Mass Comm Law - Exam 3
What is a shield law
It is a law that protects witnesses (individuals) from revealing certain information, especially in court.
Shone v Shone (case problem)
freelance authors were often denied protection that journalists have, you are investigating and doing a lot of interviews with intentin to disseminate the info
9 - Associated Press v US Department of Defense (2006)
identifying information of detainees family members contained in personal letters to two detainees submitted to an AP has failed to show how the public interest would be served by disclosure of this information. We conclude that the identifying information is exempt from disclosure under the FOIA privacy exemptions.
11 - US v Burr (1807)
impartial juror was one free from the dominant influence of knowledge acquired outside the courtroom, free from strong and deep impressions that close the mind.
12 - Press Enterprise v Riverside Superior Court (1986)
(PREss = PREtrial hearings) A nurse was accused of murdering 12 patients with lethal doses of heart medication. The nurse moved to exclude the public from the trial. Press Enterprise requested a transcript of the trial but were denied. Justice John Paul Stevens argued that the right to fair trial was more important than the right of the public to access this.
State Open-meeting statues
(on any level) generally requires that teh government hold meetings, deliberate, and make decisions in the open. The laws also generally require that the public is given advanced notice of upcoming meetings as well as the subject matter of the meeting (transparency)
FERPA (Family Educational Rights and Privacy Act)
- Directly related to the student - Any student 18 or older - Controls student records and gives student control, if there is another statute that prevents the info from coming out would be exemption 3 under FOIA but cant be under FERPA
Two purposes of Contempt power
- a court can use the contempt power to protect the rights of a litigant in a legal dispute - the contempt power can be used to vindicate the law, the authority of the court or the power of the judge
The Madden Test
- engaging in investigation - gathers news - possesses the news with intent to disseminate to the public
Two constitutional rights clashing in controversy
1 v 6
favish test
1) Must show public interest in the info is significant 2) Must show info is likely to advance that public interest.
Two types of Contempt Power
1. Civil (to coarse, no sentencing process, judge tells you what you have to do) 2. Criminal (after the fact punishment, in re special proceedings)
Prejudicial Crime Reporting
1. Confessions 2. defendants performance on a test 3. defendants past criminal record / convict 4. question the credibility of witnesses 5. defendants character associates and personality 6. Stories that tend to inflame the public mood against the defendant 7. Stories that suggest, imply or flatly declare that the defendant is guilty
3-element test (P351)
1. If the record is either created or obtained by an agency, and the record is under agency control at the time of the FOIA request, it is very likely an agency record 2. IF the agency has created the document but does not possess or control it, it is not an agency record 3. if the agency merely possess the document but has not created it, it might be an agency record, or it might not
Privacy Act of 1974 two basic thrusts
1. It attempts to check the misuse of personal data obtained by federal government, the quantity of which has, of course, reached staggering proportions 2. Is intended to provide access for individuals to records about themselves that are held by federal agencies
9 Exemptions to FOIA
1. National Security 2. Housekeeping materials 3. Material exempted by statute 4. Trade Secrets 5. Working papers/lawyer-client privileged materials 6. Personal privacy laws 7. Law enforcement records 8. Financial institution materials 9. Geological data
Richmond Newspaper Test (condensed)
1. Overriding interest 2. Substantial Probability 3. Reasonable Alternatives (sheppard) 4. Narrowly Tailored 5. Adequate Findings
Prongs needed to be met before journalists needs to give up info
1. RELEVANT - is there probable cause to believe the reporter has info relevant to the specific violation of the law (ie to the charges - the reason for the trial) 2. UNOBTAINABLE - has the party seeking the info (prosecution or defense) tried to obtain it in other ways? (ie is the reporter the last resort, no other source has the info) 3. CRITICAL - does the party seeking teh info (prosecution or defense) have an overriding and compelling intere? (ie is the information critical to the party legal argument? ie does the party have no case without the info)
Tiers of Public information
