification - proof that the plaintiff was specifically the person whose reputation was harmed, that they were named Publication - proof that the statement was made public Re-publication - repeating the public libelous information, the republisher can be held just as responsible. Fault - the plaintiff must prove that the defendant was at fault in making public the allegedly false and defamatory statement of fact; public figures must prove actual malice (reckless disregard for truth) and private individuals must prove negligence (the failure to exercise reasonable or ordinary care); this is the highest hurdle Falsity - proof that the statement is false Injury - damages done by the libel. - compensatory injury - harm done - special injury - salary, move, therapy; financial harm - punitive injury - jury takes care of it, huge rewards, actual malice is the fault level even if private citizen
Open records and open meetings- why and who?
Federal (Sunshine Act - Fed meetings open) and State (Open meetings): requires that government meetings be open to the public. Why? 1. So the public can evaluate the expenditure of public funds 2. So the public can evaluate the efficient and proper functioning of its institutions. 3. To "foster confidence in government" Who? Non-profits if 1/3 or more of their funds come from tax dollars. Private companies to the extent they do business on behalf of a public office/agency.
FOIA (1966)
Freedom of Information Act; Records are open, not information. All records are open unless the record being sought falls under an exemption and can be held with an agency. Stated that a person has a right to obtain access to federal agency records.· Excludes White House, Congress, Federal Courts
Additional statutes denying disclosure of infor., such as Homeland Sec. Act
Homeland Security - To prevent terrorist attacks within the United States, reduce the vulnerability of the United States to terrorism, and minimize damage and assist in recovery for terrorist attacks that occur in the United States.Privacy Act of 1974 - Requires gov. agencies to use the info. in their files that contain individual, personal info. only for the reason it was collected. If FOIA mandates disclosure, if the two are in opposition, FOIA prevails.FERPA - Protects privacy of student education records.HIPPA- protects health records
Retraction statutes
In libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good-faith effort of admitting a mistake.
Branzburg v. Hayes (1972) (again)
In the U.S. Supreme Court case Branzburg v. Hayes, three reporters (for three different publications; three different cases bundled together for the Branzburg decision) claimed that the First Amendment provided a reporter's privilege - The Supreme Court disagreed but some justices argued in favor of a limited privilege for reporters to refuse to reveal sources. - Narrow decision; the various opinions do not make clear how to determine privilege beyond grand juries. - - The Court balanced the benefits of a reporter's privilege not to testify before a grand jury against the public interest in justice and favored the latter.
Bigelow v. Virginia (1975)
Jeffrey Bigelow published an ad in The Virginia Weekly for an abortion service in New York. At the time abortion was illegal in Virginia, but legal in New York. Bigelow was prosecuted for violating the Virginia law and he appealed Court overturned his conviction and said that the readers of the ad had a First Amendment right to receive the information. "Clear Public interest" Court emphasized that the service in question was not illegal where it was offered The message did not lose the First Amendment protection it would otherwise enjoy merely because it appeared in the form of an advertisement. There must be a compelling state interest to justify laws prohibiting any form of commercial speech that has a legitimate purpose
Press-Enterprise v. Riverside Superior Court test
Justices wrote a complicated test a judge must apply before closing a judicial proceeding or trial or limit access to court records: 1. The party seeking closure must *advance an overriding interest that is likely to be harmed if the proceeding or document is left open*. Identify the higher priority. 2. Whoever is seeking closure must demonstrate that there is "substantial probability" that this interest will be harmed if the proceeding or document is left open. *Show how the higher priority is in jeopardy.* 3. The trial court must consider *reasonable alternatives.* 4. If the judge determines closure is the only reasonable solution, closure must be *narrowly tailored to restrict no more access than is absolutely necessary.* Trial court must make adequate findings to support the closure. Justify your decision with evidence
Judicial process: Free press v. fair trial, First v. Sixth
Openness in court proceedings can have these possible benefits: - Improve the quality of testimony - Induce unknown witnesses to come forward with relevant testimony - Cause all trial participants to perform their duties more conscientiously - Generally give the public an opportunity to observe the judicial system Judges should presume that court process should be open and require the party seeking closure to show convincingly: - The probability that publicity would infringe on the right to a fair trial. - The inadequacy of alternatives to closure. - The effectiveness of closure. Presuming the Openness of Trials: NOT ABSOLUTE - Supreme Court decisions establish a qualified First Amendment right of public access to judicial proceedings when: - The proceeding traditionally has been open to the public. - Openness advances the proceeding's goals The experience and logic test holds that the closure of judicial proceedings should be a last resort used only when: - Essential - To avoid a substantial probability of harm - To some overriding interest where no effective alternative exists
