MCOM 3320 - Final Exam

In effect, the purpose of SLAPP lawsuits is to silence critics.

True

One of the first issues that any advertising regulator or court examines in evaluating an ad is whether it is false or misleading.

True

Public schools may regulate student expression when it is sponsored by the school or is likely to be understood to represent the school.

True

Sam falsely published that Joan robbed a bank. In some states, Joan may sue for infliction of emotional distress as well as for defamation.

True

Section 315 applies to legally qualified candidates for elective offices but does not apply to ballot issues.

True

The Sixth Amendment protects criminal defendants' rights to a speedy, public trial by an impartial jury of his or her peers.

True

The Supreme Court has said presumptively open trial proceedings may be closed if judges show closure is limited and a necessary last resort to protect a compelling interest.

True

The Titanic disaster led the U.S. Congress to adopt a law regulating commercial radio.

True

The U.S. Supreme Court adopted the clear and present danger test after it found the bad tendency test allowed government to punish too much harmless speech.

True

The U.S. Supreme Court held that the Internet has full First Amendment protection.

True

The courts permit indecent material on all channels carried by local cable television systems except commercial leased access channels.

True

The doctrine of generally applicable laws significantly pertains to the area of newsgathering.

True

The fair use factor usually carrying the most weight is the impact of the unauthorized use on the market for the copyrighted work.

True

Using a well-known trademark in a way that disparages the mark is known as diminishment.

False; dilution

Few of the amendments proposed to the U.S. Constitution have been approved or ratified.

True

Fighting words are words directed at an individual that inflict injury or tend immediately to disturb the peace.

True

The crime of sedition punishes

truthful criticism of the government

The libel defense of "neutral reportage"

is accepted by only a few courts

KWAK-FM moves the Sordid-Chuckles show to 1-5 a.m. Now, the station

is not in trouble because the Sordid-Chuckles show is being broadcast during a safe harbor period

Privacy law

is not the same from state to state

Before a work's creator may sue for copyright infringement, he or she

must register the work's copyright

When a law is challenged as applied, courts judge the law's constitutionality based

on the real effect of the law

The term "sunshine laws" refers to

open meeting laws

ASCAP and BMI are

organizations that grant licenses to use compositions

Which of the following is not one of the justifications courts use to justify broadcast regulation?

paramount character

FOIA exemptions

permit requested information to be released if the agency wants to release it

What did the U.S. Supreme Court decide in United States v. Jones?

physically mounting a GPS transmitter on a car amounts to a search and violates the Fourth Amendment

Section 315 of the Communications Act applies to

political broadcasting and cablecasting

In states in which the right of publicity survives a person's death, the right of publicity is considered a

property right

The majority of federal courts

protect reporters from revealing information by using a qualified First Amendment privilege

Sam writes a short story. As soon as the story comes out of Sam's printer, the story is

protected by copyright

The most accurate way to describe the trend in First Amendment protection for advertising over the 20th century is

steadily little

In determining at what point group size is too large for an individual member to file a libel claim when the group has been defamed, the courts have explicitly and unequivocally said that the critical mass is 15 group members.

False

In libel law, there is a list of specific words that, when used, defamation is automatically presumed.

False

Instrumentalists argue that First Amendment freedoms advance obscenity.

False

Intrusion cannot occur if paparazzi are taking pictures in public parks.

False

Statutes may be enacted by legislatures at the federal level only.

False

Synchronization rights are needed when a broadcast radio station plays current CDs over the air.

False

The U.S. Supreme Court has not interpreted or applied the First Amendment right of assembly.

False

The explicit text of the Constitution establishes public universities as public forums where the content of speech may not be regulated.

False

The law that governs the recording of conversations is uniform nationwide.

False

The legislation currently regulating broadcast radio and television in the United States is the Radio Act of 1912.

False

The standard courts use to determine if a private facts plaintiff kept information private is that the information was not revealed to more than 20 people.

False

There are three categories of emotional distress lawsuits, intentional infliction of emotional distress, negligent infliction of emotional distress and deliberate infliction of emotional distress.

False

In a libel case, material that is largely, but not completely, true is still likely to be regarded as false.

False, it is substantially true

Courts use the experience and logic test to determine whether

whether a court proceeding should be open to the public

A magazine advertisement for Gutrot Cola shows a man drinking one of the company's products. The man looks just like BinR, a rap singer. The advertisement does not say the man is not BinR. BinR, who didn't give permission to the candy company, sues Gutrot. BinR will

win because he did not give the company permission to use someone who looks like him in an advertisement

In New York Times v. United States, the Supreme Court said that prior restraints could be constitutional when speech poses a clear and present danger to a government interest of the highest order.

True

Local cable television systems pay a fee to the cities or states where they provide service to subscribers.

True

Many courts use a four-part test in assessing the constitutional libel defense of opinion.

True

Maryland passed the nation's first shield law.

True

Most U.S. Courts of Appeal have recognized that a reporter's privilege exists.

True

Prior restraints on speech are presumptively unconstitutional.

True

Private individual plaintiffs suing for intentional infliction of emotional distress do not have to prove actual malice on the defendant's part.

True

Rhetorical hyperbole as a libel defense is based on the idea that no reasonable person would take the material in question seriously, and therefore that material did not damage anyone's reputation.

True

Stare decisis means let the decision stand.

True

The First Amendment prohibits abridgements of the freedom of speech and the press by all levels and branches of government.

True

The First Amendment protects indecent material in print media, such as books and newspapers.

True

The First Amendment protects using swear words in the print media and movies.

True

The Food Lion case revolved around undercover journalists investigating various practices in grocery stores.

True

The Food and Drug Administration has some authority to regulate advertising.

True

The wording of the Freedom of Information Act allows federal agencies significant flexibility in determining whether a record should be disclosed.

True

To win a private facts lawsuit, the standard a plaintiff must show is that publication of the information would be highly embarrassing to a reasonable person.

True

To win an intrusion suit, a plaintiff must show she had a reasonable expectation of privacy.

True

Trademark law protects Internet domain names.

True

Under the Hicklin v. Regina definition, material was obscene if it was inappropriate for children.

True

A traditional public forum is

public property that is held in trust for the public to use for assembly and communication

In the Milkovich v. Lorain Journal decision, concerning the "opinion" defense in libel suits, the U.S. Supreme Court

said implied defamatory statements could be grounds for a libel suit

When a jury is secluded to protect it from potential sources of prejudice, the jury is

sequestered

List the four steps in the Ollman Test for opinion:

1. Verifiability 2. Common meaning 3. Journalistic context 4. Social context

A contempt of court citation can result in

a jail sentence or fine

In copyright law, a "bundle of sticks" refers to

the rights a copyright holder has

Roth test

• a test saying something is obscene if (1) an average person, applying contemporary community standards" found the work taken as a whole appealed to prurient interest, meaning that it "excites lustful thoughts," and (2) obscene material was "utterly without redeeming social importance," and (3) even if a work did appeal to the prurient interest, the Roth test said it was not obscene if it had even a small amount of social value **see page 532

pornography

• a vague--not legally precise--term for sexually orientated material

Sherman Act

• an act of Congress (1890) prohibiting any contract, conspiracy, or combination of business interests in restraint of foreign or interstate trade

A work is copyrighted when it is

A. unusual B. original C. fixed in a tangible medium D. all of the above ---E. B and C above---

safe harbor time

10 p.m. to 6 a.m.

When did Congress establish the Federal Trade Commission?

1914

When was the Freedom of Information Act first passed by Congress?

1966

If a journalist refuses to name confidential sources, a court may cite the reporter with violation of due process.

False

If every sentence and quote in a published story is accurate, it could never be the target of a successful libel claim.

False

The Wire Service Defense - the wire service defense may be applied as long as the following are present:

1. The defendant received material containing the defamatory statements from a reputable news-gathering agency. 2. The defendant did not know the story was fake. 3. Nothing on the face of the story reasonable could have alerted the defendant that it may have been incorrect. 4. The original wire service story was republished without substantial change.

The Freedom of Information Act gives reporters (and others) access to documents maintained in

A. Congress B. the office of the U.S. president C. federal courts D. all of the above ---E. none of the above---

In Near v. Minnesota, the Supreme Court ruled that prior restraint is justified to stop media criticism of government officials.

False

In Richmond v. Virginia, the Supreme Court established that the right to a public trial does not exist in either the First Amendment or the common law.

False

In Sheppard v. Maxwell, the Court said one constitutionally acceptable way to assure fair trials is to impose restraining orders on the media to prohibit coverage of the trial until a verdict is reached.

False

In a Freedom of Information Act case involving a request submitted by The New York Times to NASA, the Times wanted the cockpit audio tapes from the Challenger accident. NASA refused and won the case based on what FOIA exemption?

Exemption Six -- Personal Privacy

A station airing an editorial supporting one candidate over another must provide opposing candidates equal opportunity under Section 315.

False

A trademark and a copyright protect the same rights.

False

Access to court records is controlled by federal law.

False

All tobacco advertising is illegal in the U.S.

False

Anthony Comstock was the first U.S. Postmaster General to bring charges against an individual for mailing obscene material.

False

What law enables prosecutors to target those who send unsolicited e-mail advertisements?

CAN-SPAM Act

In which U.S. Supreme Court ruling was the commercial speech doctrine first established?

Central Hudson Gas & Elec. Corp. v. N.Y. Public Service Commission

The FCC receives its operating budget—that is, is funded by—

Congress

Because advertising regulation is largely handled state-by-state, whether an ad crosses state lines is immaterial.

False

Branzburg v. Hayes made it clear that reporter's privilege does exist in grand jury situations.

False

Matt, a KHOG-AM reporter, rushed to meet police at jewelry store where a robbery/murder had occurred. He saw two young children walking on the other side of the street. Without determining if the children's parents were available so he could ask permission, Matt pushed a microphone up to the children and asked if they knew the man who was murdered in the jewelry store. The children had not known that their father, who owned the store, was dead. The children's mother sues KHOG-AM for intentional infliction of emotional distress. It is likely a court will find that

KHOG-AM's reporter acted in an extreme and outrageous way

A majority of states have shield laws.