1. Super Public (tier 1): must always be disclosed, all government records are presumed to be public unless otherwise there is statute that prevents it (Voter registration record) 2. Generally public: normally public but there are many conditions/exemptions to shut it down sometimes they might not be released
Richmond Newspaper Test (explained)
1. The party seeking closure must advance an overriding interest that is likely to be harmed if the proceeding or document is open 2. Whoever seeks the closure must demonstrate that there is a substantial probability that this interest will be harmed if the proceeding or document remains open 3. The trial court must consider Reasonable Alternatives (Sheppard) to closure 4. The judge decides that closure is the only reasonable solution, the closure must be narrowly tailored to restrict no more access than is absolutely necessary 5. The trial court must maek adequate findings and put them into record to support the closure decision
"Restrictive (gag) order on the press" during TRIALS
1. What do they do? Why does the possibility exist? 2. What is the extent of a judges gag order power on the press? 3. What is the judge's duty/responsibility, according to the sheppard case
Before you get to the Five prongs of richmond newspaper test, one of two questions
1. Whether this kind of hearing (or document, if access to the court record is involved) has traditionally and historically been open to the press and public OR 2. Whether public and press access to this hearing will pay a positive role in functioning or the judicial process
4 categories of info that GRAMA states cannot be accessed
1. private (medical, welfare) 2. Controlled (psychiatric / psychological, adoption) 3. Protected: if the info falls under this category it doesnt have to be released 4. Limited: deivers license, voter
3 goals for FOIA
1. to force agencies to accept, respond to, and process requests for information 2. to limit sharply, the ability of bureaucrats to deny access to official records 3. to make the government accountable for its nondisclosure decisions (UCC if you're going to deny you have to give reasoning)
Freedom of Information Act (FOIA)
1966 law that allows citizens to obtain copies of most public records
9 - Democratic National Committee v Department of Justice (2008)
5's presidential communications privilege protected from disclosure 68 pages of e-mails sent between officials in the White House and the Department of Justice relating to the controversial termination and dismissal of several U.S. attorneys while Alberto Gonzales was attorney general. EXECUTIVE PRIVILEGE. PRESIDENT CAN REFUSE TO DISCLOSE INFORMATION.
Define controversy
A discussion, debate, or dispute in which opposing opinions clash
11 - US v Scrushy (2004)
A federal judge in Alabama issued a broad-based restrictive order to block extrajudicial statements by parties and attorneys. Gagging Trial participants
11 - US v Corbin (2009)
A state legislator was charged with failing to report $225,000 in income on his federal tax return and with lying to federal agents. The defendant asked the court to enjoin the press and the government prosecutors from issuing or publishing press releases, mug shots, and photos and video taken during his walk into the courthouse. Just because a trial is publicized does not mean an impartial jury cannot be found. Size of population and time between publicity and trial are both taken into consideration.
Explain 1 of the FOIA reforms in the 2007 Open government Act (2)
Agencies that fail to comply with the 20-day window in which to respond to a FOIA request are no longer allowed to charge any search adn duplication fees related to that request unless they are "unusual or exceptional circumstances" that justify the delay
Explain 1 of the FOIA reforms in the 2007 Open government Act (3)
Allows for the recovery of attorney fees and litigation costs for FOIA requesters who substantially prevail in FOIA lawsuits
Sources test for defense
BURKE
Which legal settings does the Stewart/Burke test apply or not apply
Branzenburg, Shoen, Burke, Hatfill, Gonzales
9 - Rhea v District Board of Trustees of Santa Fe College (2012) [re FERPA]
Count One alleged the e-mail, including the student's name, is a public record
Explain 1 of the FOIA reforms in the 2007 Open government Act (4)
Created the Office of Government Information (OGIS) to serve as a GOIA ombudsperson to mediate FOIA disputes -- charged with reviewing compliance by government agencies with FOIAs rules and making recommendations to congress and president on how to improve FOIA
10 - Cohen v Cowles Media co (1992)
CONFIDENTIALITY = COHEN Promissory estoppel laws Journalists cannot break general laws and then try to claim a first amendment exemption from the rule.