Privacy as a negotiated right
Privacy is not absolute. "The Right to Privacy"
McIntyre v. Ohio Elections Commission (1995)
Protection of anonymous speech, Ohio struck down the Ohio law against anonymous political literature → Still have to prove 6 libel hurdles
Plaintiff Categories
Public officials - a person who holds a position of authority in the government and would be of interest to the public even if the controversy in question had not occurred; actual malice applies Public figures - those whose fame reaches widely and pervasively throughout society; actual malice applies Limited purpose public figures - one who voluntarily becomes a key figure in a particular controversy or one who has gained prominence in a particular, limited field, but whose celebrity status has not reached an-all encompassing level; actual malice applies only if it involves their field of expertise. Private individuals - the common person; must prove negligence
How do you use FOIA?
Request the records through telephone, email, or mail. Agencies have 20 working days to respond (not comply). Burden of proof is on the gov. to show why delay or non-disclosure is valid
Estes v. Texas (1965)
SC ruled that the First Amendment did not give the press the right to take photographs during a trial, but did say that at some point in the future when technology was not so obtrusive it might be allowed. Decision said: 1. Cameras interfere with jury - pressure due to exposure. 2. Interfere with witnesses - intimidating. 3. Impact on judge - burden of control. 4. Impact on defendant - harassment. ● USSC overturned the fraud conviction of petitioner Billy Sol Estes holding that his 14th due process rights had been violated by the publicity associated with the pretrial hearing, which had been carried live on both tv and radio
Richard Jewell and the Centennial Olympic Park bombing
Security guard. Vortex public figure. Becomes a person of interest. Put through a trial by the media. Defended himself in the public square and therefore surrendered private citizen status. Can never get it back. (got money for it)
Other realms of privacy
Solitude - The pristine state of privacy Intimacy - Mutual understanding Anonymity - To disappear/not be known Reserve - Control over your info., who you are, and how much you share.
USA Patriot Act (2001)
Strengthens the federal government's power to conduct surveillance, perform searches, and detain individuals in order to combat terrorism. ● Passed 2001 after 9/11 ● Enhanced surveillance procedures for gov't agencies ● All necessary to fight "war on terrorism" Gather foreign intelligence
Other libel defenses (other than the hurdles)
Summary judgment - The quick resolution of a legal dispute in which a judge summarily decides certain points and issues a judgment dismissing the case Consent - if consent is given to publish the content or material in question Statute of limitations - sets the maximum time the parties involved have to initiate legal proceedings from the date of an alleged offense, whether civil or criminal Jurisdiction - a court may dismiss a lawsuit on the grounds that the court lacks jurisdiction, traditionally in libel, the standard has been that wherever the material in question could be seen or heard, a court in any of those locales would have jurisdiction, a plaintiff can go "forum shopping" in search of the most suitable court for their case. Wire service defense - states that the accurate republication of a story provided by a reputable news agency does not constitute "actual malice" or "negligence" as a matter of law; cannot fact check everything they are getting from the wire services (McKinney v. Avery Journal is the case to first acknowledge this as a defense to libel) SLAPP designation and Rule 11 - (strategic lawsuit against public participation) a lawsuit whose purpose is to harass critics into silence, often to suppress those critics' First Amendment rights. Rule 11 is a term that triggers the motion to ask the court to consider a summary judgement on the basis to recognize a SLAPP lawsuit. The truth - an optional defense, different from falsity in that falsity must be cleared Absolute privilege - a complete exemption from liability for the speaking or publishing of defamatory words of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts. Qualified privilege (Fair Report) - when the media was reporting what was said, protects media from libel suits when reporting on government Neutral reportage - "don't shoot the messenger", no opinion given, a defense accepted in some jurisdictions that says that when an accusation is made by a responsible and prominent organization, reporting that accusation is protected by the First Amendment even when it turns out the accusation was false and libelous First Amendment opinion defense; fair comment and criticism - When something is opinion, it should be protected. Fact claim is treated differently; Milkovich v. Lorain Journal (1991) - fact claim, he lost.
