Law Test 4: Final

Consent agreement

Written agreement between FTC and advertiser (contract) Advertiser agrees to refrain from deception in future Promise on future actions Refusal = litigation & publicity (lawsuit)

Zero Rating

Zero rating- mobile companies make it "free" to stream content they own AT&T customers (who subscribe to Direct TV) stream for "free" Still have to pay for Direct TV Data caps are arbitrary If AT&T bought Time Warner... could subscribe and stream HBO, CNN, movies, etc. Consider other bundle options (and limitations)

Tresspass and castle law: local

Idaho: a justifiable homicide law in self-defense from violence—must prove intruder's intent thereof Oregon: Use of force justifiable in a range of scenarios without a duty to retreat specified. Oregon Supreme Court affirmed in State of Oregon v. Sandoval that the law "sets out a specific set of circumstances that justify a person's use of deadly force (that the person reasonably believes that another person is using or about to use deadly force against him or her) and does not interpose any additional requirement (including a requirement that there be no means of escape)."

The sixth amendment

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." Cornerstone- cooperation with authorities for investigations

GROSJEAN V. AMERICAN PRESS CO. (1936)

"Parliament imposed a tax upon all newspapers and upon advertisements... That the main purpose of these taxes was to suppress the publication of comments and criticisms objectionable to the Crown does not admit of doubt." "These duties were quite commonly characterized as "taxes on knowledge," a phrase used for the purpose of describing the effect of the exactions and at the same time condemning them. That the taxes had, and were intended to have, the effect of curtailing the circulation of newspapers, and particularly the cheaper ones whose readers were generally found among the masses of the people..."

PELL V. PROCUNIER (1974)

"The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. Accordingly, since [the provision] does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First a

PICON

"meeting the public interest, convenience, or necessity" American public "owns" airwaves (radio and TV broadcast) Government ensures responsibilities met

Central Hudson Test

- AKA The commerical speech doctrine (originated from a Supreme Court opinion), the government may regulate truthful advertising for legal goods/services if: - the regulation serves a substantial state interest (most ads do as the government is trying to protect consumers by making the ads fair and truthful) - the regulation advances that interest (so the regulation has to make sense and be relevant) - reasonable fit between state interest and regulation- is it narrowly tailored (to impact speech as little as is possible)

Print

- HISTORICALLY PROTECTED - MEDIUM PLENTIFUL - CHOOSE TO PURCHASE (newspapers, magazines, books), are very protected by the First Amendment (as we've seen throughout this whole course). Historically, we've always protected newspapers (per the First Amendment directly), and have never required publishers to get a license, register with the government, etc. Additionally, print as a medium is a nearly unending resource. It doesn't take much to print on a piece of paper. Now, distribution and readership gets complicated, but the actual print medium is very accessible.As a result, the government really can't regulate these without running afoul of the First Amendment. Therefore we say that print is the least regulated and most protected medium for speech.

Radio and tv

- RECENTLY REGULATED - SPECTRUM SCARCITY - INTRUSIVENESS - PUBLIC OWNERSHIP Historically, these were "new" mediums (radio became popular in the 1920s and 30s, television in the 1950s). The "instantaneous" nature of these mediums concerned people (the idea that radio and TV waves "beamed" into a house was seen as unsettling). Although we see this fear mongering with most new technology, this "newness" got built into law when the courts decided that radio and television were intrusive in a way that print wasn't. You had to go buy a newspaper! TV just magically was there. (We're of course ignoring the fact that you had to go BUY a television to have the magic waves beamed into your house...)Also, when these technologies were developed, there was a relatively limited spectrum where radio and TV could be broadcast from. This "spectrum scarcity" was part of the justification for the government to step in and assign channels to radio and television operators. The airwaves belong to the public- it was the government's duty to make these airwaves as productive and useful as possible, on behalf of the public. This is where the concept of PICON (public interest, convenience, and necessity) originated- that the FCC regulated the public airwaves in trust of the public.These were the justifications used to put the FCC in charge of radio and TV. Although the government shouldn't be interfering with viewpoints in terms of content, the FCC heavily regulates these mediums compared to print.