FOIA - how do we define agency record
Citizens for responsibility case helps but is not complete Citizens for Responsibility and Ethics in Washington vUS Dept of Homeland Security 1. The intent of the documents creator to retain or relinquish control over the records 2. the ability of the agency to use and dispose of the record as it sees fit 3. the extent to which agency personnel have read or relied upon the document 4. the degree to which the document was integrated into the agency record system or files
Richmond newspaper test
Criminal trials that verifies they are opent rials and that includes press / Publicer industries (Does same for civil)
11 - Skilling v US (2010)
ENRON went down, thousands lost their jobs, filed for retrial on prejudice "pervasive community bias against those who oversaw Enron's collapse." but didnt get it The Skilling Test
What aspect of which FOIA exemption does the case Democratic National Committee v Dept of Justice (2008) help us understand?
Exemption 5 (working papers/discovery) Of the information is decided to be working papers then that information would be exempt from being revealed Executive Privilege - executive office of the president is covered: the president would be able to call on this to protect information, been called on many presidents many times to stop information from coming out the the public (usually to prevent a scandal)
The 1996 Electronic Freedom of Information Act amended the FOIA in what way?
FOIA was first law to establish an effective legal right of access to government info, underscoring the crucial need in a democracy for open access to government info by a citizen
Utah GRAMA law
Government Records Access and Management Act
Explain 1 of the FOIA reforms in the 2007 Open government Act (1)
Government agencies are required to assign a tracking number for each FOIA requests that will take more than 10 days to process and to establish a phone number or an internet site to help requesters check the status of their requests
who is a journlist?
In re madden, the shoen, ogrady, too much media 1. someone who engages in investigative reporting 2. gathers news 3. possesses the intent at the beginning of the news gathering to disseminate this news to the public - us district court
9 - Prison Legal News v Executive Office for United States Attorneys (2011)
Joey Jesus Estrella who was killed by two cell mates This case and other cases have said that the privacy right DOES NOT die with the individual, it extends to the family. FAVISH TEST (not produced any evidence that would warrant a belief by a reasonable person that the alleged government impropriety might have occurred to put the balance into play (1. must show public interest in the information is significant and; 2. must show the information is likely to advance that public interest)
10 - Too Much Media, LLC v Hale (2010)
Madden test NJ appellate court ruled that the NJ Shield law didn't cover or protect a woman who posted messages on a site called Oprano.com its not enough to simply self proclaim oneself a journalist
10 - Shoen v Shoen (1993)
Madden test for journalists and stewart/burke test tried to kick dad out of business was no longer fit to run U-Haul, gathered info and conducted info, wrote book to get money, get it out to the public and make money
10 - In re Madden (1998)
Madden was subpoenaed to testify regarding his reports that a rival wrestling network was in serious financial difficulty. do not have to work for established news paper Madden test for journalists (all or nothing), through this case a journalist was defined as one who - engages in investigating reporting - gathers news - possesses the intent at the beginning of the news gathering process to disseminate the public news to the public
Gentile v State Bar of Nevada (1991)
Nevada disciplined Gentile after he allegedly made improper comments after a client was indicted Nevada rule permitted attorneys to publicly describe the "general nature of the claim or defense" but only if done "without elaboration" Supreme Court said that Nevada rule was too vague and therefore violated the First Amendment
Too Much Media LLC v Hale (case problem)
News media engaged on in connected with or employed by newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public
Good and bad aspects of shield laws
Ogrady two websites with apple info, thought hed be protected under cali shield laws, 1st amend and state constitution, apple subpeonaed him because they wanted to know who leaked the information, the operators argued they were reporters posting the info and didnt need to reveal their sources, anyone who publishes info is protected by cali shield - court disagreed
10 - US v Smith (1998)
