JL MC 460 Final Exam

In Blackstone's time, one of the principles of libel law was, "The greater the truth, the greater the libel." American law takes the opposite position and provides that only false statements can be libelous. Why?

Because if we were saying that true statement were false, it would severely suppress speech and scare people from expressing their true opinions (such as newspapers stating true facts)

Cohen v. California

First amendment protected words on his jacket --arrested for disturbing the peace when he wore a jacket that said "f*** the draft"

Besides a name, in what ways can a potential libel plaintiff be identified?

Identified by a reasonable person in position to know whom the statement is about, must have more than one person that recognized that plaintiff in that position, not identified by people who don't know the plaintiff

What are the three ways a libel plaintiff can prove loss of reputation?

Lower plaintiff in estimation of community or deter third persons from associating or dealing with him

Trashcan: incitement of imminent law-breaking

Modern Incitement Test (Brandeburg) --Advocacy: not abstract, philosophical discussion) --Directed toward: with intent inciting or producing --Imminent lawless action --And likely to succeed

Highly offensive" does not mean the plaintiff was highly offended. How is this concept measured?

Must be highly offensive to a reasonable person --Distributing nude photos --Disclosing a relative's autosopy photos --Disclosing confidential medical data --Identifying rape victims (if you did NOT get it from public records) --Disclosing a person's debts

United States v. Alvarez

Not unconstitutional, false speech with no threat --court ruled that it was not unconstitutional to falsely claim a military medal, though it was false speech there was no threat --overturned the Stolen Valor Act (a federal law that criminalized false statements about having a military medal)

Invasion of privacy by disclosure of private facts

Occurs only if: information is actually private Conduct must be: highly offensive Publicity required: yes Defenses: public records

Invasion of privacy by appropriation of name or likeness

Occurs only if: motive is money Conduct must be: without consent Publicity required: yes Defenses: written consent, news value

Invasion of privacy by intrusion upon seclusion

Occurs only if: plaintiff reasonably expected privacy Conduct must be: highly offensive Publicity required: no Defenses: consent

Invasion of privacy by placement in a false light

Occurs only: plaintiff can show actual malice Conduct must be: highly offensive Publicity required: yes Defenses: usually same as defamation

MGM Studios v. Grokster

Peer-to-peer file sharing companies could be sued for inducing copyright infringement for acts taken in the course of marketing file sharing software

New York Times v. United States

Pentagon Papers --prior restraint held unconstitutional --Pentagon Papers published without risk of gov't censorship or punishment

Reno v. ACLU

--ACLU creates a law that bans the sending of "indecent" materials to minors over the internet --Ruled unconstitutional because indecent is too broad and vague a term --Internet can't be regulated as radio or TV because it isn't as scarce as those licenses are

Requisites and defenses for each civil tort --Why is false light the most controversial? --Why is appropriation the most widely accepted?

--Appropriation is all about economic loss (more of a business tort, don't have to deal with something as subjective as emotions) --Courts get more skeptical when cases deal with "you make me feel bad" aka false light

Derivative works vs. Transformative works

--Derivative: adapting a work or making it so close to the original --Transformative: Fuse enough original authorship within it that it creates another work. Can't stop people from making transformative works

--If you're working for someone else, what are some things you might do to make sure your employer is responsible for anything libelous you publish? ---If you're working for yourself, what protections can you obtain?

--Don't assume anyone is a public figure --Be alert to potential libel --Don't be negligent --Raise objections to supervisors/colleagues --Document everything you do --Don't count on employer to take the fall ---require your clients to accept liability ---consider buying defamation insurance

Expression vs. Facts

--Expression: Protected under copyright. "Original works of authorship fixed in a tangible medium of expression" --Facts: Copyright does not protect facts

Although all three torts involve a statement by the defendant about the plaintiff, what are the differences among false light, disclosure of private facts, and libel?

--False light is almost identical to defamation. Many courts just say sue for defamation and don't buy the second argument to false light. --If suing for libel, at a minimum must prove negligence --Must prove actual malice if you're a public figure

The rule against prior restraints

--Gov't suppression of material --"Action taken by the gov't to prohibit publication of a specific document or text before it is distributed to public; requires gov't approval before publication" --Exceptions allowed by Near v. Minnesota: ----obstruction of military recruiting ----troop locations, numbers, movements ----obscenity ----incitement to violence/overthrowing gov't

Feist Publications v. Rural Telephone Service Co.