True

Stare decisis describes the doctrine that

lower courts should follow precedents established by higher courts

The principle of federalism

makes the states and the federal government mutually independent

Broadcast reporters with cameras and other recorders

may be denied access to trials

deregulation

• the process of removing or reducing state regulations

Instrumentalists argue that the First Amendment protects the freedom of speech and of the press because these freedoms

a. advance important societal goals, such as self-governance in a democracy b. advance self-fulfillment and self-expression c. provide a check on government abuse and a safety value for social discontents *d. all of the above*

A woman is walking down a public sidewalk with a man who is not her husband. A newspaper photographer, standing on the sidewalk across the street, takes a picture of the couple, and the picture appears in the next day's paper. The woman would have a good case for

a. appropriation b. intrusion c. private facts d. false light e. none of the above

Judges may punish actions that directly and intentionally interfere with the proceedings of the court with

A. criminal contempt citations B. Civil contempt citations ---C. both of the above--- D neither a or b

When seating a jury, attorneys use

A. peremptory challenges to eliminate prospective jurors for no stated reason B. expert advisors to profile ideal jurors C. for-cause challenges to eliminate prospective jurors whose responses to questioning suggest a prejudice relevant to the case ---D. All of the above---

The Freedom of Information Act gives reporters (and others) access to documents in

A. state legislatures B. state executive agencies and departments C. state courts D. all of the above ---E. none of the above---

Aristotle saw law

a. as a human invention b. as a means to curb human shortcomings c. as a means to increase universal well being *d. all of the above* e. none of the above

Government regulations that target the content of speech because of government disfavor with the ideas expressed are called

a. content neutral b. viewpoint based c. content based *d. both b and c*

Elements that could help show actual malice include

a. failure to check facts b. quickly publishing a story when the news is not "hot" c. fabricating interviews -------d. all of the above------- e. none of the above

"Sound-alike" radio commercials

a. have been found to be an invasion of privacy b. will not be invasions of privacy if it is made clear that the voices do not belong to the "famous" people c. are not invasions of privacy because "famous" people's names are not used -------------d. both a and be-------------

In Brandenburg v. Ohio, the Supreme Court said advocacy of violence is protected speech unless the speech

a. intends to incite violence b. is likely to incite imminent violence c. prompts audience dissent *d. both A and B*

Congress passed a federal shield law shortly after the Branzburg Supreme Court ruling

False

Congress passed a law enabling prosecutors to target those who send unsolicited e-mail advertisements.

False

Content-neutral regulations are also called majoritarian regulations.

False

Courts find content-based restrictions of speech constitutional if they are both rational and reasonable.

False

Courts have held that the "local community standards" parts of the Miller v. California obscenity test cannot be applied to the Internet because the Internet is a nationwide mass medium.

False

Courts have ruled that the First Amendment prevents cities from using zoning laws to regulate adult bookstores and adult theaters any differently than they regulate all other bookstores and theaters.

False

In the U.S. Supreme Court's obscenity definition, "prurient interest" and "patently offensive" have the same meaning.

False

Intrusion can occur only when the defendant physically trespasses on a plaintiff's property.

False

Journalists reporting on government affairs typically have absolute privilege.

False

Jurors are not impartial if they have any knowledge of the trial before it starts.

False

Laws that protect national security by punishing speakers who incite violent actions are unconstitutional if they pass the Brandenburg test.

False

Local cable systems cannot be required to provide channels for the public, educational institutions or government agencies to use.

False

Neutral reportage was established as a libel defense by the U.S. Supreme Court to protect reporters' attempts to remain objective.

False

No plaintiff yet has won an appropriation lawsuit based on an advertisement using his or her identity.

False

Outrageousness is an important element of the negligent infliction of emotional distress tort.

False

Repeating or republishing a libelous statement is generally immune from a successful libel claim.

False

Section 315 applies only when a legally qualified candidate for an elective office uses a broadcast station or cable system to discuss political matters.

False

Showing minors in sexual situations likely will be found to be variable obscenity.

False

Since 1972, no U.S. journalist has been fined for refusing to reveal sources or other information.

False

Since 1972, no U.S. journalist has been jailed for refusing to reveal sources or other information.

False

Since it was established in 1980, the commercial speech doctrine has remained unchanged.

False

The FCC has held that broadcast material is indecent only if it repeats over and over certain words not permitted on radio or television.

False

The Federal Trade Commission's authority is exclusively corrective. It has no power to do anything to help prevent false and misleading advertising.

False

The First Amendment protects against the government seizing non-obscene books owned by a person convicted of selling obscene material.

False

The First Amendment's protection of disruptive speech is stable regardless of political, economic or social conditions.

False

The U.S. Supreme Court has clearly stated that there is First Amendment protection for news gathering.

False

The U.S. Supreme Court has said the First Amendment requires particularly sensitive or vulnerable individuals to be protected from offense, upset and disquiet.

False

The U.S. Supreme Court ruling in Branzburg was a unanimous decision.

False

The commercial speech doctrine provides advertising with at least as much First Amendment protection as any other kind of speech.

False

The concept of limited purpose public figure has been ruled invalid by U.S. courts.

False

The courts categorize violent content in the mass media as obscene.

False

The media generally lose lawsuits that contend media content caused someone to injure or kill himself or someone else.

False

The media lose many more negligent infliction of emotional distress lawsuits than they win.

False

The notion that an individual's reputation is something of value, possibly worth being protected by the law, did not develop until the 20th century.

False

The proper legal citation for a case decided on June 16, 2005, by the Seventh Circuit of the U.S. Court of Appeals and published starting on page 825 of volume 411 of the Third Series of the official Federal reporter is 411 F.3d 825 (2005).

False

To win a false light suit, a plaintiff may prove either that the story was false or that the story was true.

False

Two provisions in cable law permit cable systems to carry local television stations, i.e., must-carry and access consent.

False

U.S. courts have allowed emotional distress lawsuits since the adoption of the U.S. Constitution.

False

Under strict scrutiny, a law is constitutional only if it advances an important public interest and falls within the powers of government.

False

When a court applies the negligence test to determine if a video game manufacturer caused physical harm, it is irrelevant whether the manufacturer should have anticipated that the game would cause harm.

False

When invited by government officials to accompany them, journalists may enter private property without the consent of the property owner or resident.

False

The term "libel-proof plaintiff" is applied to media organizations that the Supreme Court has ruled never can be sued for libel.

False, it is a term meaning ones reputation is deemed to be so damaged already that additional false statements of and concerning him or her cannot cause further harm.

The statute of limitations on libel claims is one year throughout the United States.

False, it is one, two, or three years depending on the state. The clock begins ticking on the date the material was made available to the public.

Section 230 of the Communications Decency Act protects Internet service providers (ISPs) from libel claims, although the protection is not absolute.

False, it offers immunity

Fair comment and criticism is a complete protection for anyone who critiques work that is in the public eye.

False, it only protects critics.

The U.S. Supreme Court established the test for opinion during the confirmation hearings of Judge Robert Bork.

False, it was decided during Ollman v. Evans

Given that letters to the editor are expressions of opinion, they are always protected from libel claims?

False, letters that combine opinion and fact are not protected.

In Sheppard v. Maxwell, the Supreme Court said that the responsibility to guarantee a fair trial rests primarily with the defense.

False; judge

Among the three branches of government, the executive branch is supreme.

False; they are co-equal

What federal agency is the primary regulator of cable television and broadcast radio and television?

Federal Communications Commission (FCC)

Open meetings laws often are referred to as

Freedom of Information laws

The U.S. Supreme Court has ruled that companies enabling people to download copyrighted music from the Internet likely are violating federal copyright laws.

True

The federal trademark law is known as the Lanham Act.

True

When a court orders a new venire, it calls a new pool of potential jurors from another county.

True

When a juror decides if material appeals to the prurient interest the juror is supposed to apply local community standards and not the juror's own personal standards.

True

court applying the incitement test to determine if the producer of a video game was responsible for an injury caused by a game player will consider if the injury occurred within a very short time after the player played the game.

True

The 1976 Copyright Act says using a copyright notice—e.g., © 2014 Jan Jones—is not required to have copyright protection.

True. Eliminated after March 1, 1989

What state first enacted a law regulating Internet advertising?

Utah

The qualified First Amendment reporter's privilege, allowing a reporter to refuse to reveal information in a trial, is based on

a Supreme Court decision in a case requiring to reveal information before grand juries

True threats, which are directed at an individual with the intent and likelihood of causing the listener to fear bodily harm, are

a category of punishable speech

To meet the legal standard for impartiality, a potential juror must

be free of a fixed opinion of the defendant's guilt or innocence

At the center of the 1942 U.S. Supreme Court ruling in Chrestensen v. Valentine was advertising for

boarding a docked submarine

The public interest is the standard for regulating

broadcast radio and television

Textualists believe that interpretation of the Constitution should be guided

by the Constitution's own language

The qualified privilege defense in a libel suit

can be lost if the story is not fair and accurate

If a film using adults as the actors contains serious literary, artistic, political or scientific value, the work

cannot be legally obscene

Commercial broadcast television stations are required to

carry three hours each week of "core programming" for children

It is illegal to possess in one's home

child pornography

Hate speech is

generally protected by the First Amendment

Lawsuits for emotional distress

generally were not allowed a century ago

Channel 11's general manager decides it is the station's civic duty to interview candidates running for mayor. Channel 11 then runs a half-hour "Meet the Candidates" news interview program every Wednesday at 7 p.m. for five weeks before the general election. However, there are six candidates for mayor. The general manager decided not to invite George, the Purple Party candidate for mayor. George demands that Channel 11 gives him the same amount of time the other mayoral candidates had. The general manager must

give George a half hour of time

The U.S. Constitution

gives Congress the power to adopt copyright and patent laws

Assume the FCC adopts a definition of indecency the courts find constitutional. Then Suzy Sordid and Chucky Chuckles are hosts on a program airing from 6-10 a.m. on KWAK-FM. Chucky often discusses sexual themes that is not quite obscene, but close. The station

may be in trouble, because the Sordid-Chuckles show may be indecent

When speech and action are intertwined in a symbolic act, such as flag burning, the speech

may be regulated using content-neutral laws

When a journalist requests copies of documents through the Freedom of Information Act, the federal government

may delete words or sentences is an exemption permits

The Supreme Court has held that reporters

may not refuse to testify before grand juries without risking being found in contempt

In Tinker v. Des Moines Independent School District, the Supreme Court ruled that public schools

may not regulate non disruptive student protest

Abundant evidence from numerous, consistent social science studies establishes beyond a doubt that pretrial publicity

may or may not harm a defendant's ability to receive a fair trial

Deliberately quoting someone without accurately using the exact words the person used

may show actual malice and/or falsity

If a plaintiff suing for intentional infliction of emotional distress proves the defendant acted in a reckless way that could cause emotional distress, the plaintiff

may win her case

The qualified First Amendment reporter's privilege against revealing sources or other information is used in

most federal courts and in a minority of states' courts

Three weeks before the primary election, Channel 3's general manager decides that his viewers are tired of seeing political ads. To discourage politicians from advertising on Channel 3, the general manager charges politicians twice the usual advertising rate. Channel 3's general manager

must charge politicians the lowest unit rate

The general manager of Channel 3 decides that viewers don't like commercials for political candidates and that the station just won't run any. Marion is a candidate for U.S. Senate. When Marion asks to purchase a one-minute ad on Channel 3, the station

must sell Marion a one-minute ad

The clear and present danger standard permits government to restrict First Amendment rights when restrictions are

necessary to prevent extremely serious and imminent harm

A plaintiff won a lawsuit by proving a television station had a duty to use due care. The plaintiff was suing the station for

negligent infliction of emotional distress

Which of the following may be protected by copyright?