Nebraska Press Assn. v. Stuart: 3 factors before prior restraint is allowed
Supreme Court classified gag orders on the media as the most serious and least tolerable prior restraint on First Amendment rights. - Gag orders on the media must meet the highest standard of review. - Supreme Court found a restraining order against two newspapers constitutional because it did not prevent them from publishing the same information if they obtained it outside of trial discovery. ● Whole family brutally murdered, mentally-ill neighbor confused ● Judge "gag-ed" everyone, you can't disobey a gag order ● Nebraska SC upheld most gag laws BUT 5 months later → SC ruled gag laws were unconstitutional ● 3 factors before Prior Restraint/Gag Order 1. Consider nature and extent of news coverage 2. Consider whether or not other measures would likely mitigate the unrestrained pre-trial publicity a. Sequester jury b. Move trial c. Carefully question jury d. Admonish jury e. Close courtroom 3. Consider effectiveness of a restrictive order in diminishing the effect of the pre-trial publicity
Cameras in courtrooms
Supreme Court: No cameras. - In Chandler v. Florida, the U.S. Supreme Court said the right of access to public trials does not include presumptive access for cameras. Circuit Courts: Civil trials at judges' discretion; barred from criminal proceedings by Federal Rule of Criminal Procedure 53 in criminal trial courts District Courts: Cameras (video coverage) in some proceedings in Second and Ninth Circuit trial courts Cameras in state courts: Allowed in some courtrooms some of the time. 20 states are extremely permissive, like Florida. In 9 states, judges may limit number and location of cameras, prohibit recording of jurors or vulnerable witnesses, or require pooled cameras. In 6 states, like Delaware and Illinois, courts are virtually closed to cameras. New tech: see page 20
Source confidentiality and Reporter's privilege
Tension: right to due process, having all info and available to prove one's guilt or innocence vs. reporters right to source confidentiality The right to not be compelled to testify or disclose sources and info in court; protecting sources is ethical, but does not always end well for reporter.
FTC Act of 1914
The Federal Trade Commission Act of 1914 established the Federal Trade Commission. The Act, signed into law by Woodrow Wilson in 1914, outlaws unfair methods of competition and outlaws unfair acts or practices that affect commerce
Privacy as a constitutional right (Fourth Amendment, Warren & Brandeis)
The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". 1890 Harvard Law Review, "Right to Privacy", by Brandeis and Warren - widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a "right to be let alone." Published in 1890, the article argued that human dignity required protecting individual privacy. Contended that common law should recognize privacy rights. "reasonable expectation of privacy"; what qualifies as reasonable is not defined.