--Information alone without a minimum of original creativity cannot be protected by copyright --Feist copied information from Rural's telephone listings to include in its own --Information contained in Rural's phone directory was not copyrightable and therefore no infringement existed

Infringement vs. Parody

--Infringement: Use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder --Parody: Taking work and fusing original work with it (transformative)

Kirtsaeng v. John Wiley & Sons

--Kirtsaeng buys books in Thailand and sells them for profit in the United States --Sued by Wiley & Sons --Kirtsaeng's sale of lawfully-made copies purchased overseas was protected by the first-sale doctrine --"Lawfully made under this title" is not limited by geography

Milkovich v. Lorain Journal Co.

--Milkovich filed suit; the suggestion that he had lied had defamed him --Milkovich ruled a private figure --Court suggested constitutional safeguards that had already been erected were enough to protect statements of opinion from being actionable

FOIA contains nine categories of exemptions. In general, what kinds of information do these cover? (The most important state exemptions usually are similar.)

--National security --Internal agency rules --Records exempted by statute --Trade secrets --Internal memos and decision-making --Personal privacy of a third party --Law enforcement investigations --Financial records --Geologic information

Oolman v. Evans

--Ollman offered a job at U of Maryland --Evans writes a column in the newspaper entitled the "Marxist professor's intentions" --Ollman claimed that the column let to the withdrawal of the job offer --no evidence supporting that Evan's conclusions were false or defamatory

Community for Creative Non-Violence v. Reid

--Reid makes statute but CCNV owns the copyright --Work 'made for hire' --Copyright ownership of works for hire belongs to the owner or other person for whom the work is prepared unless there is a written agreement to the contrary

Recycling bin: broadcast regulations

--Requirements: US citizen, good moral character, technical expertise, financing, can't own too many stations --Prohibited: hoaxes, lottery results --Required: station identification every hour, payment for content, terms of station content

--When may a journalist refuse to disclose a source's identity or other information in court? --Where does a journalist get this right? Does this right exist in Iowa?

--Shield laws! First amendment has no relevance here --no constitutional privilege over to not testify from Constitution. Get it from rule of court's jurisdiction through common law and procedural rules. Courts can recognize such privileges. --Mostly such reporter's privilege is through state statute (does exist in Iowa) --jurisdictions also outline protection for such privileges

--How can extensive media coverage before a trial interfere with a defendant's Sixth Amendment rights? --What can a court do, within the First Amendment, to prevent this? --What must the judge find to justify closing the court and holding the trial in secret? --If the judge wants to allow journalists to attend the trial but prohibit them from reporting on it, what conditions must the judge satisfy? --In today's media, can a judge ever meet these standards?

--Sixth Amendment: guarantees a criminal defendant's rights to a fair and just trial; can conflict with a journalist's desire to cover the proceedings --Find substantial threat to defendant's sixth amendment rights --Find the prior restraint will eliminate the threat --Find that only this restraint will suffice --Narrowest restriction possible

Destroying a work's value vs. Usurping (stealing) its Value

--To be unfair, must usurp the market --Destroying the market: free speech

--How does the criminal offense of trespassing differ from intrusion? --How might I commit one without committing the other?

--Trespassing: typically a criminal offense. Go through criminal system, prosecuted by government, penalties can include jail time. Defined by the property line. --Intrusion: civil suit. One I bring myself to the injury that was done to me personally rather than the violation of society's respect for private property. Issue is NOT the property line, it's the reasonable expectation of privacy (like intruding on someone's private home)

Elonis v. United States

--Whether a conviction of threatening another person over interstate lines requires proof of subjective intent to threaten or whether it is enough to show that a "reasonable person" would regard the statement as threatening --First time the court had heard a case considering true threats and the limits of speech on social media

Socrates // Plato // Scanlon view on Respecting Individual Autonomy

--a free mind is resolved to speak against authority and to determine its own truth --Scanlon: free expression is inseparable as seeing oneself as autonomous

--What is an executive session? --What are some examples of topics that justify entering executive session? --Under a typical meetings statute, what must a public body do before entering executive session? --What important act may not be performed in an executive session?