news stories published in newspapers

The United States

agreed in the late 20th century to join the Berne Convention

In the only two false light cases the U.S. Supreme Court has decided, the Court ruled

all plaintiffs, whether public figures or private individuals, must prove actual malice to win a false light lawsuit

Federal laws and court rulings

allow making copies of television programs and recordings for an individual's personal use

A police officer comes into your newsroom with a valid search warrant. The warrant, issued by a judge, says the officer can search your desk and your computer files. You should

allow the officer to search your desk and computer files

What was the Star Chamber?

an English court that declared libel was a criminal offense

Some experts claim that First Amendment protection for advertising reached its "high water mark" with the 1975 U.S. Supreme Court ruling in Bigelow v. Virginia. At the center of this case was advertising for

an abortion clinic

Under the Freedom of Information Act

an agency may release a document that is covered by an exemption

Fair use is

an exception that is part of the copyright law meant to allow society to learn about and comment upon copyrighted works

In Gannett v. DePasquale, the Supreme Court held that pretrial activities that are an integral part of the trial process are

presumptively open to the public

The U.S. Supreme Court ruled that the Internet's First Amendment status is most like that of

print media

The First Amendment

protects a range of rights

In equity law,

provide remedies and relief for a variety of harms

In a physical harm lawsuit, a direct relationship between the plaintiff's action and the defendant's injury is called

proximate cause

Congress has said that federal records to which journalists and others have access through the Freedom of Information Act include

records that either on paper or are electronic records

Channel 3 airs an editorial on its 10 p.m. newscast saying the city government is incompetent and is letting the city crumble quickly into decay. The city council sues Channel 3 for libel. A court will

reject the lawsuit because U.S. courts don't allow governments to sue for seditious libel

The Miller v. California obscenity definition

requires all three parts of the test to be met for material to be found obscene

Rulings by the courts and the FCC about indecent material on broadcast stations are attempts to balance

stations' First Amendment rights and federal law banning all indecent material in broadcasting

All federal law is

subject to review by the U.S. Supreme Court

Which libel law concept suggests that a statement is not false even when it is slightly inaccurate?

substantial truth

The federal Privacy Act says personal information in federal government files can't be released. The FOIA says personal information can be released if an agency so chooses. How is this conflict resolved?

the FOIA takes precedent; the information may be released

The "opinion" defense to a libel suit is based on

the First Amendment

To overcome a journalist's qualified privilege to withhold notes or the names of sources, the government usually has to show

the information sought is clearly relevant

Which of the following is not among the reasons that the number of successful libel claims is declining today?

the media are covering people less, therefore damaging reputations less often

The Supreme Court has said that if a mass medium breaches a promise to keep a news source's name confidential,

the news source may successfully sue if the reporter who promised confidentiality breaches that promise

Which of the following is not an element in defining limited purpose "public figure" as laid out in Gertz v. Robert Welch, Inc.?

the person must have been pulled into the controversy unwillingly

The issue in the 44 Liquormart case was whether

the price of alcoholic beverages could be included in a liquor store's newspaper ads

In Richmond Newspapers v. Virginia, the U.S. Supreme Court established that

the public enjoys some right to open public trials

Kim knows Beth is suffering from clinical depression. On her morning radio program, Kim says, "When you see Beth, tickle her. She just refuses to laugh." Beth sues Kim for intentional infliction of emotional distress. A court likely will find

the remarks were extreme and outrageous

Statutory construction is the term used to describe

the role of the courts in determining the meaning and application of laws

In the absence of a contract saying otherwise, the copyright for a news story written by a reporter regularly employed by a television station belongs to

the television station because the story is a work made for hire

Which statement below is most accurate with regard to what the Food Lion case says about the newsgathering technique of using hidden cameras?

the use of hidden cameras is not necessarily illegal

On the FCC

there are five commissioners who serve 5-year terms

City, county and state government documents are available to reporters

through various state open record laws

Without permission, an artist uses a picture of a well-known person in a way that is not a literal reproduction of the person's likeness, but a use adding a creative element to the likeness. The celebrity sues, claiming a breach of his right of publicity. In deciding who wins the suit, a judge could apply which test?

transformative test

The Curtis Publishing Co. v. Butts and AP v. Walker cases that were consolidated by the U.S. Supreme Court in 1967 produced a three-part test to help in evaluating whether news media conduct meets the actual malice standard. Which of the following is not one of the elements of that test?

was the story about an issue of public importance?

In evaluating a case about the labeling on beer cans, which element of the commercial speech doctrine was especially vital in the Court's analysis?

whether the regulation achieved its goal by directly advancing the state interest

Many courts do not consider which of the following factors in determining whether a defamatory story is protected by the opinion defense:

whether the reporter felt common law malice toward the plaintiff

Channel 3 airs a story that it received from the Associated Press, a wire service. The story says Sally, the president of Acme Biscuit Company, was arrested for bank robbery. The story was false. Sally sues Channel 3 for libel. Sally likely

will lose her suit against Channel 3 because Channel 3 reasonable relied on Associated Press

A newspaper photographer sneaks across someone's lawn, peeks through barely open curtains and takes a picture of a person who is in a darkened living room. The photographer decides she has done a terrible thing and exposes the film, so the picture never is printed. The individual whose picture was taken likely will

win an intrusion suit

Regarding obscenity, indecency and the Internet, the U.S. Supreme Court has

not yet upheld a congressional law limiting indecent content on the Internet

In a 1976 ruling, the U.S. Supreme Court said that pharmacists should be allowed to advertise the price of prescription drugs. The Court said it is important that

(a) freedom of speech applies to those who receive information (b) First Amendment protection had never been denied to speech merely because it was commercial in nature (c) speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement (d) consumer interest in the free flow of commercial information may be as high, if not higher by far, than the interest in the day's most urgent political debate ---------- (e) the Supreme Court said all these principles are important ----------

Bigelow v. Virginia (1975)

*access, time, place and manner* FACTS: A Virginia statute made it a misdemeanor for "any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, [from encouraging] or [prompting] the procuring of abortion or miscarriage." Bigelow, director and managing editor of the Virginia Weekly, was convicted under this law when his newspaper ran an advertisement for an organization which referred women to clinics and hospitals for abortions. ISSUES: Did the Virginia law violate the First and Fourteenth Amendments of the Constitution? Can a service legal in one state be advertised in a state where it is not? DECISION: 7 votes for Bigelow, 2 vote(s) against PRECEDENT: The Court held that the Virginia law infringed upon Bigelow's First Amendment rights and violated the Constitution. Citing prior holdings such as New York Times v. Sullivan (1964), Justice Blackmun denied the Supreme Court of Virginia's ruling that commercial speech is not afforded First Amendment protection. Furthermore, the advertisement in question contained important information in the "public interest" which went beyond merely informing readers of a commercial service. Finally, the Court feared that the Virginia statute had the potential to "impair" national and interstate publications which might choose to carry similar advertisements.

Miami Herald v. Tornillo (1974)

*access, time, place and manner* FACTS: Pat Tornillo was Executive Director of the Classroom Teachers Association and a candidate for the Florida House of Representatives in Dade County, Florida. The Miami Herald published two editorials criticizing Tornillo and his candidacy. He demanded that the Herald publish his responses to the editorials. When the Herald refused, Tornillo sued in Dade County Circuit Court under Florida Statute Section 104.38, which granted political candidates criticized by any newspaper the right to have their responses to the criticisms published. The Herald challenged the statute as a violation of the free press clause of the First Amendment. The Circuit Court ruled that the statute was unconstitutional. The Supreme Court of Florida reversed this decision. ISSUES: Did Florida Statute Section 104.38, the "right to reply" statute, violate the free press clause of the First Amendment applied to the states through the Fourteenth Amendment? DECISION: 9 votes for Miami Herald Publishing Co., 0 vote(s) against PRECEDENT: Yes. In a unanimous decision, the Court reversed the Supreme Court of Florida and held that Florida's "right to reply" statute violated the freedom of press found in the First Amendment. In an opinion written by Chief Justice Warren E. Burger, the Court recognized the risks posed to the "true marketplace of ideas" by media consolidation and barriers to entry in the newspaper industry. However, even in that context, "press responsibility is not mandated by the Constitution and...cannot be legislated." The statute was an "intrusion into the function of editors," and imposed "a penalty on the basis of the content." Chief Justice Burger relied on New York Times v. Sullivan in that the "right to reply" statute "limits the variety of public debate," and was therefore unconstitutional. Justice William J. Brennan, Jr. authored a concurring statement. Justice Byron R. White authored a concurring opinion.

Tinker v. Des Moines ISD (1969)

*fighting words, student rights* FACTS: In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year's Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year's Day, the planned end of the protest. Through their parents, the students sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district's actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion. ISSUES: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment? DECISION: 7 votes for Tinker, 2 vote(s) against PRECEDENT: Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference. In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority's opinion relies on a distinction between communication through words and communication through action. Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest.

Kuhlmeier v. Hazlewood ISD (1988)

*fighting words, student rights* FACTS: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. ISSUES: Did the principal's deletion of the articles violate the students' rights under the First Amendment? DECISION: 5 votes for Hazelwood School District, 3 vote(s) against PRECEDENT: No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test. OTHER: Trial and district courts upheld the censorship. Appeals court overturned saying the newspaper was a public forum. USSC overturned appeals decision saying it isn't a public forum because only students in the class can put information.

Brandenburg v. Ohio (1969)

*prior restraint v. 1st Amendment* FACTS: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." ISSUES: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? DECISION: 8 votes for Brandenburg, 0 vote(s) against PRECEDENT: Amendment 1: Speech, Press, and Assembly The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

Thornhill v. Alabama (1940)

*prior restraint v. 1st Amendment* FACTS: Byron Thornhill joined a picket line that was protesting against his former employer. Section 3448 of Alabama state law made it an offense to picket. Pursuant to the law, Thornhill was arrested and fined $100. Thornhill, a union president, was the only picketer to be arrested and tried under the law. ISSUES: Did the Alabama law violate Thornhill's right to free expression under the First Amendment? DECISION: In an 8-to-1 decision, the Court held that Section 3448 of the Alabama State Code was facially invalid. PRECEDENT: The Court held that labor relations were "not matters of mere local or private concern," and that free discussion concerning labor conditions and industrial disputes was "indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society." The Court found that no clear and present danger of destruction of life or property or of breach of the peace was inherent to labor picketing, and thus deserved First Amendment protection.