publication of private facts
The defendant gave publicity to private facts about the plaintiff, the disclosure of which would be highly offensive to a reasonable person in the plaintiff's situation and the facts disclosed are not a matter of public concern. In libel, publication to a third party, someone other than the plaintiff and defendant, is sufficient. For the private facts tort, most courts require widespread publicity. Revealing intimate information in the media will meet the definition of publicity
intrusion
The defendant intentionally intruded, physically or otherwise (electronically), on the plaintiff's solitude/seclusion. The intrusion would be highly offensive to a reasonable person in the plaintiff's situation. Journalists should not assume people involved in a news event occurring on public property do not have a reasonable expectation of privacy. o Example: An automobile accident victim reasonably expected discussions with emergency personnel to be private even if medical treatment took place on the side of a public road. Defenses o Consent (for trespassing) o The Ninth Circuit Court of Appeals said a story's newsworthiness may reduce the intrusion's offensiveness
false light
The defendant portrayed the plaintiff in a false light that would be highly offensive to a reasonable person in the plaintiff's situation. Basically dead.*can't use terms from libel law for privacy laws (p.f., p.c., etc.) Defenses o libel defenses (if defendant proves all elements of her case) o ex: fair report priveledge o anti-SLAPP laws o truth
What are FOIAs exemptions?
The government can withhold records only if it is "reasonably foreseeable" that disclosure would harm one of the interest's protected by FOIA's exemptions" Exemptions include: -National Security -Internal agency rules and procedures (like break/shift procedures) -Disclosures forbidden by other statutes/ statutory exceptions -Trade secrets -Agency memoranda -Personal privacy (withholding of medical files) -Law enforcement records -Financial records -Geological Information
Who is a person?
U.S. citizens, member of media, citizens of foreign countries, persons acting in behalf of organizations, public interest groups
appropriation
Using a person's name, picture, likeness, voice, or identity (computer generated images) for commercial or trade purposes without permission. *Commercialization:* The appropriation tort used to protect people who want privacy; prohibits using another person's name or likeness for commercial purposes without permission. o Protects an individual's dignity o Personal right; can't survive death *The right of publicity:* The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission o Protects an individual's money o Property right; can survive death Defenses o CONSENT o newsworthiness o public use (if the info is already in the public) o FA o transformative use test: A test to determine whether the First Amendment protects a work that uses a person's name, picture, likeness, voice, or identity for artistic purposes. Changing the original to give it new meaning or a different message justifies First Amendment protectionPredominant use test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression
Free Flow of Information Act
a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process The Free Flow of Information Act would create a federal shield law, similar to those in almost all states, that would protect reporters from punishment for refusing to disclose their confidential sources in any federal criminal or civil case, unless those authorities meet strict criteria
Reno v. ACLU (1997)
a law that bans sending "indecent" material to minors over the Internet is unconstitutional because "indecent" is too vague and broad a term ● Online media is most like print 1. Constitution protected commercial expression 2. Activities and expression government can regulate
Open courts v. Guantanamo Bay
a presumptively closed court, and it can be that because Guantanamo Bay is off US soil and handles military tribunals. the New York Times piece by the reporter assigned to Guantanamo Bay describing how difficult it is for her to do her job. It's great journalism about journalism
Prior restraints
action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication Prior restraints/Gag orders in court room are not allowed
Greater New Orleans Broadcasting v. US
allowed advertising Eliminates Posadas precedent, couldn't ban casino ads like 44 liquor mart, could not prove this would advance government interest of less gambling
44 Liquormart v. Rhode Island
allowed advertising Overruled a state law which forbid advertising the prices of liquor (law did not meet Central Hudson test. Could not prove the ban would discourage drinking)
Rubin v. Coors
allowed advertising Supreme Court struck down a federal restriction against beer companies putting the alcohol content of the beer on their labels (to restrict strength wars) while combating "strength wars" may be a substantial interest, a ban on alcohol content did not achieve that goal as well as would alternatives "less intrusive to the First Amendment's protections for commercial speech Coors won.
Privacy Act of 1974
establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies. ● Agencies give the public notice that their systems of record by publication in fed. Register ● Prohibits disclosure of info without consent ● Gov't can only use "personally identifiable record" for purpose of was created and why info was gathered.