--a part of an open meeting that is closed to the public typically to discuss privileged information or matters of private nature --personnel issues, pending litigation, threats to public facilities or security, labor negotiations, real estate dealings --requires supermajority vote, specific legal authority must be announced --Final action cannot be in an executive session (it must be an open meeting only); cannot vote in an executive session

FCC v. Pacifica Foundation

--a radio or TV station can be punished for broadcasting indecent material --based on the theory that children were present during broadcasts

Milton // Mill view on Discovering Truth

--best way to suppress lies is not to censor, its to let every idea in the public and eventually the truth will prevail --highly criticized as being naive

--If you discover someone else is using your copyrighted work without your permission, what should you do? --Very generally, how quickly should you do it?

--cease and desist order --promptly and in the cease and desist order, include a time frame, usually 15-30 days

United States v. O'Brien

--convicted for uncommunicative impact of his conduct --if everyone in America goes out and burns their draft card, it affects the gov't and their ability to fight the war

Tocqueville's view on Facilitating Democratic Decision-Making

--democracy suppresses individual thought and expression through "tyranny of the majority" --people don't really get to express their thoughts because the majority tells them what to think

FCC v. Fox Television Stations

--fleeting expletives at Billboard Music Awards --FCC cannot punish broadcast stations because their rules are vague

Meiklejohn's view on Facilitating Democratic Decision-Making

--free expression is necessary for informed citizens to make decisions in a democracy

Hobbes' view on Providing an Alternative to Violence

--government must silence inflammatory ideas to protect the public from violence --without freedom of the pen, the subject can claim no rights against the ruler

Texas v. Johnson

--held as protected speech --restricted because of the content of the message he conveyed --if everyone in America goes and burns a flag, nothing will happen to the gov't

Miller v. California

--knowingly distributed obscene materials --obscenity has to be defined - The Miller Test --must be community wide

Trashcan: obscenity

--lacks SLAPS value --Patently offensive --appeals to prurient interest

Richmond Newspapers, Inc. v. Virginia

--landmark case for courtroom access rights --criminal trials must remain open to the public and press under the First and Sixth amendments

--In general, federal and state statutes allow the public to attend meetings of public (or governmental) bodies (or entities). --What does each of those terms mean? --What kinds of groups or events would such a statute cover?

--meetings of public: gathering in person or by electronic means, formal or informal, of a majority of the members of a gov't body where there's deliberation. open session = open meeting --governmental bodies: a board, council, commission or other governing body expressly created by the statutes of this state by executive order

Nebraska Press Assn. v. Stuart

--must find threat to a fail trial --judge makes gag order, albeit as narrow as possible --the gag order essentially says press and public are allowed at trial, however they can't publish or record anything happening in open court --can't reasonably think everyone in court would follow that gag order --makes gag order situation difficult for both sides

So, if I write a dark but not touching vampire-human-werewolf love story called Late Afternoon but Not Quite Dark, can I collect damages from anybody else who writes a vampire story? Anybody else who writes a love story? What DOESN'T my copyright include

--no --no --does not include: First American sale or transformative works (works with their own originality)

--From whom must I obtain permission to gather news, conduct interviews, take pictures, etc., on private property? --Can the police or other emergency personnel give me valid permission to enter private property? --How can my presence on private property become trespassing even if I had valid permission to come onto the property?

--owner --no --if you go out of the scope of the consent, if you go out of purpose the custom serves (like if you went to someone's house to fix their sink but then you were snooping in their computer room), if you don't leave when explicitly told to, if you go out of the time the statute allows

So, it is not necessary to register a work or put a copyright notice on it. Why are these still good ideas?

--owners want to have the facts of their copyright on public record and have a certificate of registration --registered works may be eligible for statutory damages and attorney's fees in successful litigation --if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law

What broad policy vision underlies U.S. copyright law? How does this vision help to explain why copyright law has a fair use exception?

--promote creative work by rewarding it --because the U.S. has a utilitarian philosophy, so the U.S. wants people to create songs, books, art, etc. so other people can have fair use to use it. Authors are the means in the U.S., not the ends.

Fair use

--purpose and character of use --is this for profit --what was the original work; what is the nature of that original copyrighted work --the message; did you take the heart of the original

--What four factors will a court apply to determine whether unauthorized use of a copyrighted work is fair? --How heavily does the defendant's desire to make money factor into the decision?