New York Times v. United States (Pentagon Papers)

*prior restraint v. 1st Amendment* FACTS: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. ISSUES: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? DECISION: 6 votes for New York Times, 3 vote(s) against PRECEDENT: Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Near v. Minnesota (1931)

*prior restraint v. 1st Amendment* FACTS: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. ISSUES: Does the Minnesota "gag law" violate the free press provision of the First Amendment? DECISION: 5 votes for Near, 4 vote(s) against PRECEDENT: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

Schenck v. U.S. (1919)

*threats to national security* FACTS: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. ISSUES: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? DECISION: 9 votes for United States, 0 vote(s) against PRECEDENT: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.

Which U.S. Supreme Court Justice wrote the Court's opinion in New York Times v. Sullivan (1964)?

Brennan

Press-Enterprise Co. v. Superior Court I (1984) & Press-Enterprise Co. v. Superior Court II (1984)

DO REPORTERS HAVE PRIVELAGE? • Concept: reporter-client relationship • The courts have long recognized attorney-client privilege and doctor-client privilege etc., and what that means is your doctor cannot be brought into court and testify what he or she knows about you. • The principle of this is that these people (doctors, lawyers) have to have confidentiality in order to do what they do for us as people. They try to argue that the same relationship exists with reporters. • Reporters have to have some kind of protection, or their sources would not speak.

Aside from what the law says about reporter's privilege, the law is clear that when journalists choose to break promises of confidentiality, that action is protected by the First Amendment freedom of the press clause.

False

Hustler v. Falwell (1988)

FACTS: A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed. ISSUES: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? DECISION: 8 votes for Hustler Magazine, 0 vote(s) against PRECEDENT: Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.

New York Times v. Sullivan (1963)

FACTS: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. ISSUES: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? DECISION: 9 votes for New York Times, 0 vote(s) against PRECEDENT: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

Cher v. Forum International (1991)

FACTS: Fred Robbins interviewed Cher for Us Magazine and he sold the interview to Forum International. They published a part of the interview. Forum also changed the text to appear as the poser of questions. Cher sued Forum for falsely creating and exploiting the impression that she had given an exclusive interview to Forum which she had not, and the exploitation of her celebrity to sell magazines without her consent. ISSUES: Does the First Amendment protest Forum International's and Penthouse International;s advertising publications? DECISION: No, but the 1st Amendment could have protected them if they had used try promotional device and headline, or if they had used it with knowledge that those elements were false or in reckless disregard of their truth. PRECEDENT:

Gertz v. Robert Welch, Inc. (1974)

FACTS: Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz lost his libel suit because a lower court found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964). ISSUES: Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public figure? DECISION: 5 votes for Gertz, 4 vote(s) against PRECEDENT: The Court reversed the lower court decision and held that Gertz's rights had been violated. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. However, continued Powell, the actual malice standard did not lose all significance in cases involving ordinary citizens as he advised states to use it in assessing claims for punitive damages by citizens suing for libel.

Because journalists are protected by the First Amendment, they cannot lose breach of contract suits.

False

By definition, the use of hidden cameras as a newsgathering technique is intrusive and is therefore always illegal.

False

Cable television began in the late 1940s because many people wanted to watch movies that local television stations were not showing.

False

Cameras generally are excluded from all federal and state courts.

False

Categorical balancing establishes a hierarchy of speech rights based on the identity of the speaker.

False

Common law does not apply to government officials.

False

Gitlow v. New York (1925)

FACTS: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. ISSUES: Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment? Threshold issue: Does the First Amendment apply to the states? DECISION: Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

Time v. Hill (1967)

FACTS: In 1952, three escaped convicts took James Hill, his wife, and their five children hostage in their Whitemarsh, Pennsylvania, home. After nineteen hours, the family was released unharmed. The convicts were later apprehended in a violent clash with police during which two of them were killed. In 1953, Joseph Hays' published a novel based on the Hill family's ordeal. When the novel was subsequently made into a play, Life Magazine ("Life") printed an article about the play that mirrored many of its inaccuracies concerning the Hill family's experience. Alleging that it deliberately misrepresented his story, Hill sought damages against Life. On appeal from an adverse ruling, the Appellate Division of the New York Supreme Court remanded for a new trial where a reduced adverse ruling was imposed on Life. Following an unsuccessful appeal in the New York Court of Appeals, the Supreme Court granted Life's owner, Time Inc. ("Time") certiorari. ISSUES: Is a publication, containing misrepresentations about the subject of its coverage, protected under the First Amendment's freedom of speech guarantees? DECISION: 5 votes for Time Inc., 4 vote(s) against PRECEDENT: Yes. In a 6-to-3 opinion, the Court set aside the Appellate ruling against Time because the lower court failed to instruct the jury that Time's liability was contingent upon a showing that it knowingly and recklessly published false statements about the Hill family. The Court explained that absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate. The Court remanded for retrial under the new jury instruction.

Milkovich v. Lorain Journal (1989)

FACTS: Milkovich was the wrestling coach at a high school (Maple Heights) in Ohio (1974 season). At a home match, members of the team were involved in a fight - several people were injured as a result. Because of the fight, the Ohio High School Athletic Association (OSHAA) put the team on probation for its behavior. Consequent to that, parents and students alike sued the organization, seeking a restraining order for the probation, based on the fact that the members had not yet had due process. The Court of Common Please overturned the conviction, and in consequence, the local newspaper published an article claiming that Milkovich had lied so that the probation would be overturned. Milkovich filed suit on defamation grounds. ISSUES: he legal question presented was whether the local newspaper could be held liable for defamation because it published an article about a private rather than public official/individual as a means of attacking his character? DECISION: The Supreme Court held that although newspapers have First Amendment rights, as per the legal question, they could be held liable. PRECEDENT: The majority of the Court found that the First Amendment does not automatically shield newspapers from being sued for libel, particularly when a plaintiff can clearly demonstrate that statements made by a newspaper were intended to harm someone and their reputation. The Court found that the article in question was not constitutionally protected; the First Amendment does guarantee free speech, but the law of defamation and social values dictate that character attacks -when not based on fact but speculation - are not protected. In short, the Court ruled that while the First Amendment offers profound free speech rights, those rights are never permitted when clear defamation exists.

Time, Inc. v. Firestone (1976)

FACTS: Plaintiff, the wife of an ultra-wealthy individual filed for divorce from her husband, with both of them alleging serious adulterous activity. The Court filed a very strongly worded opinion. This information was then passed to Defendant - based on four independent sources, Defendant published: "DIVORCED. By Russell A. Firestone, Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his third wife; a onetime Palm Beach schoolteacher; on grounds of extreme cruelty and adultery; after six years of marriage, one son; in West Palm Beach, Fla. The 17- month intermittent trial produced enough testimony of extramarital adventures on both sides, said the judge, 'to make Dr. Freud's hair curl.' '' Within a few weeks of the publication of this article respondent demanded in writing a retraction from petitioner, alleging that a portion of the article was ''false, malicious and defamatory.'' Petitioner declined to issue the requested retraction. RULE: *New York Rule:* Defamation against a public figure cannot be maintained absent a showing of actual malice. *Public Figure:* Where an individual assumes a role of especial prominence in the affairs of society, or voluntarily thrusts themselves to the forefront of a particular public controversy in order to influence the resolution of the issues involved in it ANALYSIS: Dissolution of a marriage through judicial proceedings is not the sort of ''public controversy'' referred to in Gertz, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public. Nor did respondent freely choose to publicize issues as to the propriety of her married life. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony. We have said that in such an instance resort to the judicial process is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court. Her actions, both in instituting the litigation and in its conduct, were quite different from those of General Walker in Curtis Publishing Co She assumed no ''special prominence in the resolution of public questions. Respondent was not a ''public figure'' for the purpose of determining the constitutional protection afforded petitioner's report of the factual and legal basis for her divorce. Therefore, the Gertz analysis applies, and Defendant cannot claim a defense on the basis of a lack of actual malice. CONCLUSION: Respondent was not a ''public figure'' for the purpose of determining the constitutional protection afforded petitioner's report of the factual and legal basis for her divorce. Therefore, the Gertz analysis applies, and Defendant cannot claim a defense on the basis of a lack of actual malice. *Note:* The Court applies Crane requirements once it decides that Firestone is not a public figure, so had the defamation been true as to the entire scope of what was said - they would escape liability. Alternatively, if the facts tended to prove the entirety of the allegation, Defendant would only be partially liable.

Galella v. Onassis (1973)

FACTS: Ronald Galella was a freelance photographer specializing in getting pictures of celebrities and other public figures. Jacqueline Kennedy Onassis, widow of former President John F. Kennedy, was one of Galella's most frequent subjects for photographing. In the course of seeking opportunities to photograph Onassis and her two children, Mr. Galella had behaved on several occasions in a way that Mrs. Onassis objected to, including an instance where he jumped in front of her son's moving bicycle, one in which he came perilously close to her in a boat while she was swimming, and several times appearing at her childrens' school. As a result of the incident where Galella jumped in front of her son's bicycle, Secret Service agents assigned to protect the Kennedy children had chased, subdued, and arrested Galella. Mr. Galella brought suit claiming he was wrongfully arrested and prosecuted, in addition to alleging that Mrs. Onassis and the Secret Service had interfered with his pursuit of trade. Mrs. Onassis counterclaiming for invasion of privacy, assault and battery, intentional infliction of emotional distress, and harassment. Mr. Galella was acquitted of the charges for which he was arrested, but his civil suit against the arresting agents and Mrs. Onassis was dismissed as the agents were acting within the scope of their official duties and thus entitled to immunity. Galella, already subject to a restraining order for his conduct, was further restricted when the Court issued an order enjoining him coming with close proximity to Onassis or her children and limiting his future attempts to photograph the family. Galella appealed. ISSUES: Was the dismissal of Galella's claims proper? Does the injunction violate Galella's First Amendment rights as a newsman? DECISION: Yes, dismissal of the plaintiff's claims below was proper and he failed to raise a claim of serious error. No, the injunction does not violate his First Amendment rights. The First Amendment does not give journalist license to act criminally or tortuously in the course of the news-gathering. However, the order below was broader than necessary to protect Onassis, and should be modified accordingly. PRECEDENT: The First Amendment does not shield reporters from liability when they violate the law during the course of their duties. While reporters and photographers alike have an important role to play as they gather news for public consumption, they must do so within the bounds of the law.

A company may pick any word or symbol and have it protected by a trademark.

False

A radio station selects stories from the local morning newspaper and reads them on the air as if the station's personnel had reported and written the stories. This is neither copyright infringement nor unfair competition.

False

Aristotle's concept of a just balance between personal interests and communal concerns is called the tipping point.