Review video

- advertising and commerical speech not protected orginally, took 1975 to rule it is protected - prior thought it was necessary not but interesting speech, just give sales information - court then recognizes value in advertising, ie price compare for information important - relatisticly there are social values: not just information, now they are creative and artistic, so no first amendment is counter intuitive - shift thinking useless, to something information consumers want and has social values from political and artisitc value - even though main intent is to buy goods and services - How ftc polices: - companies tend to voluntary where they made amendments, or consent agreements where FTC approaches them, then they make a good faith contract with FTC to not continue to do that

Reporting privileges video

- broader concept - do reporters have special rights to gather information - no they do not - no protection to how they gather - have right to print, but don't protect themselves in order to print it - ie pell v. where reporters don't have special rights - don't have classes of people who have and don't have right, treat them the same - while press have ability to publish, don't protect them more - confidential sources is pretty tricky - tied itno news function - no federal protection, but most states do in form of shield laws (most protective) - ethical discussion pro: journalists get info they couln't get otherwise, good relationsihps, reveal inforamtion, maintain integrity con: resonsbility to source and reader, reader is likely to trust if named and evaluate if good , always to extent really not an enforcing level of transparency with readers, and law enforcement every citizen duty to provide information if crime committend, so maintain info, that is bad because no helping

Why they are more common in the last three decades

-Advertising is a much larger industry than it used to be. Instead of focusing solely on product design, distribution, etc. many companies now routinely spend millions on advertising. - The government has taken a role in encouraging comparative advertising, where one brand demonstrates that it is better in a commercial (think the Pepsi/Coke taste test commercials). From the government's perspective, this is better for consumers, so they can make informed decisions when buying products. It also pits these companies much more directly against each other. - There has been an increase in damages (monetary rewards) for winning a false advertising case.

Reporting Privileges Review questions

1. Do reporters have special rights to gather information? 2. What are the pros and cons of reporters keeping confidential sources?

Avenues of net neutrality law: So is this our immediate future? Honestly, we don't know. There are a couple of avenues the law can go from here:

1. We get rid of net neutrality, forever, and likely pay more for the same internet services. 2. The new FCC Commissioners (when new ones get appointed), go back to enforcing net neutrality. 3. Congress passes a federal law protecting and defining net neutrality. (In April 2019 the House passed the Save the Internet Act, but since it has not been passed by the Senate, it is not law.) 4. The states put pressure on the federal government. As of the May 2018, 28 states had introduced bills to save net neutrality. Five state governors issued executive orders to protect net neutrality in their states, and 23 state attorney generals filed suit against the FCC. This map has not been updated since a year ago, but it gives you an idea of state reaction. Keep in mind, that since the FCC is in charge of issueing licenses for broadcast carriers, and managing common carriers for telecomm purposes, that the states are likely stepping into federal jurisdiction by passing these laws. This is one tactic to put pressure on Congress (similarly to states legalizing cannabis even though it is not legalized federally). This would mean that a citizen of California could not be charged more for content, but a citizen of Arizona could be.

The Internet Review Questions

1. What is net neutrality? 2. Why does net neutrality matter? 3. What is the current status of net neutrality?

When seeing how protective a shield law is, there are three important questions to ask:

1. What type of proceeding is happening? (civil trial, criminal trial, or grand jury investigation?) 2. Is the information important/relevant to the proceeding? 3. Can the information be obtained elsewhere?

Commercial speech review questions

1. Why do we protect commercial speech but regulate it? 2. How does the FCC police false or misleading advertisements?

FOOD LION & FRAUD

1992: two ABC reporters got jobs at Food Lion (submitting false resumes) - Used cameras to secretly record - Series of cases- was this fraud? EVENTUALLY no... why? - Did the grocery store suffer harm from its reliance on misrepresentation? NO - Was this trespass? YES

EX: FB & CONSENT AGREEMENTS

2011: "Facebook has agreed to settle Federal Trade Commission charges that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public." -FTC "Facebook is obligated to keep the promises about privacy that it makes to its hundreds of millions of users," said Jon Leibowitz, Chairman of the FTC. "Facebook's innovation does not have to come at the expense of consumer privacy. The FTC action will ensure it will not."