--purpose and character of use, especially if it was for profit --Nature of the copyrighted work, factual info or creative/expressive --Amount and substantiality of the portion used --Effect on the potential market for the original ----To be unfair: Must usurp the market ----It's still fair even if the market gets destroyed, because that is protected speech

Intentional infliction of severe emotional distress (IIED) --The plaintiff's conduct must be intentional or _________. --How high is the bar for "extreme and outrageous" conduct? --What additional, difficult requisite must a plaintiff prove if the plaintiff is a public figure or the case involves speech on a "matter of public concern"?

--recklessly --so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community --No IIED for public figures unless there is a false statement published with actual malice

What things can a copyright owner prevent anyone else from doing with their work?

--reproducing a work --unlawful copying (but not if devices also have legitimate non-infringing uses) --publicly displaying or performing a work --controlling distribution and "first sale only" ----protects sale of used books ----NOT: First American sale: can occur outside US if copy sold was "lawfully made" in that country --adapting a work or making derivative works ----works that derive their value from the original

Red Lion Broadcasting v. FCC

--requires a station to offer balanced/fair discussion of issues --FCC's fairness doctrine was consistent with the First Amendment and doesn't violate it --enhances free speech

--While the media have no special right of access to prisons (they're nonpublic forums), journalists do have a constitutional right of access to criminal trial. Why the difference? --Why are criminal trials the one context in which the Supreme Court has recognized a First Amendment right to gather news? --In addition to the trial itself, what proceedings does the public typically have a right to attend?

--right of access to criminal trial is the 6th amendment, no federal amendment or statute giving this right to prisons --prisons do not have centuries of experience to base set-up and function after --prisons are nonpublic forums --viewpoint neutral in prisons (prison library can have any religious book in it) ----As long as prisons is viewpoint neutral, gov't just needs rational reason to not let people in. Gov't usually uses safety concerns as reasoning

--What kinds of media content producers often are excluded from this protection? --Why is promising not to reveal a source's identity a risky pledge to make?

--the farther you get away from traditional newspaper/photographer, less likely to get protection --a freelancer, student journalist, or intern often do not get shield law protections --same as bloggers and citizen journalists --anybody who differs from institutional press (has slant to their journalistic style)

Eldred v. Ashcroft

--upholds the Sonny Bono Copyright Term Extension Act --copyright terms extended by an additional 20 years

--An employee's work for the employer is called what, for copyright purposes? --Who owns that copyright? --Why is this a gray area of law for contractors and freelancers? --What can a freelancer do to guard against losing copyrights to the client?

--work for hire --employer or client owns the copyrights --copyright is technically owned by the client or owner not the freelancer or contractor despite the freelancer or contractor creating the creative works --establish a cause in the contract explicitly stating the way the freelancer wants the copyright to be handled

-What is the difference between an assertion of fact and a statement of opinion? --What do Ollman v. Evans and Milkovich v. Lorain Journal Co. tell us are factors that should beconsidered in drawing the line?

-Assertion of fact:a statement is verifiable; statement can be proved true or false -Statement of opinion: indirectly linked to true/false; cannot be proved true or false --Ollman: assertions of fact and assertions of opinion do not overlap but the two can become really, really close --Milkovich: assertions of fact can easily be libelous and assertions of opinion usually aren't libelous but the two can overlap to form "opinions that imply facts"

-What do federal criminal statutes and the FCC "Phone Rule" say about recording conversations? --Is Iowa a "one-party consent" or an "all-party consent" state? --Which rule do most states follow?

-May not record interviews or phone calls for broadcast unless the subject consents in advance -You need not air the audio, just have to record without consent --One-party consent --One, 40 states are one

-What two crucial terms will be defined in FOIA or a state equivalent that tell you what information you may acquire, and from whom? --If a FOIA request meets these conditions, what must the federal government do within 20 days?

-the agency and the agency records -if the request is to an agency record and the request does not require creating a new record, the agency must respond with 20 days and the records must be released unless an exemption applies --respond to the FOIA request

What categories of facts can or cannot be grounds for a private-facts case?

CAN: --mental/emotional/physical health --love/sexual orientation --contraseption decision --family relationships --victim in sexual crime --religious, financial, academic records CANNOT: -Thus, you cannot be held liable for discussing or republishing information about someone that is already publicly available (ex: found on the internet or in the newspaper) -In addition, you cannot be held liable for giving publicity to a matter that the plaintiff leaves open to the public eye

Luther's view on Limiting Political and Religious Authorities

Christian's may and must disobey secular rulers who impose censorship in religion

When does the plaintiff not have to prove a dollar value for his or her loss of reputation?