False

As irritating as paparazzi can be, courts have consistently ruled that their actions are simply part of the newsgathering process and violate no laws.

False

Kim, a journalist during the day, writes a novel at night. Kim's copyright on the novel will last

Kim's life plus 70 more years

What 1938 law targeted unfair business competition in the marketplace?

Lanham Act

Miller v. California (1973)

Manager of a Newport Beach, Calif., restaurant and his mother were opening the day's mail, and one junk mail envelop contained an advertising brochure for a film titled "Marital Intercourse" and MCOM 3320 Obscenity and the Media Exam 4 four books. The books were titled, "Intercourse," "Man Woman," "Sex Orgies Illustrated" and "An Illustrated History of Pornography." • The brochures were illustrated with photos. Now notice the tiles. Remember in the Memoirs case the court added the idea of a redeeming social value. In the Roth case they talked about scientific, artistic so forth we are OK. Two of these books were presented as such. • So Miller and his mother take this stuff to the police department. They look at the material with interest and went out and arrested Marvin Miller for violating a California law against distributing obscene material. Notice, not publishing, but distributing. • A trial court in California found Mr. Miller guilty. State appeals court affirmed that and Chief Justice Burger managed to get a five member majority to agree to a definition of obscenity. Justice Harlan in his part of the opinion wrote that we have an intractable obscenity problem in the U.S. • So, four years after the Stanley v. Georgia decision, they have a case that allows them to do something. • They carefully pick which case because the California case was based on California law. Turns out for once California did something right. • USSC upholds California decision and create a three part test (called the Miller Test or Miller/Roth Test) that is still in force today: • (1) The average person applying contemporary community standards would find the material taken as a whole appeals to prurient interest. • (2) The work in question depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law. - So what happened in Calif. is they had a law that specifically said "we don't want to see this." We don't want to read about this. Now all 50 states somewhere in their state law say they don't want t see or read this kind of stuff. All because of the Miller Test. • (3) What's known as the SLAPPS Test is created. This test says the work as a whole lacks serious, literally, artistic, political or scientific value. • We still use this test today. It took them 16 years, but the courts got the issue solved with this case.

The 1976 Copyright Act protects unpublished and published works.

True

Roger, director of the City of Midville's Alcohol Licensing Bureau, was charged with illegally giving Mary, a Midville Gazette reporter, a list of bars under investigation for selling alcohol to minors. That violated the state law requiring that alcohol investigations be kept secret until charges are brought. The Gazette published a story based on the information Mary received. Roger was criminally charged with illegally disclosing information to Mary. He was put on trial. Mary was subpoenaed to testify at the trial. The district attorney asked Mary to tell the jury if Roger gave her information other than what was in her story. If so, such information also might violate the law. Mary refused to answer. The judge held Mary in contempt for refusing to reveal the information. Mary appeals the contempt citation. The state uses the qualified First Amendment privilege. What is the likely outcome?

Mary will be required to testify because this is a civil case and reporters are more likely to be allowed not to testify in civil cases

When employing ad hoc balancing, judges make decisions

based on the particulars of the specific case facts

Pam Patrick was a famous movie actor 20 years ago, but retired and withdrew from the public eye. While she was an actor, she stole an automobile. She was not arrested for the theft and only her brother knew about the incident. Last week, Gunk Magazine published an article revealing the theft. Patrick brought a private facts lawsuit.

Patrick will lose because passage of time does not change her newsworthiness

The U.S. Supreme Court consistently has ruled that the media will not lose a private facts lawsuit if the published information was accurate and lawfully obtained from a public record.

True

A U.S. Supreme Court ruling suggests that a journalist may legally broadcast an anonymously provided recording of a conversation even if the recording was made illegally.

True

A federal court upheld the constitutionality of a federal law passed in 1969 that prohibits tobacco advertising on broadcast media.

True

Although Jerry Falwell sued Hustler Magazine for many different torts, the only tort the U.S. Supreme Court considered in Hustler Magazine v. Falwell was intentional infliction of emotional distress.

True

Although the First Amendment stands as a nearly complete ban on prior restraints, they may be constitutional to prevent incitements of violence and interference with ongoing military operations in times of war and incitements to overthrow the government.

True

An FCC license is required to operate any broadcast station in the United States.

True

An early-21st century corporate speech regulation case involved the practices of athletic shoe manufacturer Nike and whether any statement it makes is commercial in nature.

True

An individual member of a group can file a successful libel claim when the group, but not the individual, is identified.

True

An unsigned opinion of the U.S. Supreme Court is called a per curium opinion.

True

Aside from shield laws, some state courts have ruled that reporter's privilege is embedded in that state's constitution.

True

At the root of New York Times v. Sullivan was a kind of advertisement.

True

Cable laws allow television stations to require the local cable system to delete certain programs that duplicate shows the stations carry.

True

Cable television regulation is shared between the U.S. Congress and local or state governments.

True

Chilling effect is the name used to describe the tendency for unclear government regulations to discourage the exercise of constitutionally protected rights.

True

Courts in some states have refused to allow plaintiffs to bring false light lawsuits against the mass media.

True

Courts of appeal establish precedent.

True

Fanciful marks are the most distinctive of the trademark categories.

True

Laws are well tailored when they are not vague or overbroad.

True

Laws that indirectly limit the freedom of speech while achieving other important government objectives are called content-neutral time, place and manner restrictions.

True

Laws that make viewpoint-based discriminations are reviewed under strict scrutiny and generally are unconstitutional.

True

Plaintiffs' claims of fraud or misrepresentation are unlikely to succeed when brought against individuals clearly identifying themselves as journalists.

True

Section 315 of the Communications Act of 1934 requires broadcast stations and cable systems to make equal opportunities available to legally qualified candidates for the same political office.

True

Some plaintiffs suing the media for intentional infliction of emotional distress have been able to prove that the media acted outrageously.

True

Sound recording is the copyright law's word for the words and/or music embedded in a phonorecord.

True

A newspaper published a classified advertisement that said, "Having trouble? Need to remove someone? Contact me to get rid of your problems. Bill." Dick hired Bill to kill his golfing partner, Frank. Frank's family sued the newspaper. A court likely would find

a reasonable person should have known the advertisement had a substantial likelihood of causing harm

New York Times v. Sullivan is considered a landmark libel law ruling for many reasons, including?

a. it constitutionalized libel protection by specifically applying the First Amendment b. it made it more difficult for public official plaintiffs to win libel suits by requiring them to prove actual malice as well as the level of fault c. by giving the press more protection, it seems to have resulted in a more aggressive press --------d. all of the above---------

Journalists cited with contempt of court

a. need not obey the court order because such orders violate the First Amendment b. may face time in jail c. have obstructed the judicial process d. always are engaged in unethical behavior *e. both b and c*

A defense against an intrusion lawsuit is

a. no publication took place b. newsworthiness of the story c. reasonable care was taken while being on private property ------d. none of the above is correct-------

The fair report privilege

a. provides journalists some "breathing room" to report on government matters without first having to prove the truth of claims b. is based on the idea that keeping citizens informed may outweigh the need to avoid damaging reputations c. requires that the report is fair and accurate -----------d. all of the above-----------

The U.S. Supreme Court struck down the anti-hate ordinance at issue in RAV v. St. Paul because the law was

a. underinclusive b. overbroad c. content based *d. all of the above*

A U.S. senator making a speech on the senate floor has

absolute privilege

A witness testifying in a murder trial has

absolute privilege

Forum shopping

acknowledges that different results may be obtained in different courts

Glenda, the mayor of Oztown, sues the Oztown Gazette for intentional infliction of emotional distress because of a highly critical editorial the paper published. Among the elements Glenda must prove to win her lawsuit is

actual malice

Which major concept in libel law stems from New York Times v. Sullivan?

actual malice

Commercial limits during children's programming

apply to both broadcast stations and cable stations

Under the First Amendment, prior restraints by government

are a last resort of the most extreme nature

The two methods to amend the U.S. Constitution

are difficult and time consuming

The U.S. Supreme Court found that search warrants served on journalists

are legal and must be obeyed

With regard to liability for online libel, the Telecommunications Act of 1996 states that online service providers

are not liable for defamatory comments carried on the system if the material was provided by another content provider

Currently, the U.S. Supreme Court

closes its proceedings to cameras

Courts usually refer to advertising as

commercial speech

The "fair comment" defense to a libel suit is based on

common law

A newspaper reporting on a U.S. senator making a speech on the senate floor has

conditional privilege

A newspaper reporting on the testimony of a witness in a murder trial has

conditional privilege

Which of the following are not covered by the Freedom of Information Act?

congress and federal courts

Which word or phrase applies to the agreement by an advertiser that it will comply with the FTC to stop making one or more advertising claims?

consent order

In private facts lawsuits

courts carefully examine the story to determine if it is newsworthy

A statute of limitations for libel suits

does not exist; libel suits can be filed anytime

A plaintiff trying to prove she or he was frightened or extremely anxious because of the defendant's actions is suing for

emotional distress

The Butts and Walker cases are also noted for

extending the actual malice fault requirement to public figures

Reporters' access to documents and records held by governments in the United States, and to government meetings, is protected primarily by

federal and state statutes

As part of the Telecommunications Act of 1996, Congress adopted a law making it illegal to transmit indecent material to minors over the Internet. The Supreme Court

held the law unconstitutional

Under federal regulations, federal agencies, such as the FBI, are able to obtain search warrants to search newsrooms

if the agency believes the search will help prevent serious harm to a person

The idea that the law should protect privacy—the right to be left alone—first was put forward in the U.S.

in a law review article written by Warren and Brandies and published in 1890

The concept that the Fourteenth Amendment extends the reach of the Bill of Rights to apply equally to state governments is called

incorporation

Sybil often played the video game "Die Now." One afternoon, Sybil deliberately ran her car into James' car. James sued the makers of "Die Now," claiming the game caused Sybil to become aggressive and cause James' injuries. If a court applies the incitement test to determine if the "Die Now" manufacturer was responsible for James' injury, James must prove the manufacturer

intentionally meant for game players to become aggressive and cause harm

In the law, the word "pornography"

is not used as a legal term, except in the phrase "child pornography"

Variable obscenity is a term for material that

is obscene for children, but not for adults

Which of the following statements about New York Times v. Sullivan is not true?

it created the concept of the public figure libel plaintiff

Which statement below best describes how Section 230 of the Communications Decency Act affects the liability of ISP libel defendants when libelous material is posted online?

it eliminated ISP liability

The common law is

judge-made law

The term meaning that context is required before a determination can be made whether material is libelous is

libel per quod

Police officers give reporters permission to follow the officers into the house of a reputed drug dealer. The drug dealer

likely can successfully sue the reporters for intrusion if he did not give them permission to be in the house