Electronic Freedom of Information Act of 1996
extended FOIA to computer records Group email = a meeting Established priorities for agencies to use when petitioned for information: Top priority: Life/safety at risk Middle: Requested by news media for the public's interest Low: Everyone else Requires agencies to do the following: Create a FOIA section on their websites. Provide electronic reading rooms filled with online copies of frequently sought documents. Provide expedited access to records when a compelling safety or public interest need for rapid access is demonstrated
Consumer culture
focuses on the spending of the customers money on material goods to attain a lifestyle in a capitalist economy. One country that has a large consumer culture is the United States of America. Prior to the 20th century, advertising largely was unregulated because companies/commerce in general were largely unregulated. Muckrakers of the 1900s led to expose of medicines and false claims -- tonics, elixirs, even Coca Cola, which began as a tonic. Regulation was the result, culminating with Congress creating the FTC with the FTC Act of 1914. At that time, the initiative was more to protect one company from others than to protect consumers or the people from false advertising. A consumer rights movement came much later in the 1960s, when the priority was policing unfair competition and monopolies.
Renwick v. News & Observer (1984)
i. Newspaper said the Dean denied 800 African Americans admission because of their race. ii. Dean sued with libel per se, but should have sued by libel per interpretation iii. How many others did he admit? Could make a difference. iv. Renwick might have won because the erroneous number of admitted people had no context
Three kinds of libel defamation
libel per se - defamatory as a matter of law, on its face and without further proof. ex: criminal or unethical activity, unprofessional behavior, immoral actions libel per quod - Libel by circumstance. The story becomes defamatory when you add something not in the story but in public knowledge. (ex: Eric Little) libel by interpretation - multiple readings/claims available and at least one of them is true (ex: Renwick)
What is a record?
neither FOIA or legislative history defines "record" All tangible and fixed items that (A) document government actions and (B) may be reproduced. Files, papers, videos, photographs, etc. that already exist.
Milkovich test
o Is the comment statement or opinion? Can you prove it true or false? (Is it fact?) o Does the defamatory comment focus on a subject of public interest? o Is there a factual basis for the comment? Is the opinion backed up with any evidence?
Macon Telegraph v. Board of Regents (UGA)
o newspaper successfully sued for access to University of Georgia Athletic Assn. financial records, including coaches' salaries, outside income. So both cases are about open records, access to government records and information where there is a public interest and/or where public money is being spent.
Privacy Protection Act of 1980
protects journalists and newsrooms from search by government officials, "work products", and "documentary materials, and a subpoena must be ordered by the court to gain access to the information. - Stemmed from Zurcher v. Stanford Daily
Georgia Open Meetings Act of 1965
provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Georgia. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. ● Two part Test ○ Meeting of a gov't body ○ Official business of policy of body to be discussed and/or acted upon ● Excluded by test → personal meetings/staff meets
Posadas case
restricted advertising In a 5-4 decision, the Supreme Court held that the Puerto Rico government (law) could restrict advertisement for casino gambling from being targeted to residents, even if the activity itself was legal and advertisement to tourists was permitted. The U.S. Supreme Court affirmed the Puerto Rico Supreme Court conclusion, as construed by the Puerto Rico Superior Court, that the Act and regulations do not facially violate the First Amendment, nor did it violate the due process or Equal Protection Clauses of the Fourteenth Amendment.
The single mistake rule
states that one mistake does not always mean that it is defamatory or has fault
Harris v. Cox Enterprises
the parent company of AJC and WSB successfully sued for access to Georgia Bureau of Investigation records of GBI's investigation of the Georgia State Patrol. So both cases are about open records, access to government records and information where there is a public interest and/or where public money is being spent.