Libel per se - it's libel in itself and the statement is so clearly damaging to a reputation that you don't have to further prove it other than to say the statement was made

ABC v. Aereo

Service provided by Aereo allowed subscribers to view live and time-shifted streams of over-the-air television on internet-connection devices

What advantages are there in trademark law if your company's name is a nonsense word you just made up?

When your company's name is "fanciful" (completely made up), the trademark is stronger than any other types of marks, because the mark is the most distinct. The other types of marks (generic, descriptive, and suggestive), are not a distinct, so they do not deserve as strong as trademark than a completely unique word

--You're going to a meeting of a public body notorious for entering executive session on flimsy pretexts or with no stated reason. What should you do beforehand or be prepared to do at the meeting?

ask public body or its attorney for justification, follow the public body's complaint procedure, get a lawyer to call or send a letter. Object and ask that the objection be included in the minutes, remind members of open meeting laws and ask for specific justification

Recycling bin: Central Hudson Test

commercial speech can be prohibited if false, misleading, or related to unlawful activity --all other commercial speech restrictions must be justified by substantial gov't interest, directly advance that interest, and be narrowly tailored to restrict as little speech as reasonably possible

Public domain

copyright has expired or there never was copyright in the first place

Press-Enterprise Co. v. Superior Court

court proceedings are open to the public and press if logic/experience dictate openness --strict scrutiny is applied to criminal court context; if the trial judge wants to close a preceding they must have the utmost highest of reason

King's view on Providing an Alternative to Violence

disruptive free expression heads off the greater disruption of violence between social groups

Brown v. Entertainment Merchants Assn.

deemed not obscene, protected by the First Amendment --violent video games --First Amendment bars a state from restricting the sale of games --They're violent but do not appeal to prurient interest

Which two torts, other than defamation, require plaintiffs to prove actual malice and thus are prevented from being easier alternatives to libel?

false light, IIED

Central Hudson Gas & Electric v. Public Service Commission

electricity promotion violated freedom of speech because it restricted promotional ads regardless of the effect on electrical use

Locke's view on Limiting Political and Religious Authorities

government officials have no authority to command beliefs or punish nonconformity

Trashcan: fighting words

inflict injury to tend to incite an immediate breach of the peace --must be an ambiguous invitation to a brawl --usually communicated face to face

Standard of review for content-neutral restriction

intermediate scrutiny -gov't interest: important, substantial -speech restriction: narrowly tailored to the interest

Can the government base the decision to release or withhold information on why the requester wants it?

no, the purpose for the request has no bearing on whether the information must be disclosed or not

What constitutes publication for libel purposes?

one third party bears or reads it or communication through a mass medium

Under the current Copyright Act, copyright attaches automatically to any _________ work of _________ that is ________ in a tangible medium of expression.

original; authorship; fixed

Brandenburg v. Ohio

protected by first amendment --member of KKK invited people to rally --no violence resulted from his speech --conviction overturned --modern incitement test

A libel plaintiff must prove all six requisites

publication, identification, loss of reputation, factuality, falsity, and legal fault (either negligence or actual malice, depending on who the plaintiff is)

Standard of review for generally applicable laws

rational bias -gov't interest: permissible -speech restriction: rationally related to the interest

Branzburg v. Hayes

requiring reporters to disclose confidential information because it served a "compelling" and "paramount" state interest and did not violate the First Amendment

Trashcan: True threats of violence

threats communicated to the other party that is a threat of serious violence meaning death or serious bodily injury; clear intent of causing listeners to fear for their safety --the target of the threat has to feel "reasonably" threatened

Recycling bin: commercial speech

speech that "does no more than propose a commercial transaction"

Trashcan: speech that perpetrates a crime or fraud

speech that encourages breaking the law

Near v. Minnesota

states can't ban offensive publication --a reporter published a paper attacking local officials --states cannot ban offensive publication - freedom of speech and press --high court said it was a classic case or prior restraint --prior restraint held unconsitutional

Standard of review for content-based restriction

strict scrutiny -gov't interest: compelling, of highest magnitude -speech restriction: least restrictive way to protect the interest