The magazine Dog Diary runs an advertisement for itself in another magazine, Cat Quarterly. The ad includes a picture of a famous dog kennel owner who did not give permission for her picture to be used. The dog kennel owner

likely will not win an appropriation suit if the picture had been used in a Dog Diary article

Sharon is a reporter for the Times, a daily paper. She tells Wally that she will not reveal his name if he gives her important information about a candidate running for governor. Wally gives Sharon the information. Sharon decides the story would be better if she included Wally's name. The Times publishes Sharon's story with Wally's name included. Wally sues Sharon and the Times. Wally

likely will win because the First Amendment does not protect journalists who break promises to sources

The Supreme Court has ruled that the First Amendment

limits the power of state and federal legislatures

Which term applies to an FTC's demand through an administrative court that an advertiser stop making a particular claim?

litigated order

XYZ television network presents a movie showing two 10-year-old boys playing with a gun owned by one of the children's parents. The gun accidentally fires, severely injuring one of the boys. Shortly after the movie runs, two young brothers find a gun in their house. While playing with the gun, the gun fires and kills one of the boys. The brothers' parents sue XYZ television network. The parents will

lose because XYZ television network could not have foreseen that this children would watch the movie and try to imitate what they saw

City police are on your public university campus investigating an attack against a student. The police tell everyone they must leave the area. You are a reporter. You stay near the police to get information for your story. The police arrest you. At your trial you

lose because reporters do not have a First Amendment right to gather information in a public place

A reporter falsely tells a homeowner she is from the Newcomer's Welcoming Committee, a private, non-governmental group. The homeowner admits the reporter into the house. Later discovering the reporter's true identity, the homeowner sues for intrusion. The homeowner likely will

lose the intrusion suit; the reporter may face criminal charges

In a letter to the editor in the local newspaper, Cindy complained that Monty, who owns a hardware store in town, wears ugly clothes. Monty felt insulted and sued Sally for intentional infliction of emotional distress. Monty will

lose the lawsuit because Cindy only insulted him

A pharmacist wrote a book about drugs people can buy without a prescription. The book said Drmxz, an over-the-counter cold medication, had no side effects. However, Drmzx can cause serious problems in people who have liver problems. The pharmacist had accidentally overlooked that side effect. Cheryl, who has liver trouble, read the book, bought and took Drmzx, and suffered severe symptoms. Cheryl sued the book publisher for causing her injuries. Cheryl likely will

lose, because courts say book publishers cannot verify all the information in every book they publish

How many states have enacted laws regulating Internet advertising?

two

In states that have adopted shield laws, a judge may

use only the state's shield law to determine if a reporter will be requires to reveal information

Appropriation would be

using a newsworthy photo of a person in an advertisement without permission

Red Lion Broadcasting v. FCC (1969)

• A case that tests the fairness doctrine and the FCC's interpretation of that. • The FCC's interpretation of the fairness doctrine, among other things, guards against personal attacks. • The FCC felt that the required persons attacked, those persons had to be given a tape or a transcript of the offending remarks and given an opportunity to reply. • Reverend Bill James Hargis was a radio and TV evangelist. Had a program called the Christian Crusade. He attacked Fred Cook calling him a communist sympathizer. • Rev. Hargis distorted the circumstances under which Cook left a NY Newspaper. • Cook also wrote a campaign track critical of Barry Goldwater. He also wrote and article criticizing J. Edgar Hoover. • Cook considered libel actions, but instead he went for a broadcast thing called redress, which is asking for the opportunity to respond. He wrote to all of the stations that carried the broadcasts, demanding time. Most of the statins agreed. • WCB in Red Lion, Penn., sent to Fred Cook their rate cards. • Cook appealed. Two cases are put together here. • The USSC upheld a Washington D.C. court and the court wrote and 8-0 opinion saying First Amendment rights of viewers and listeners was paramount. • Thus they upheld the right to reply. This would fall under the First Amendment philosophy of access. • Cook had the right to reply at the expense of the radio station. • This is a prime example of the chilling effect. It had the opposite effect of what the court was asking because broadcasters were steering away from anything controversial. It took a fair amount of time for that to sink in.

Gannett v. DePasquale (1979)

• A police officer of Rochester NY disappeared one day. He had gone fishing with two male companions. A police search found his boat riddled with bullets. • However, in Michigan they found his truck outside a motel. In a motel, some people had officer Klapp's credit card and a gun (police issue). • They told the police how and why they had killed officer Klapp. • In Seneca county, the two men are charged with murder. • Attorneys for the defense asked that the confessions be suppressed and credit card and revolver suppressed as evidence. • Attorneys said publicity jeopardized defendant ability to find an impartial jury. Wanted reporters to be excluded from this hearing. The district attorney did not object. • DePasquale grants the exclusion and closes down the pretrial hearing. Rochester reporter Carol Ritter (worked for Gannett) left the newsroom. • Judge ruled evidence was obtained in violation of the defendants rights and could not be entered as evidence. • One of the thing the court noted was that the reporter did not object to the courtroom being closed, she just left. • In the USSC they are sharply divided over whether the closing of the courtroom was appropriate. • In a 5-4 decision, they said the sixth amendment provision for a public trial is for the benefit of the defendant, and if the defendant waves that right and the judge approves, then it may be closed. • The court pointed out this was a hearing, not a trial. • They also noted that the reporter did not speak up in protest being thrown out at the time.

FTC v. Colgate-Palmolive (1965)

• Advertisers began using mock-ups if they were going to advertise something on TV. For example, if you want t advertise Blue Bell Ice-cream on TV and you have lights generating heat at the rate of 45 K/s what is going to be your problem? The ice-cream will melt. So how do you solve that? Fake ice- cream or mashed potatoes. • Well Rapid Shave employed advertising for a campaign called the great sand paper shave. Basically what they did was they recruited two of the most macho guys the TV audience would recognize in those days. They had these really tough "sandpaper" beards. They had a commercial where they said "Hey look we can shave this sandpaper beard." • The FTC took that ad campaign and the first thing they did was try to reproduce what they saw on TV. They couldn't and the only way the could get it to work was to take the sandpaper and pre-soak it for atlas twenty mins. Then the Rapid Shave would allow for shaving the sandpaper. • So they filed a deceptive advertising complaint and noted in the complaint that Colgate-Palmovile didn't even use sandpaper but a plexiglass mock-up. • Colgate-Palmolive argued in their defense that they had to use the plexiglass because the cameras made sandpaper look like ordinary paper. • USSC said this was deceptive ad and why (which is really important because it gives us a standard). • They give us a standard, saying first of all the using of props or mock-ups is not deceptive per-say, but deception involves using mock-ups to substantiate a claim of the product's material characteristics. • So if you use a mock-up to substantiate what you're promoting as the unique characteristic that is deception. • Secondly, undisclosed use of props where the audience has little else to go on, is deception. This is why when we see ads today, in small print, disclaimers.

Estes v. Texas (1965)

• Billy Estes was a prominent young Texas grain dealer and a business man who was friends with Eisenhower and Lyndon B. Johnson. • Named man of the year by TIME magazine. • Estes was charged with swindling hundreds of farmers and selling to farmers non existent property and fertilizer tanks. During his trial, photographers and TV people (preliminary and during trial) were so numerous that court room was described as a forest of equipment. • During the trial itself, photographers were kept behind false walls and out of sight. Only live coverage of the hearing (trial) was allowed. • Why would live coverage be allowed and not taped? - So the jury couldn't see it when they went home. As long as its live, people watching it on TV will see the same thing the jury sees and the jury doesn't see anything else. • Nonetheless, four jurors admitted to seeing parts. Estes argues that 4th and 16th Amendment rights were violated by media coverage and that led to his conviction. • Case goes all the way to the USSC, who have a 5-4 decision. • Majority opinion concluded that jurors may in fact have been distracted by cameras in the tell-tale-red lights on those camera. He wrote heightened public chaos will result in prejudice. "Trial by television." • So five justices said Estes was cheated of justice and sent the case back to Texas. However, one of those five wrote a concurring opinion disagreeing saying the technology might get better and someday when cameras might be able to carried by one person. • Justice Harlan said he refused to ban cameras from the courtroom, and because of that we are able to see what goes on in the courtroom.

FTC authority (also FDA, SEC)

• the FTC is a federal agency created in 1914 with the purpose of promoting free and fair competition in interstate commerce; this includes preventing false and misleading advertising **see page 651

The Commercial Speech Doctrine

• the government may regulate advertising that is false, misleading or deceptive • the government may regulate advertising for unlawful goods and services **see page 640a(b)

Communications Decency Act

• this act made it illegal to knowingly transmit "obscene or indecent messages to any recipient under the age of 18 years of age" or to make "patently offensive messages" to anyone under 18-years-old **see page 556

Nebraska Press Assn. v. Stuart (1976)

• Earl Simentz killed six people and confessed to anyone who would listen. One victim was a 10-year-old girl who has been raped. • Noted during the hearing, evidence • The media was faced with a gag order saying they could not mention any confessions, report anything about medical information noting sexual assault, and could not report they were under a gag order. This was based on a code of ethics. • Because there was a gag order, the press and press association were not happy. • The USSC overturns the Nebraska ruling which said the media could not report any of this stuff. • The USSC issued what is known as the Nebraska test. • They said there are three "hurdles". • 1. There is or is likely to be widespread pre-trial publicity that is prejudicial to the case. • 2. None of the usual methods of ensuring a fair trial would work to stop the publicity. • 3. What ever the prior restraint is it will stop the flow of publicity. • Appeals court notice that press association had adopted voluntary guidelines patterned on the Sheppard decision. These guidelines have to do with codes of ethics. So the court took the guideline and made them mandatory.

AP v. Walker (1967)

• Edwin Walker sued the Associated Press (AP), claiming that it had erroneously reported that Walker had "led a charge of students against federal marshals" during a riot following the enrollment of the first black student at the University of Mississippi. • the story was proven to be false, but the trial judge's verdict was overturned once the AP appealed the decision. • although the Court found that the story was inaccurate, it also found that no actual malice existed. • Walker had a reputation for incitement and provocation in politics. Since the story was pursued in an even and investigatory tone and led by a credible reporter, no malice was found. • the matter was appealed.

Prometheus Radio v. FCC (2004)

• Following Red Lion their was something of a chilling effect. It kind of took broadcasters a while to figure this out, but generally speaking, by the end of the 70s they are saying we don't want to get involved with controversy. That's counter to what the FCC has been all about anyway. • What that is is deregulation. By 1987 the FCC announced it was no longer enforcing the fairness doctrine, and under Ronald Reagan they say eye-to-eye on deregulation. • One of the things Regan was known for was deregulating a lot of industries, particularly media industries. • So their was a lot of rules. • One of the things that has happened in radio is there are a lot of big conglomerates. That wound up getting into court, and the appeals court ruled in this case, that deregulation has gone too far. They didn't give any rules about what should happen or even any advice about what should happen, but that is the most recent ruling we have.