Remedies at a judge's disposal
○ Change of venue - relocation of a trial ○ Change of venire - change of location from which potential jurors are drawn ○ Continuance - keep trial going ○ Severance - separate defendants charged with same crime separate trials ○ Voir dire - questioning jurors to assess their suitability ○ Sequestration - securing and quarantining jury ○ Judicial admonition - instructing jurors from bench can be very effective ○ New trial - last resort
Types of prejudicial press coverage
○ Confessions - Fifth Amendment protects persons against testifying against themselves. Confessions can be ruled inadmissible or retracted. ○ Prior criminal records - Ordinarily inadmissible. ○ Results of a lie detector - blood tests, ballistics tests, and other investigatory procedures. Sam Sheppard, for example, refused a lie detector test; it was reported in the media as a sign of guilt. ○ Character flaws or lifestyle - interviewing neighbors who say he beat his wife and kicked his dog or hangs out with mafia types, or spits on little children; rumors and hearsay. ○ Stories on potential witness - testimony, evidence, even the judge, particularly those that question credibility. ○ Speculation by officials - Sam Sheppard's mouthy detective, for example, who told a newspaper he thought Sheppard did it. ○ Sensational or inflammatory statements - like nicknaming a defendant, "Mad Dog" Irvin or "Monster in Chains." Even letters to the editor.
Advertising categories that CAN be banned
○ False advertising ○ Misleading ads ○ Ads for illegal goods and services ○ Time, place, manner restrictions and regulations are permitted if content-neutral and there is a substantial gov't interest in reg.
Exceptions to open courts/open trials
○ Jury hearings ○ victim/witness priority ○ Military ○ Out-of-court settlements
AP v. Walker (1967)
● AP reported that Walker led a protest because of the first black student at Missouri University, but he didn't actually lead it, just a part of it. ● Deadline pressure, reporter did see Walker at protest → mistake happened Had to prove actual malice because public figure. AP won. No actual malice because of the deadline pressure
Jesse Ventura v. Estate of Chris Kyle (author, Navy SEAL)
● American sniper case - Ventura was never named in the book, but you can tell its him. ● Identity and Falsity - defamed ● Clear identification was proven, had to prove actual malice because public figure, had to sue before Chris Kyle's death → Dead people can't sue Ventura won
Curtis Publishing v. Butts (1967)
● Butts (Athletic director of UGA) ● Curtis Pub. claims Butts conspired with AL football coach to fix a game ○ How long do you have to gather info before published? ○ Did they have a chance to rebut? ○ Did accusation raise flags? (Butts was a Public Figure) ● The magazine's reporters, however, failed to check the story of an unreliable source, who turned out to have been an insurance salesman in a phone booth, a man with a criminal record. They failed to check film of the game, failed to investigate whatsoever even though had plenty of time. The Court ruled proof of Actual malice. Butts sued for actual malice/fault and won Added Public Figures to actual malice
Burnett v. Enquirer (1981)
● Carol Burnett - host for a TV show ● First media loss at actual malice level ● Claimed she was eating peoples desserts around her and being drunk ● She sued and won because they lied. Intentionally actual malice
Chandler v. Florida (1980)
● Chandler was a Miami Cop convicted of robbery- big cameras in courtrooms ● After losing appeals, he said big cameras kept them from having a fair trial and lost. ○ Set the precedent for states choosing to allow cameras, even more so now because cameras are so small
Georgia Open Records Act of 1959
● Covering state, county and municipal ○ Public can evaluate the expenditure of public funds ○ Public can evaluate the "efficient and proper functioning of its institutions" ○ To "foster confidence in gov't" - Athens Observer v. Anderson (1980)
Dendrite Int'l v. Doe (2001) and the Dendrite test
● Dendrite, a purveyor of computer software used in pharmaceutical industry, brought a John Doe lawsuit against individuals who had anonymously posted criticism of the company on a Yahoo message board. ● Five prong test: an anonymous online speaker may be unmasked ○ Plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond ○ The plaintiff must specifically identify the poster's allegedly actionable statement ○ The complaint must set forth a prima facie [accepted as correct until proved otherwise] cause of action ○ Plaintiff must support each element with evidence ○ Must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented. → Provide additional protection in that they allow the court to balance the defendant's rights against the strength of the plaintiff's prima facie case
Dickerson v. US
● During questioning about a robbery, he was connected to, Dickerson made statements to authorities admitting that he was the getaway driver in a series of bank robberies. ● He was placed under arrest. Said he wasn't read his Miranda rights. ● He disobeyed a gag order, he won but was held in contempt for disobeying a gag order ● You can win your appeal but still be held in contempt of court by disobeying court order ● The court ruled that criminal suspects must be read their Miranda rights
Exemptions to Open Records Act
● Exempt by court order ● Exempt by requirements of another statutes, just as at the federal level; FERPA, Privacy Act ● medical records, student records, vehicle registration records
Government in Sunshine Act of 1976
● Federal meetings open law, state open meeting statute ● GA has most open because old state ● The act requires the 50 or so federal agencies, commissions and boards with some independent authority and with members appointed by the president to conduct their business in public. They must give public notice of their meetings and record decisions.