Sustantiation (power of FTC)

A Federal Trade Commission rule that requires an advertiser to prove the truth of advertising claims made about a product or service.

consent agreement

A consent agreement is a written contract between the FTC and advertiser, where the advertiser essentially promises to refrain from deception in the future. This is a promise on future actions, but is binding. The benefit of a consent agreement vs. voluntary compliance is that the FTC has to investigate enough to verify that there is a legitimate complaint about the substance of the ad (given the cost of ads, many companies prefer this). That being said, consent agreements are private, and not made available to the public, so companies don't lose face when they enter into them. Facebook received a historic $5 BILLION dollar fine in 2019. The reporting on this issue has been a bit misleading... the issue is Facebook not maintaining consumer privacy. But the reason they're being fined is that they entered a consent agreement about misleading consumers about their privacy policies in 2011. As part of this consent agreement, they entered into a sort of contract with the federal government, promising that they would fix their habit of lying to consumers about what they're doing with data. The last two years show that is not true... Facebook has not only continued to mislead consumers about privacy, they also broken their contract with the FTC. So even though privacy is the stated issue, Facebook received a $5 billion dollar fine from the FTC for breaking a consent agreement on a massive scale. So it is technically an ADVERTISING issue. This stuff matters and clients don't understand it well!

Suponea (in terms of giving up sources)

A court document that requires a witness to appear and testify or to produce documents or papers pertinent to a pending controversy. Hence, reporters are often asked to reveal information they have gathered but chosen not to publish or broadcast. Most of the time journalists comply with such requests. At times, however, they refuse. When this happens, those seeking this information often get a court order or subpoena to force the journalist to reveal the name of the news source or to disclose the confidential information. Or government agents may get a warrant to search a newsroom or a reporter's home to find the information they want.

Consent order or decree (power of FTC)

A document in which an individual agrees to terminate a specific behavior, such as an advertising campaign, or to refrain from a specific action, such as making a certain advertising claim.

Federal Communications Commission (FCC)

A five-member body appointed by the president whose function is to administer the federal broadcasting and communications laws.

588-590 The representation, omission or practice must be material

A material misrepresentation or practice is one that is likely to affect a consumer's choice of a product. In other words, according to the commission policy statement, "it is information that is important to the consumer." The FTC considers certain categories of information to be more important than others when deciding whether a claim is material. Express claims as to the attributes of a product are always considered material. Advertising claims that significantly involve health 590 and safety are usually presumed to be material. Information pertaining to the "central characteristics of the product or service" is usually considered to be material. Information has also been found to be material where it concerns the purpose, efficacy or cost of the product or service. Claims about durability, performance, warranties or quality have also been considered material.

False advertising: What to look for?

A misleading ad: Has relevant information missing. Implies untrue information. Disclaimers or disclosures are unclear or hard to find. Any claims must be supported. Specifically, health and safety claims must be backed by scientific evidence that can be independent verified by FTC scientists.

Printers Ink Statue (advertising)

A model law drafted in 1911 to control false or misleading advertising. Most states adopted some version of this model in the early 20th century. Such laws are largely ineffective because they are not normally enforced. State regulation of advertising predates federal regulation by several years. This fact is not surprising when you consider that at the time the public became interested in advertising regulation—around the early 1900s—the federal government was a minuscule creature 577 relative to its present size. Harry Nims, a New York lawyer, drafted a model law called the Printers' Ink statute (it was Printers' Ink magazine that urged passage of the law) in 1911.

Internet Access and Broadcast areas of concern

Access Broadband Infrastructure

Case Study: Verizon v. FCC (2014)

According to the federal court, the FCC "unreasonable interpreted sections of the Communications Act" by treating non-common carrier companies (broadband internet companies) like common-carriers. The key is... the court said that the sticking point is that the FCC didn't officially reclassify broadband companies as common-carriers. Per the court, if the FCC did reclassify broadband companies as common-carries then the agency would have the power to regulate net neutrality. In the aftermath of this case, people feared that net neutrality would go away. The FCC hadn't reclassified broadband companies as common-carriers, so it technically had no power to enforce it. Watch the Colbert Report clip below to get a humorous feel for the reaction to the Verizon v. FCC ruling. There was even a Change.org petition, asking President Obama to get the FCC to classify broadband companies as common-carriers. (President Obama issued a statement, clarifying that he couldn't order the FCC to do anything. But that he sincerely hoped that net neutrality would continue...)