PDA selling stocks short us courts have been willing to permit journlsit to protect confiential sources and confidentital information most have been far more reluctant to protect reporters when nonconfidential information is at issue and most subpoenas issued today to juralist are to gain access to nonconfidential information
11 - Nebraska Press Association v Stuart (1976)
PREss --> PREtrial 3 point test to evaluate whether a restrictive order could be justified if these conditions are met: 1 - intense and pervasive publicity concerning the case is certain 2 - no other alternative measure might mitigate the effects of the pretrial publicity 3 - the restrictive order will in fact effectively prevent prejudicial material from reaching jurors any attempt by the government to prevent expression carried a heavy presumption against its constitutionality widely publicized murder trial
Branzenburg Ruling
Paul Pappas was called to share what he saw and heard at a black panthers headquarters, Earl Caldwell gained confidence of the black panther and had awareness as to their activities
Stewart/Burke test key words
Relevant, Unobtainable, Critical *the full prongs need to apply them and that it is the party seeking the information that must prove the prongs are met
What happened in the Prison Legal News (2011) case to override exemption 7c
Personal privacy, those requesting government-held information use the Favish case test which is 1. must show public interest in the info is significant 2. must show info is likely to advance that public interest
Government in Sunshine act
Physician payments sunshine act which is part of the affordable care act requires manufacturers of drugs, medical devices, and biologicals that participate in US federal health care programs to track and then report certain payments and items of valye given to the US
Legal test / recourse for sources who lose confidentiality
Promissory Estoppel test via the Cohen case
Stewart/Burke Test
Relevant - probable cause to believe the info is relevant to specific violation of law Unobtainable - has the party seeking the info tried to obtain it in other ways Critical - does the party seeking the info have a compelling and overridiing interest in the info Reporter privilege is not a thing if these three prongs are met
The first deadly sin of government
SECRECY the first refuge of incompetence, must be a bare minimum in a democratic society, for a fully informed public is the basis of self-government. Those elected or appointed to positions of executive authority must recognize that government, in a democracy, cannot be wiser than the people. Which is very likely true, but not of necessity widely believed by those in authority
Sources test for prosecution
STEWART
10 - Branzburg v Hayes (1972)
Stewart / Burke Test (dissent, not law) Reporters do not have a First Amendment right to refuse to reveal the identity of confidential sources when subpoenaed to testify before to a grand jury.
10 - US v Burke (1983)
Stewart / Burke test from defendants perspective basketball gambling sceme
10 - New York Times v Gonzales (2006)
Stewart / Burke test to retain confidentiality of sources and info (all 3 prongs) A grand jury subpoena was served on the telephone service providers of two reporters from the New York Times as part of an investigation to find out who leaked and disclosed information without authorization to the reporters, regarding a government plan to freeze the assets of two Islamic charities that allegedly funded terrorism.
10 - Hatfill v Gonzales (2007)
Stewart/Burke test to retain confidentiality of sources and info leaking to journalists his name as the possible perpetrator who mailed anthrax laced letters
Define impartial juror - Gentile
The fact that a juror may have prior knowledge of the facts of the case or preexisting opinions about it before being impaneled as a juror does not disqualify him or her, the keys are ability and willingness (to set aside out of court info and decide the case based upon the evidence presented at trial)
10 - O'Grady v Superior Court (2006)
The web site operators argued they were acting as publishes, editors and reporters in posting the information on their sites and thus did not need to reveal the names of their sources. leaked Apple product information California's shield law,
Sheppard Mandates
Trial remedies for pretrial publicity (Trial judges responsibility to ensure fair trial, and if you try and shut down the press you have to exhaust all these) 1. Voir Dire 2. Change of venue 3. Change of veniremen 4. Continuance 5. Admonition 6. Sequestration 7. Gag trial participants (Scruchy)
Stewart Test
When the gov cant fulfill these three the journalists shouldn't be forced to testify (1) Probable cause that reporter has information relevant to violation of the law. (2) There is no other alternative means to get the information. (3) Government has compelling interest in the information.