Gertz v. Welch (1983)
● Gertz was a civil rights attorney in Chicago hired by a family to sue a police officer who had killed the family's son, libeled/defamed by magazine, saying he was a "communist-fronter" because he chose to represent clients who were suing a law enforcement officer. ○ Public or private citizen? He wanted to be considered a private citizen since it had nothing to do with his work as an attorney. ● Justice Powell argued that the application of Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. Well known, in the news... but court ruled private citizen & only negligence. Gertz won. Gertz was ruled a limited purpose (vortex) public figure.
Hustler v. Falwell (1988)
● Hustler magazine published an ad that had Falwell going to an outhouse to make love to his mother ● Loses libel case because there is no way that's true, he claimed emotional distress, but since the piece was a parody, and no actual malice could be proven, he lost.
Sheppard v. Maxwell
● In Sheppard vs. Maxwell, the U.S. Supreme Court overturned the conviction of Dr. Sam Sheppard who was sentenced to life imprisonment for the death of his wife, because of an unfair trial - Supreme Court concluded that intense and prejudicial press coverage prevented a fair trial. - Media frenzy can disseminate prejudicial information, inflame the minds of jurors, and jeopardize trial fairness ● Sheppard claimed a 1 armed man came in his house and he wrestled with him, then Shepard's pregnant wife was killed ● He denied all lie detector test so assumed guilty. Media accused him of not cooperating ● In courtroom no rules → reporters on front row handling evidence ○ All first protection, no 5th ● Sheppard was accused in 1954, not arrested for a month ● 12 years later the Supreme court ruled his trial was not fair because of the impartial trial ● Judges must control their courtroom, including where everyone sits even media, excess pretrial press publicity can result in an unfair trial
Branzburg v. Hayes
● In the absence of shield laws, the right of a fair trial preempts the reporter's right to protect sources. ● 5 to 4 vote ● A reporter wrote a story which appeared in a louisville paper. He was called to testify before state grand juries which were investigating drug crimes. He refused. ● Loss but viewed as win for future cases. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the 1st Amend. ● The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court. ● Buffet is open metaphor. Newsman have no constitutional access to the scenes of crime or disaster when the general public is excluded. ● Going forward means: ○ Probable cause - info directly and clearly relevant to specific violation of law ○ Evidence cannot be obtained any other way ○ A compelling and overriding interest in the info or in central to cause ● Justice Byron White wrote, "without some protection for seeking out news, freedom of the press could be eviscerated." In the U.S. Supreme Court case Branzburg v. Hayes, three reporters (for three different publications; three different cases bundled together for the Branzburg decision) claimed that the First Amendment provided a reporter's privilege The Supreme Court disagreed but some justices argued in favor of a limited privilege for reporters to refuse to reveal sources. Narrow decision; the various opinions do not make clear how to determine privilege beyond grand juries The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.Buffet is open metaphor. Newsman have no constitutional access to the scenes of crime or disaster when the general public is excluded.In the U.S. Supreme Court case
Vincent Foster death scene photos
● Lawyer thought death was suspicious and wanted scene photos -- Suicide ● Privacy because lawyer thought suspicious and wanted photos of death BUT family didn't want photos of Foster in public ● Wasn't a "public concern" or needed to be published
Lohrenz v. Donnelly (2003)
● Lohrenz, a female combat pilot, top of her class ● Lohrenz was aware of the controversy for women in combat roles when she chose her career path, as well as of the likelihood that her role as one of two female combat pilots would place her at the center of the controversy. ● Lohrenz was defamed by Donnelly, and claimed that the defamation caused her to lose her position as a pilot - Lohrenz was deemed a public figure because she was a pioneer and the Court ruled that she failed to prove actual malice done by Donnelly.