Central Hudson ... v. Public Service Commission (1980)

• Has to do with government regulation of commercial speech. • Back in 1973 and 1974 we had what sometimes has been known as an oil crisis in this country. We were under an embargo OPEC. They wouldn't send oil to the U.S., and of course we had an appetite for oil. • Under those conditions the New York Public Service Commission passed an ordinance forbidding any advertising by utility companies that would promote the use of electricity. • Whatistheconnectionbetweenelectricityandgasoline?Wegenerateelectricitybyburningnaturalgas. • At this particularly time in our history, the 70s was marked by women's rights and environmentalists. • NYPSC says "Listen no advertisement can say anything suggesting we use more electricity." • Central Hudson (utility company) challenge the ruling on First Amendment grounds. Lower courts sustained NYPSC saying, "You're right." • It goes to the USSC and they overturn. They said the restriction was more extensive than necessary to serve the state's interest. • They gave a four part test, which has ever since been known as the Central Hudson Test, and this is test that a government agency must pass to limit commercial speech. • (1) The advertisement must be for a lawful activity and must not be misleading. - Because if it is not either of those, it is not protected. • (2) There must be a substantial government interest at stake. - The courts said there was in this case. The substantial government interest was we're rationing gasoline and gas products. • (3) The regulation must directly advance the government interest. • (4) The regulation must not be more extensive than necessary to serve the public interest. - This is where the PSC went wrong.

New York Times Co., et. al. v. Tasini (2001)

• In the 90s, the world woke up to the internet. • The NY Times and other media companies see these new digital media formats as another pot of gold. • They start taking good stuff they have done before, put it in a new package and start selling it. • Tasini is a freelancer who sells articles to magazines. Tasini and others sued the NY Times and a bunch of other publications saying they are making money off of the work we did for your newspaper, magazine and we should get a cut of the action. • Courts ruled that a publication cannot repackage work that was originally done for one thing without sharing collected money with the creator of that work. • As a result with the Tasini case, most freelance contracts today are in the form of work for hire. What that means is, if I am the NY Times and I buy your story, I now own all rights to your story.

Roy Export v. CBS (1982)

• Involves the Academy Awards and Charlie Chaplin (pioneer in movies). • He was never nominated for an academy award, but the motion picture academy wanted to recognize him for his work because they wanted him to be recognized, so they created the lifetime achievement award. • The academy awards went to Roy Export, who owns most of Chaplin's films. They commissioned Roy Export to produce a little tribute film to be seen in the 1972 academy awards broadcast. • NBC broadcasted the awards. Everyone involved understood that this was going to be a one-time only use of this film compilation. • In 1973, CBS began to work on a film obituary when Chaplin died. • They sent a note to Roy Export asking to use footage used in award ceremony. They said no because they were working on their own film biography. • Roy Export said we might sell you a one time license or something, but CBS declined because they said they had some of their own stuff from public domain. • Chaplin died on Christmas Day. CBS aired the next day a slightly edited version of the Academy Awards compilation. Roy Exports sued claiming infringement and unfair competition with their own biography. • CBS in its defense tried to call on the first amendment saying ti gave them a general privilege to report newsworthy events. • The district court awarded some damages, both compensatory and punitive noting that the showing was not essential to the news report or the networks assessment of Chaplins place in history. • Said CBS appropriates skills and labor for their own commercial gain. They awarded $717,000 in damages to Roy Export. • Appeals court upheld this ruling and established precedent. They established the unfair competition tort and gave us what is known as a three part test. CBS was pleading news values. • Part 1: Does the copyright material serve a high public interest? • In this case yes because of Chaplin's death. • Part 2: Is the material necessary in reporting newsworthy facts? • Maybe now that's a little squishier. • Part 3: Can public domain material be used instead? • The answer to that question is yes it could be.

SLAPPS test

• to show that a book, movie, magazine or other material is obscene, the government must prove all three parts of the Miller v. California test • the third part of the test says the material, taken as a whole, must lack any serious literary, artistic, political or scientific value **see page 537b

Sheppard v. Maxwell (1966)

• July 4, 1954, Sam Shepard, a surgeon in Ohio lived in a beautiful home. Wife pregnant with second child. • Early in the morning, Sheppard called his neighbor (mayor) that he had found his wife beat to death and that he himself had been beaten. Found son unharmed. Claims bushy haired man did it. • He chased the man and was again knocked unconscious. • Authorities from the beginning treated him as the primary suspect. • One policeman told Dr. Sheppard that lie detector tests were infallible and that he thinks he killed his wife. • The coroner is suspicious because Sheppard is being treated in a clinic that his family owns. • The coroner got his own doctor, and this doctor examines Sheppard. Three days later, Marilyn Sheppard's funeral. • On July 9, Sam reenacted the crime at the request of the coroner, who wanted a confession. • July 20th, newspapers began a campaign of front-page editorials, saying "someone is getting away with murders," and "why is there no coroner's inquest?" • Sam Sheppards attorneys were at the inquest but were not allowed to participate. News accounts of all of this before the trial said the killer washed of a trail of blood, but never came up in courts. • Media also played up many extra-marital affairs. The reality was, only one was hinted at in court. • USSC noted that the chief prosecutor was a candidate for something. Also noted that all three of the Cleveland published the names and address of prospective jurors, and they received anonymous letters and phone calls from friends. • During a debate, the reporters claimed that by hiring a prominent attorney, Sheppard admitted his own guilt. • Columnists likened Sheppard to a purger. • Sheppard is convicted. His first appeal to the USSC in 1956 was denied. The USSC reversed the conviction noting that the blame was spread around. These are things judges can do: • 1. Continuance: continuing the trial; let the publicity die down. • 2. Judged can grant a change of venue. • 3. Engage in rigorous voir dire (interviewing of prospective jurors) • 4. Judges can restrict the number of reporters in the court room. • 5. • 6. • 7. Judges can close preliminary hearings • Sheppard was tried again in 1966, and was absolutely acquitted. Was unable to re-establish his medial practice, and died years later.

Kissinger v. Reporters Comm. (1980)

• Kissinger was secretary of state for a period of time. Was issue because president dies, then vice president dies. Before he was national security advisor to Nixon. • We had a group of reporters who asked for access to notes of conversation between Kissinger and Nixon. The notes covered both the time when Kissinger was foreign policy advisor and when he was secretary of state. • The courts said as a direct adviser to the president, those things were exempt and its not part of the FOIA. However, when Kissinger was secretary of state that processed as a federal suit and it turns out that • USSC said state department cannot produce records it does not own.

Krofft v. McDonald's (1977)

• Krofft sued McDonald's for infringement asking for $250,000 in compensatory damages. • McDonald's files cross appeal because they don think they should have to pay anything. • Appeals court tells McDonald's they have captured the feel of the Pufnstuf show • The court asked are these two works similar beyond coincidence. They also asked if in that similarity, is there similarity in the way ideas are expressed. • The answer to all of these questions was *YES* • So the court found in favor of Krofft.

Chandler v. Florida (1981)

• Miami Beach police officers Noel Chandler and Robert Granger were arrested for burglary. • They were burglarizing a popular restaurant. While they were doing this they were talking to each other on Walmart walky-talkies. An immature radio operator was monitoring their conversation as they committed the crime and he called other police. • These two are in court and Florida at the time allowed cameras in the courtroom as long as they were not a distraction. • Chandler and Granger were convicted and appealed their conviction because there were cameras in the courtroom. • The Florida courts upheld their conviction and then the USSC says that decision in the Estes case was specific to that case. They also said they had no authority over state courts and as long as the presence of cameras did not violate 6th or 14th amendment, the federal court system will not interfere. • If states want to allow cameras they can do it.

U.S. v. Times Mirror (1967)

• Otis Chandler and his family owned the LA Times and following WWII, they started going around to all of the suburbs in southern California. • The justice department wasn't happy and when the Chandlers announce they are buying the San Bernandino Telegram from 15 million dollars, the justice department says no and sues under the Sherman and Clayton Act in March of 1965. • The lower courts say the move to buy this was anticompetitive and the LA Time argue its a different market. • The USCC did an awesome thing and sustain the lower courts and told the Chandlers and Time Mirror they had 60 days to get rid of the San Bernandino paper. So once again the courts are saying they don't like anticompetitive action.

Richmond Newspapers v. Virginia (1980)

• There was a troublesome murder case. A motel owner by the name of John Paul Stevenson was indicted in Hanover County for the death of one of his motel managers. • The key piece of evidence against the motel owner was a bloodstained shirt which police had said was obtained in violation of his First Amendment rights. • Jury convicted Stevenson, but Virginia said shirt was inadmissible and order a new trial. • The next two trials were mistrials because the jury couldn't come to a verdict. • When the fourth trial started, the defense attorney asked that the trial be closed, arguing that a member of the victims family seemed to be coaching witnesses. The prosecutor did not object. • Can't say his guilty if there isn't a reason. • The court rules 7-1 that the lower court had made a mistake. The problem is there were six separate opinions as to why the lower court had made a mistake. Basically the prevailing reason ruled that because of historical origin of trials, there is a long tradition of openness. Trials have become public assemblies, therefore the media has fair access to trials based on the freedom of assemble clause of the first amendment.

Capital Cities Cable v. Crisp (1984)

• This case did in fact make it to the USSC. • Oklahoma at the time was a dry state, and it was against the law at the time to advertise alcoholic beverages on TV. • When cable companies start moving in to Oklahoma communities and the legislatures says they have to block out any signal from out of state with alcoholic beverage advertisements. This was a severe hardship on the cable companies. • Capital Cities took on the state of Oklahoma and they said "Listen, this is a horrible rule," and the state of Oklahoma said "Look this is public welfare issue, so we can regulate content." USSC said "The hell you can." • Only the FCC has the right to regulate and the government doesn't get involved into regulating content, and if they do they have to do it under strict scrutiny.

Miller test

• under the Miller Test, to find material obscene a court must consider whether (1) "the average person, applying contemporary community standards" would find that the work, taken as a whole,, appeals to prurient interests; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value. **see page 533

Citizen Publishing Co. v. U.S. (1969)

• This is the case that brought about the newspaper preservation act. There were two newspapers, morning and afternoon. • What happened is the Tusan Star and Tusan Citizen entered into a joint operating agreement (JOA), which mean the morning newspaper and the evening newspaper agreed to share the same printing press and also share the building. • What got us into trouble was that one of the owners, William Small, decided that when his JOA owner starts to sell, Small exercises his option to buy the star. • The Justice Department said anyone eon this planet except Small can buy this paper because that would be anticompetitive. • USSC said three things wrong with they JOA. (1) the agreement maintained control over circulation and ad rates which is price fixing. (2) did profit pooling and distributed according to a formula, which was no good. (3) in this JOA there was a restriction against execs going to work for other media in the same market. • We wind up with a newspaper where the publisher wanted out. It ends up failing.