9 - Citizens for Responsibility & Ethics in Washington v U.S Department Homeland Security (Both 2009 and 2007)
White house visitor logs at public record subject to FOIA
Define grand jury
a jury, normally of twenty-three jurors, selected to examine the validity of an accusation before trial.
Privacy Act of 1974
a law that gives citizens access to the government's files on them, if info is misused or abused you have recourse under this act
Other statutory law restricting access to info FERPA and Rhea
a teacher was fired when a student emailed school complaining teacher made innapropriate comments, copy of email sent to teacher with student name redacted and teacher requested name under FOIA, just because a document involves a student doesn't mean it is protected under FERPA - email was about professor not student In order to constitute an educational record under FERPA, the info in the document must be directly related to a student
Nebraska press association test for restrictive orders aimed at the press
all or nothing test 1. There must be an intense and pervasive publicity about the case, persuasive media can drastically impact someones life (sheppart v maxwell didnt get a fair trial because what was printed about him) 2. No other alternative measure might mitigate the effects of the pretrial publicity - lst resort is to gag the press, you must consider all other alternatives before you gag the press (Sheppard mandates) 3. The restrictive order will in fact effectively prevent prejudicial obliquity from reaching potential jurors
Define impartial juror - Burr
an impartial juror is one who is capable and willing to decide the case soley on the evidence admitted into court
Regarding FOIA what is an "agency"
any executive department in executive branch
FOIA - how do we define agency
any executive department, military department, government corporation, government-controlled corporation or other establishment in the executive branch of government (including executive office of president) or nay independent regulatory agency
Too Much media definition of news
any written oral or pictoral info gathered, procured, transmitted, complied, edited or disseminated by, or on behalf of any person engaged in, on, connected with or employed by a news media and so procured or obtained while such required relationship is still in effect
Nebraska Press association test regarding gag orders on trials
define test and apply it dont forget middle prong and all 7 sheppard mandates
3 Prong Exemption Test
make arguments why agency records need not be released under one of the nine FOIA exemptions 1. Describe justifications for nondisclosure in reasonably specific detail 2. Demonstrate the information withheld logically falls within the claimed exemption 3. And are not contradicted by evidence in the record or by evidence of agency bad faith
11 - Kansas v Longoria (2015)
murder case, requested change in venue lynch mob mentality not enough to give rise to a presumption that he would not receive a fair trail
Not a trial situation
prosecuting attorney brings in evidence before jury, and grand jury decides if there is enough evidence for them to go to trial and if there is then it goes to trial
Promissory estoppel laws:
right to sue the papers for their breached confidentiality promise. Prevents injustice when someone fails to keep a promise that he or she has made. To prevail in an action for promissory estoppel the plaintiff is usually required to show: defendant made clear and definite promise to plaintiff, defendant induce plaintiffs reliance on that promise, plaintiff relied on that promise to his or her detriment and harm, that the promise must be enforced by the court in the interests of injustice to the plaintiff
12 - Publicker Industries v Cohen (1984)
ruled that civil proceedings are also presumptively open to the public and the press, coroprate proxxy fight, survey of authrities identifies as feaures of the civil justice sustem many of those atrcibutes of the criminal guarantees the public and press right of aaccess
12 - Richmond Newspapers v Virginia (1980)
supreme court ruled there was a right under both common and 1st amend law for public and the press to attend a criminal trial
The Contempt Power
the power of public institutions such as congress or a court to punish persons who show contempt for the process, orders, or proceedings of that institution
Ogrady v Superior Court (Case problem)
they're doing everything a reporter is doing, it doesn't matter who they are employed by,
11 - Sheppard v Maxwell (1966)
trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. The last alternative is gagging the press
Should the first amendment protect gathering and dissemination of information
what do you think reasoning and evidence 2 reasons you agree or disagree (p342) The essence of news gathering to the first amendment - the common law doesnt help us much - constitution - the right to gather news - federal courts - supreme courts has limited the rights of - not have used 1st amend as protection when journalists break laws - if you have nothing to gather how do you disseminate information - journalist do not have special rights beyond citizens