Firestone v. Time 1972
● Mary Firestone filed for divorce from her husband, an heir to the Firestone Tires fortune ● Time Magazine printed an article reporting that Firestone's "extreme cruelty and adultery" caused the divorce. Firestone requested a retraction, but Time refused. Sued for Libel. ● Mary got divorced, but not for that. ● Justice Rehnquist wrote the majority opinion vacating the lower judgment and remanding It was determined that she was not a public figure so her private life was hers and no one else. The Supreme Court held that the actual malice standard for media reports on public figures did not apply to this case, and she won
Milkovich v. Lorain Journal (1990)
● Milkovich was a wrestling coach who was called out for lying under oath about fighting at a wrestling match. → Used the Ollman test Justice William Rehnquist said if something can be proven true or false, that is not opinion, it rejected the argument that a separate opinion privilege existed against libel. The court ruled in favor of Lorain Journal because Milkovich could not prove actual malice
David Bar Katz v. National Enquirer (2014)
● New York Broadway playwright who was really good friends with a man who was killed. ● He was there the night his friend died. Called 9/11 ● The wrong David Katz was Interviewed by the National Enquirer and they ran the story ● Libel - because it was all false. Article was withdrawn.
Nike v. Kasky (2003)
● Nike accused of employing illegal labor practices ● Released multiple press releases on how good their labor practices were ● Commercial or political? ● Press release need source details ● Cali supreme court ruled as commercial speech and Nike could be punished ● USSC did not rule because activist was not personally affected or harmed by Nike ● Settled out of court. No answer yet!
Ollman v. Evans (1984) and the Ollman Test
● Offered job at UMD, Evans wrote article "Marxist professors intentions" ● Ollman claimed the column led to the withdrawal of job offer, so he sued Evans ● Justice Kenneth Starr read the majority ruling favoring Evans and created the Ollman Test ● Ollman Test: ○ Can a statement be proven true/false? (Verifiability) ○ What is the common/ordinary meaning of words? (Common Meaning) ○ What is the journalistic context of the remark? (Journalistic Context) ○ What is the social context of words? (Social Context)
Fourth Amendment
● Prohibits unreasonable search and seizures ● Requires warrant to be judicially sanctioned and supported by probable cause.
Dale Earnhardt death scene photos
● Public figure ● Public concern because it dealt with the model and make of his race car Overruled in the interests of privacy for the family, who motioned to deny access to the photos.
Valentine v. Christensen (1942)
● Ruled that advertising (commercial expression) is not protected by the First Amendment, no reason to tolerate false ads ○ Less important than political speech ○ Advertisers less likely to be chilled (suppressed of penalization at the interests of an individual or group) ○ Commercial speech easier to verify (Times v. Sullivan = a little protection)
Salameh trial after WTC bombing
● Show the pendulum for gagging ● Ridiculous for punishment, can't do that - he gagged everyone
Virginia State Board of Pharmacy v. Virginia Citizens (1976)
● USSC replaces Valentine and sets precedent ● The VA Citizens challenged a VA statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices ● Question arose if advertising prescription drug prices by licensed pharmacists a violation of commercial speech under is the 1st. → yes ● Court ruled the 1st Amend. Protects willing speakers and willing listeners equally. ● Harry Blackmon, "so long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions." ● Did not give commercial speech a blanket of 1st protection. Some categories still banned: ○ False advertising ○ Misleading ads ○ Ads for illegal goods and services ○ Time, place, manner restrictions and regulations are permitted if content-neutral and there is a substantial gov't interest in reg.