Universal Studios v. Sony of America (1984)

• This kind of the leading edge of the digital revolution. • In the late 70s, sony came out with interesting inventions. In this particular case the invention they came out with that didn't exist, was a very high-quality cassette recording device for recording TV. • So Sony made alliances (global) all on board with this technology. • Disney and Universal were not happy about this and were fearful that if people made their own home libraries, then nobody would want to see the Disney stuff. • So Universal Studios and Disney get together and sue Sony, claiming this is a copyright infringement and that they were being cheated out of the exclusive right to their material. • Sony comes out with three arguments: • Argument one: Non-commercial use, especially time-shifting, is fair use. • Argument two: You cannot hold the gun manufacturer libel for what people do with the gun • When this goes to court, Sony play the good guy and stops manufacturing. • In the mean time, JVC comes out with VHS. • The lower courts agree with Sony, saying individual users may reproduce copyright material. • They also bought their Remington Arms argument, saying Universal failed to show infringement. • Appeals court said Sony is accountable. • It winds up in USSC in 1979, but decision isn't until 1984 (heard arguments in 1982). • On a 5-4 decision USSC said you cant hold inventor libel for infringements and said timeshiftimg is fair use.

Branzburg v. Hayes (1972)

• This winds up being a 5-4 decision. A dissenting opinion winds up becoming more important than the court's opinion. • Paul Branzburg was a reporter for Louisville paper. He had confidence of the drug subculture. He wrote a series of telling articles exploring the questions of why middle class children were getting involved into heavy narcotics. • Earl Cladwell was a Black reporter for the NY Times working out of San Francisco and won confidence of the Black Panthers. He won their confidence at a time when the group was said to plotting gorilla warfare against white society. • Caldwell found that panthers had real grievances. • The third case involves Paul Papas, a reporter/camera man for a TV station in Bedford Mass. He also won confidence of a black panther group. • Fearing Police would attack their headquarters, they let papas spend the night with them on the condition that he would report nothing unless the attack took place. • All three of these reporters were served with subpoenas by grand jury who were investigating criminal activity. • Branzberg was told to tell what he knew. trial judge (hayes) said he could not hid being state shield law. • The judge said that his stories and photos made it very clear that laws were being violated. • Branzburg had to appear before jury and name people. Mr. Cladwell was subpoenaed n San Franciscan probing a plot to kill Nixon. He insisted that if he appears before the grand jury he would lose the trust of his sources and cut off important information about the black community. • District court and appeals court were willing to let him refuse, but were not willing to grant him right not to appear in court. The state he was in had no shield law. • They hand down 5-4 decision saying reporters must honor subpoenas. • Before can crack reporter's privilege/subpoena them • 1. reporter has to have first hand knowledge of a crime (Branzburg did) • 2. their knowledge is not available anywhere else • 3. reporters info is essential to the case.

Associated Press v. U.S. (1945)

• We are in Chicago, Illinois, and what happens is Marshall Field has a newspaper called The Chicago Morning Sun. Cornel Robert McCormick has a paper called the Chicago Tribune. • McCormick is already a member of the Associated Press. When Field applies, McCormick veto the application. He did that under terms in the contract which said once their is someone in the community who has AP access they have veto power. • What happened in this case is when AP honors McCormick the U.S. Justice Department moves in and files against the AP a Sherman Act Antitrust lawsuit. • AP stands up and says the First Amendment protects them from any law. • USSC finds that AP's actions present a clear and present danger to vital government interests, which was competition in the market place and the free flow of information. • Then the USSC said newspapers as businesses cannot hide behind the First Amendment when their business actions are otherwise illegal.

Paris Adult Theater I v. Slaton (1973)

• We have a slightly different kind of question that has to do with private clubs and theaters that say "adults only." • This case was also dealing with a case related to the Stanley v. Georgia case and that is that the court was trying to clean up the "porn holiday." • The district attorney in Atlanta, Georgia, Lewis Slaton, filed a civil action to prevent the showing of two films in the Paris Adult Theater I. The two films were titled, "Magic Mirror" and "It All Comes Out In the End." • The theater argued that the Stanley case had established the right of private possession. • The judge in this case agrees that films are obscene and says you can prevent the showing to consenting adults in the confines of a commercial theater. • Slaton appealed and the Georgia supreme court overturned the lower court ruling and sided with the district attorney saying this is terrible stuff and we don't want it. • Paris Adult Theater winds up taking this to the USSC. They become the plaintiff at the supreme court level. On a 5-4 decision, the USSC sides with the Georgia Supreme Court and says there are legitimate state interests in stemming the tide of commercial obscenity. • The USSC said "adult only" restriction is not good enough and states have the power to prevent showings of obscene material if the states define the behavior explicitly. • "Obscenity has no sanctuary behind doors marked "adults only."

Roth v. U.S. (1957)

• We start making rules and begin defining obscenity. • This is the first time the USSC hears a case in where the First Amendment is in direct contact with obscene material. • The court took this case in part, saying that the Hicklin Rule condemned American adults to read only that which was fit for children. • In some ways you could almost look at this as judicial activism. The Heckling Rule takes away from adults some literature, even the Bible. • Samuel Roth was a publisher and he sent obscenity through the mail. He was convicted in lower courts, and his case was put together with David Alberts' in Beverly Hills, Calif. • Alberts did not send stuff through the mail. • USSC is trying to send the message that they aren't worried about the Comstock Law, but are worried about the Hicklin Rule. • Alberts is convicted in California for having for sale obscene and indecent books. • Mr. Roth pleaded that the federal obscenity statute encroached on his first, ninth and tenth Amendment rights. Now the tenth amendment says basically did any rights not spelled out in the first nine are reserved for the states. • Is obscene material protected by the First Amendment? What is obscene material and who will decide what is obscene? • The issue here is (1) whether obscene material is protected by the first amendment, and in order to answer that question, what is obscene material? • Justice O'Brennan wrote on behalf of a 6-3 court, saying obscenity is not protected speech. • In trying to define what is obscenity, the USSC had an interesting struggle. It took the courts almost a decade to answer the question. • In retrospect, the final decision that came out of California in the 70s is really genius. Absolute genius because it answers all of these questions. It is a solution that allows for evolving standards. • The USSC said, first of all in trying to answer what is obscenity, first of all sex and obscenity are not synonymous. Sexual matters depicted in art, literature or science does not deprive them of constitutional safe-guards. • USSC decided that something is obscene if "the average person applying community standards finds that the work as a whole appeals to prurient interest." • The Roth test is important not only because it's the first test, but it's incorporated in the test we still use today. It's part of the test we use today.

... United Church of Christ v. FCC (1966)

• When it came time to renew your license, they would hear from other radio broadcasters on whether they should renew the license. • Station WLBT in Jackson, Miss. put on the air segregationist, racist programming. The office of communication for the United Church of Christ joined a couple of civil rights organizations in monitoring the stations programming. • The station gave time to argue, but refused time for groups to argue on behalf of integration. • When the license came up for renewal, the church asked the FCC to hear its case. The FCC had never faced anything like this before. • The refused to hear the group. However the FCC took note of the complaints in writing, and instead issued a one year renewal. FCC, Broadcasting and Cable • The church takes this to federal appeals court and they ask the court for an order allowing them to intervene. Federal appeals court senior judge, Warren Burger, writes the opinion that says TV viewers have financial interest in the station. • He noted viewers had spent 40 billion dollars already in buys TV sets and that was twenty times all the TV station owners combined int he Us. If viewers could intervene, broadcasters would have incentive to be responsive to the audience and therefore serve the public interest. • Then the court revoked the one year license renewal. They said the owners were not allowed to get a license to broadcast anything ever again. • When it goes to USSC Burger thinks the appeals court did just fine. • This case changed the license renewal process so now we, the public, in whose interest broadcasters are supposed to be working, we can intervene, complain and file requests.

misleading advertising

• a Federal Trade Commission Policy Statement established a three-part federal detention of false and misleading advertising • First, there must be representation, omission or practice that is likely to mislead the consumer. • Second, we examine the practice from the perspective of a consumer active reasonable in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the commission examines reasonableness from the perspective of that group. • Third, the representation, omission or practice must be a "material" one. The basic question is whether the act or practice is likely to affect the consumer's conduct or decision with regard to a product or service. **see page 651b

indecency

• a narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television **see page 530

pandering test

• a new dimension to the Roth Test saying if you promote material for its salacious content, that is pandering and it's no longer protected speech **see obscenity notes pg. 3

Hicklin Rule

• a rule taken from a mid-19th-century English case and used in the United States until the mid-20th century that defines material as obscene if it tends to corrupt children **see page 531

Clayton Act

• an amendment passed by the U.S. Congress in 1914 that provides further clarification and substance to the Sherman Antitrust Act of 1890 • the Clayton Antitrust Act attempts to prohibit certain actions that lead to anti-competitiveness

Newspaper Preservation Act

• authorized the formation of joint operating agreements among competing newspaper operations within the same market area • it exempted newspapers from certain provisions of antitrust laws

Cable Policy Act (1984)

• cable systems could not transmit obscene material • required cable system operators to provide lockboxes to customers who requested them • lock boxes allowed subscribers to block receipt of individual channels

corrective measures

• cease and desist • consent orders • substantiation • litigated orders • corrective advertising • injunctions

Child Online Protection Act (COPA)

• intended to correct the CDA's constitutional problems • the COPA differed from the CDA in two important ways • first, the COPA banned Internet distribution to children of material "harmful to minors," defined in part as being designed to pander to prurient interest, determined by applying contemporary community standards • second, the COPA's restriction on transmitting harmful content applied only to people intending to profit from using the internet • the law also defined minors as 16-years-old and younger, not 17-years-old and younger as the CDA did **see page 557

Lovell v. Griffin (1938)

• involves an ordinance from a city in Georgia (Griffin) • case where it tests whether a community can protect itself against unpopular opinions • Griffin City Council responded to citizens complaints against Jehovah's witnesses • city made it illegal to distribute pamphlets w/o getting permission from city manager • city manager could grant/deny/revoke permission at will • Lovell ignores requirement and is arrest and fined $50 for not getting permission; says can't afford • goes to USSC- Unanimously the USSC reverses decision • ordinance was unconstitutional - any law that makes the right to disseminate the point of view dependent on the judgement of a public offical is an untenable prior restraint

preventive measures

• opinion letters • advisory opinions • industry guides • trade rules • voluntary compliance