FTC

Advertisements must have reasonable basis for all claims made Powers Practices affecting commerce Can issue trade regulation rule Civil penalties for knowing violation of litigated orders FTC can sue for victimized consumers

VOLUNTARY COMPLIANCE

Advertiser has already used advertisements Claim of deception made- can voluntarily pull ads

SUBSTANTIATION

Advertisers support claims made Prove truth to panel of experts

591-601 Substantiation

Advertising substantiation has been an important part of the FTC regulatory scheme since 1972. The basis of the program is simple: The commission asks advertisers to substantiate claims made in their advertisements. The FTC does not presume that the claims are false or misleading. The advertiser is simply asked to prove the claims are truthful. The substantiation process today involves panels of experts who scrutinize advertisements and target for documentation those claims that seem most suspect. The most recent commission policy statement on substantiation was issued in 1984. Under this policy, express substantiation claims, such as "doctors recommend" and "specific tests prove," require the level of proof advertised. Otherwise, advertisers will be expected to have at least a "reasonable basis" for claims in their advertising, wrote attorney Thomas J. McGrew in the Los Angeles Daily Journal.46 The degree of substantiation that will be deemed reasonable varies with "the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation . . . and the amount of substantiation experts in the field believe is reasonable," the policy statement said. Claims for health-related products like dietary supplements and weight-loss pills require substantiation, before the claims are made, by what the FTC calls "competent and reliable scientific evidence."

Federal regulatory agencies that regulate advertising

FTC- regulates interstate commerce, and interstate advertising FDA- advertising of prescription medications, medical devices, tobacco SEC- truthful information about businesses (assets, bankruptcy, company structure)

612-27 The changing philosophy

Although debate over First Amendment protection of broadcasting was never truly joined, a philosophy that justified a substantial regulation of broadcasting nevertheless existed, anchored by two seemingly immutable propositions. First, the broadcast spectrum is a limited transmission pathway. Not all who want to transmit radio signals can do so. The notion that there are a finite number of frequencies on which to broadcast and, in turn, that there are more people who want to broadcast than there are available frequencies is known as spectrum scarcity. Second, while private individuals might own the transmitters, the towers, the microphones and all the other paraphernalia that allow radio signals to be transmitted, the American people own the transmission path, the radio spectrum, through which the signals travel to the listener's radio set. As such, those who use the spectrum are bound to serve the needs of those who own the spectrum. So somebody had to decide who, among all those who sought to broadcast, should have that privilege. Rules were also needed to ensure that broadcasters met the needs of the spectrum owners. That is when the government stepped in, deciding who could and who could not broadcast, and establishing rules to ensure that those who did broadcast met their responsibilities to the people. The government called these responsibilities "meeting the public interest, convenience or necessity," or PICON, an acronym that became the code word to justify all the rules relating to broadcasting. And within PICON's critical concept of "public interest," the FCC traditionally has identified three major policy objectives that allegedly lead to its promotion: Competition Diversity Localism

Commerical Speech Doctrine pages 562-565

Although truthful advertising for lawful goods or services receives some First Amendment protection, the extent of that protection is more limited when compared with political speech. While political speech is at the top of a First Amendment hierarchy of expression and while speech that fits the Supreme Court's definition of obscenity falls completely without any First Amendment protection (see Chapter 13), commercial speech lies somewhere in between.7 Determining what constitutes commercial speech, however, is not easy. Courts still wrestle with this threshold issue, often defining it as expression that either is related solely to the economic interests of the speaker and its audience, or proposes a commercial transaction.

Telecommunications act of 1996

Amended Communications Act (1934) Addressed internet Relaxed media-cross ownership Loosened licensing regulations Result: Fewer media companies controlling more media The first amendment to The Communications Act of 1934 was the Telecommunications Act of 1996. Let that sink in for a moment- a law, written in 1934 when only radio was around, was used to regulate television, cable television, and the internet industries. The Telecommunications Act addressed the internet as an industry. It also, very importantly, relaxed regulations on ownership. This increased multiple-ownership (letting different media companies buy and sell each other), which led to consolidation. The end result of this law was fewer media companies. This chart shows this consolidation. The numbers are the same, though the primary media companies have shifted a bit as these companies have continued to buy and sell their media properties.

Contempt of the court (giving up sources)

An act of disobedience or disrespect to a judge, which may be punished by a fine or jail sentence. Finally, the court will usually require the plaintiff to show that there is no other source for this information, that the plaintiff has exhausted all other potential means of gaining this information. In 1979 the U.S. Supreme Court ruled that it was not an infringement of the reporters' First Amendment rights for the defendant to ask reporters what they were thinking about as they prepared the libelous story.24 Such questions may or may not involve confidential sources. The reporter who refuses to obey a court order and give the plaintiff critical information in a libel suit surely faces a contempt of court charge and potentially a fine and a jail sentence. But that is not all. In a few cases when a reporter has refused to reveal his or her source for a libelous story, the court has ruled as a matter of law that no source for the story exists.25 This declaration effectively strips away the libel defense for a newspaper or broadcasting station. In effect, the judge is saying that the reporter made up the story. This is not a common occurrence, but it certainly is a frightening one.

Litigated order (power of FTC)

An order issued by a government agency, like the FTC, requiring that a particular practice, such as a certain advertisement, be stopped.

bait-and-switch advertising

FTC prohibts An illegal advertising strategy in which the seller baits customers by an advertisement with a low-priced model of a product but then switches customers who seek to buy the product to a much higher-priced model by telling them that the cheaper model does not work well or is no longer in stock.

591-601 Guides and the Child Online Privacy Protection Act

As noted above, COPPA was adopted in 1998. Much has changed since that time in the way that digital technology can capture personal information from children under 13 years of age. Thus, in December 2012 the FTC adopted amendments to its COPPA rules to bring them up to date with mobile applications that collect "personal information" from minors on smartphones and iPads. The amendments took effect on July 1, 2013. Among other things, the FTC updated the definition of "personal information" to go beyond traditional items (names, home addresses, screen names, telephone numbers and Social Security numbers). Personal information now also includes photos, videos and audio files that contain a child's image or voice, as well as certain types of "persistent identifiers." Persistent identifiers include things such as Internet Protocol (IP) addresses and customer numbers held in cookies that: (1) can be deployed by a Web site operator or online service to recognize a user either over time or across different Web sites and online services; and (2) are used for functions other than or in addition to supporting 593 internal operations of the Web site or online service. Valid internal operations for which persistent identifiers permissibly may be used include things such as authenticating users and protecting their security. As described on the FTC's Web site, the 2012 amendments also expanded the definition of an "operator" subject to COPPA to include "a child-directed site or service that integrates outside services, such as plug-ins or advertising networks, that collect personal information from its visitors." In addition, the amendments updated the definition of a "website or online service directed to children" to encompass plug-ins or ad networks that have actual knowledge that they are collecting personal information through a child-directed Web site or online service. In addition, "verifiable parental consent" to collect a minor's personal information can now be obtained using electronic scans of signed parental consent forms; video-conferencing; government-issued identification; and alternative payment systems like debit cards and electronic payment systems that meet certain criteria.

591-601 Injunctions

Attorneys for the FTC can seek these restraining orders in federal court. An injunction is clearly a drastic remedy and one that the agency has said it will not use often. Spokespersons for the FTC have said that the agency will use the power only in those instances in which the advertising can cause harm, in those cases that contain a clear law violation and in those cases in which there is no prospect that the advertising practice will end soon. Attorneys for the FTC can seek these restraining orders in federal court.

History of telecomm review video

Biggest area- Medium specific jursiprudence - different with different regulation - idealized first amendment, different type s of speech, because of historical and practical info, we treat different mediums in different ways. - print not regulated, trickled down into other print like book and mags, has no say in who can print, unlike TV and radio onwership being assigned - complicated with internet, generally phone provider, question as to how it was going to be treated, 90's decded treated like print because not limited, so not regulated, ongoing discussion, -1966 widespread deregulation of onwership ie consolodation of 50 major to 6, is really direct effect of this act, allowing them to buy eachother, used to enforce competition, this act allowed all of that to be relaxed so they can buy - multiple ownership regulations, keep level of competitveness, purpose of local news, should access local news from many sources - instead of ap wire stories and one company, have radio and tv station, owned by different comapnies, have different news coverage which helps with bias and better sense of knoweldge - mutltiple ownership has been relaxed, fcc deciding no longer a source of local news, newspaper can buy radio ect. so really regulation are barring too much cosnolodation in large local markets with one single medium, and we are still stopping newspapers from owning each other. radio is seen as less significant now

Prometheus Radio Project v. FCC (did not discuss specifically in class, pg. 616-618 of the book)

But the FCC has modified other long-standing rules affecting ownership too, including controversial efforts in 2003 at relaxing ownership rules that also were rebuffed by a federal appellate court. Those 2003 efforts are described in the next section on the Prometheus 616 Radio Project case. Rules regarding the number of radio and/or television stations a single broadcaster could own and rules limiting the number of customers a multiple-system cable operator could serve were relaxed. The length of time a broadcast license can be held without being renewed was substantially lengthened. Details about most of the modified rules are outlined in subsequent sections of this chapter, but a great many regulations have simply been abandoned. Included were the following: Rules that restricted the major television networks from owning and syndicating television programs Rules that required broadcasters to formally ascertain the needs and interests of listeners and viewers so they could devise programming that best served these needs Rules that required broadcasters to report all sides of important public controversies in their community, the so-called fairness doctrine Rules that indirectly limited the number of commercial minutes that could be broadcast every hour Rules that barred one individual from owning both a radio and television station in one of the top 50 markets Rules that limited the rates a cable television provider could charge subscribers Rules that prohibited a television station from owning a cable system and a television station in the same market, or vice versa Rules that prohibited a television network from owning another television network Rules that required television stations to provide free reply time for opponents of political candidates endorsed by the station, and for people whose reputation or integrity was attacked by someone using the station Rules that prohibit a cable television system from carrying the signal of any broadcast station if the system owns a broadcast station in the same local market

B0RING V. GOOGLE INC. (2010)

Google employees drove onto a private road Took pictures for Street View Regardless of reason, "pure" trespass Reporters need permission to enter private property

FCC powers [multiple ownership regulation]

Cap on number of broadcast companies Marketplace of Ideas concept: more voices = more truth Allowed for more cross-ownership over time (different markets) The FCC also sets multiple ownership regulations to try to preserve local news in geographic markets. These rules stipulate how many radio, television, and newspapers a company can own. In particular, it tends to restrict ownership across mediums (one television company shouldn't own all the newspapers in a town). The textbook goes into a lot of specifics here, so this is what you need to know about these guidelines. In 2016, the FCC updated them so that: - There is no restriction on newspaper/radio cross-ownership.- There is no restriction on radio/television cross-ownership. What does this change? From the FCC's perspective, radio no longer source for local information that people go to. It is not in public's interest to maintain diversity in terms of radio as a medium, so it is okay for other media companies to buy up failing radio stations. This will lead to even more media consolidation in local markets. There are still strict limitations on television and newspaper companies cross-owning each other. Watch this video on ways companies get around even the few limitations on media consolidation:

Commercial speech doctrine

Central Hudson test May regulate truthful advertising for legal goods/services IF: Substantial state interest Regulation advances that interest Reasonable fit between state interest and government regulation (narrowly tailored)

Civil vs. criminal cases for sheild laws

Civil cases- most likely to recognize refusal of testimony Consequences for refusing to cooperate when ordered? Contempt of court, fine, possibly jail Grand jury proceedings- investigate possible criminal conduct, investigatory & accusatory No protection for refusal to testify Consequences: jail time Criminal trials Depends... Consequences: jail time Civil cases are the most protective of journalists trying to shield confidential sources. Since civil cases usually result in damages (money), if the defendant loses, the stakes are lower than a criminal case. That being said, if the source the journalist is protecting has key information, a journalist may still be required to provide the source's identity or any notes they have. If a journalist refuses, they face contempt of court, a monetary fine, or possibly jail time. Criminal cases are much more serious. This is a direct conflict of the Sixth Amendment. If a journalist has any relevant information about a criminal trial by way of confidential sources they will almost certainly be required to provide it. Now sometimes, law enforcement just wants an easier way to gather information (sometimes called fishing for information). If the information the journalist has isn't integral to the criminal trial, journalists do have protections under most state shield laws. Grand jury investigations are essentially the preliminary investigation prior to a criminal trail. They investigate the circumstances, see if there's enough evidence for the state to move forward, and make an accusation against the defendant that begins a criminal trial. The only time the Supreme Court has ruled on shield laws and the reporter's privilege to keep confidential sources is in the context of grand jury investigations. In Branzburg v. Hayes (1972), the Supreme Court ruled that journalists do not have any special rights to keep sources confidential in grand jury situations. As a result, while shield laws provide protections for journalists in civil and criminal trials depending on context, there are no rights to confidential sources in grand jury scenarios. Refusing to provide sources or information will result in jail time for journalists.

Commercial Speech and Regulations

Commercial speech is treated like indecency; it is protected by the First Amendment but can be regulated in ways most other speech can't. the content in this folder delves into why that is the case and the federal agencies that regulate commercial speech.

FEDERAL COMMUNICATIONS ACT OF 1934

Created FCC - Dominance of NBC, CBS, and ABC - Regulated radio...

Medium specific jurisprudence

Different mediums have different levels of FA protection Why? Physical differences acknowledged Historical regulations acknowledged Before we start talking specifically about how we regulate telecommunications, we need to talk about this idea of medium specific jurisprudence, where specific mediums are treated differently in terms of how much the government regulates them.Some of this is counter-intuitive when you think too much about it. The reasons why don't really hold up under close scrutiny. But this is how the law and government treats these mediums, mostly due to historical norms and technological differences.The four mediums we are looking at are print, radio, television, and cable.

FTC & DISCLOSURE: INFLUENCERS

Disclose when you have any financial, employment, personal, or family relationship with a brand. If you received anything of value, disclose Disclosure must be in message itself Can't be in "about" section Don't bury in hashtags or links Ex: #blessed, #happy, #bosslife, #sponsored, #sunny Vs: #sponsored Disclosure must be in video

Commercial Speech

Economic interests of speaker Proposes a commercial transaction Not just price points and deals... creative and artistic expression too (culture) speech where the speaker is motivated by economic interests, or speech that proposes a commercial transaction. Originally, the courts took a very dim view of commercial speech. It wasn't even considered speech that fell under First Amendment protection until 1975. The courts thought that advertisements proposing transactions were a nuisance, and not worthy of constitutional protection.

Lawful orders

Failure to obey lawful orders- reporters must adhere to rules set out by first responders Press does not have special access to accident scenes refers to obeying rules set out by first responders in emergencies. This is generally medical, police, or fire personnel. If there's a car crash or crime scene for example, reporters do not have a special access to these places. If they refuse to leave when asked they can be arrested.

The federal communications commission

Federal Communications Commission: Federal executive agency Regulates broadcast Only federal gvt. can regulate The federal executive agency that regulated broadcast (and somewhat, media) is the Federal Communications Commission (FCC). The federal executive agency that regulated broadcast (and somewhat, media) is the Federal Communications Commission (FCC). The FCC was created by The Communications Act of 1934. This law set the foundation for the rights and powers that the FCC could enact over media, and essential dictated the structure of broadcast regulation for decades. Only the federal government can regulate and license broadcasters. This means that only the FCC can grant station licenses, make policies about content (ex: indecency on prime time television), etc. The state government has no say in broadcast regulation.

Non speech

First Amendment does not protect false/misleading ads First Amendment does not protect illegal goods/services=

Legality of confidentiality - Cohen v. Cowles (1991)

First Amendment does not protect journalists from breaking laws IF journalistic breach results in direct harm Reporters can be sued for breaking confidentiality Promissory estoppel

LIMITS OF THE PRESS CLAUSE

First: The constitution gives no special rights to journalists Press have no special rights not granted to the public Access to trials Access to records Commenting on public officials Testimony at trial Subject to search warrants Follow administrative procedures General business regulations

Internet

For a long time, the courts and the FCC wasn't sure what to do with the internet. Although it seems intuitive that it is print (most content is typed... especially in the 1990s), internet service is generally distributed by telecommunications companies (distributed by phone/internet companies, often as a bundled deal). This is because dial-up internet used phone lines (you couldn't be on the phone and the internet at the same time, many homes got a separate dedicated phone line for internet), and broadband internet (which most of us use for high-speed internet today), uses the same coaxial cables that cable television does (really, the exact same).Finally, the Supreme Court ruled that as a medium, the internet would get treated like print.This was great in terms of content- it meant that the internet was a lot more protected from government regulation (this is why we protect indecency so much on the internet), but is still proving difficult from a regulatory standpoint, particularly with net neutrality (which we will talk extensively about in Part 2 of this module).

Vaping example

For example, the vaping company Juulis facing legal scrutiny not only for the safety of it's product, but for targeting children with its advertising for the product. The Masachusetts Attorney General is pursuing legal action against the company for putting teen-targeted ads at: "educational sites like basic-mathematics.com, coolmath.com, math-aids.com, mathplayground.com, mathway.com, onlinemathlearning.com, and purplemath.com. and socialstudiesforkids.com. [Also] sites targeted to young girls such as dailydressupgames.com, didigames.com, forhergames.com, games2girls.com, girlgames.com, and girlsgogames.com. [And] sites geared to high school students looking at colleges, like collegeconfidential.com and sites aimed at much younger children, including allfreekidscrafts.com, hellokids.com, and kidsgameheroes.com."

Fraud

Fraud- knowingly false statement of a significant fact that the other party relies upon Ex: reporters lying about background to get hired/undercover or providing knowingly false significant statements to another party that they rely on, is something reporters can run into if they try to go undercover. While it would be a good idea to know the laws of the state you end up working in, the main focus of fraud is how substantial was your lie. Someone's name is probably not substantial. Filling out an employment form and getting hired as a pretense so you can do an expose report is much more likely to result in a fraud charge.

Harassment

Harassment- systematic unwanted actions Injunctions, restraining orders, etc. Reporters, especially paparazzi, can also get in trouble with harassment laws. Harassment is systematically bothering someone and can result in injunctions, restraining orders, etc. States vary pretty strongly on harassment laws. States like California have much stronger harassment laws because of the high number of celebrities who live there.

FCC v. Pacifica (pg. 635 of the book)

How did it come to this point? It began about 35 years ago with a case called FCC v. Pacifica Foundation. The Supreme Court ruled in 1978 that it was not a violation of the First Amendment to bar indecency during certain times of the day from the airwaves. The high court upheld an FCC ruling that radio station WBAI in New York City had violated the law when it broadcast during the afternoon a recorded monologue by comedian George Carlin.25 The monologue, called "Seven Dirty Words," was broadcast on the listener-supported station during a long discussion on the English language. The FCC said it was impermissible to broadcast "language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times when there is a reasonable risk children may be in the audience [emphasis added]." The agency said it was unlikely children would be listening or watching after 10 p.m. and before 6 a.m., and it later designated this eight-hour block of time a safe harbor for the broadcast of adult material. Although Carlin died in 2008, his legacy with the FCC lives on today, haunting broadcasters that air indecent content. In the years following this high court ruling, the FCC refined its policies on indecent broadcasts. It was consistently challenged in court, but generally the agency's policy weathered these challenges.26 Then in 2001 the commission published a new and fairly comprehensive policy statement relating to the broadcast of indecent matter.27 The commission's definition of indecency remains the standard: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs. Before finding a broadcast indecent, the FCC must make two determinations. First, the material must fall within the subject matter scope of indecency; that is, it must depict or describe sexual or excretory organs or activities. Second, it must be patently offensive as measured by contemporary community standards for the broadcast medium. The standards are not local and do not encompass any particular geographic area. The standard is that of an average broadcast viewer or listener.

Policing advertising

IF the FTC decides that there is an issue with a false or misleading ad, they have several actions the agency can take. The easiest is for the advertiser to voluntarily stop running the ad using self-regulation. Advertisers like to avoid the appearance that they are lying to their customers, so most wish to avoid the bad press that comes from a FTC investigation or fine. Similarly, most companies opt to enter into a consent agreement.

Net Neutrality Video

Idea that we should treat internet content the same It shouldn't matter if you use google or bing, you shouldn't have to pay more. also idea if shouldn't matter if you go to netflix or Youtube Shouldn't matter what you accessing it should be all treated the same Net neturality is confusing because we always have had it hard to imagine what would happen if it goes away always have had net neutrality in terms of why it matters, important media mergers from a telecommunications perspective, best interest to want to prioritize content for example at and t owns directTV, you can watch it for free on your phone, so not using your data. Zero Rating- skirts net neturality Imageine if all the internet did this and it was free to access walt disney if you own verizon All content should be treated the same, and priority would be given to internet companies to certain types of content ie marvel free DC isn't Pay package on top of service, so you would pay for internet speed and in order to access facebook you pay extra surcharge if it goes away, in may of 2018 it has been gotten rid of by FCC, but not implemented so we still see it because of red tape and FCC may change minds, states are passing laws, new commisoners might want to reinstate it techically it is not enforced and has been up in the air for many years, it is an unstable atmosphere and really counterproductive, no one knows what to actually do When we talk about ensuring stablility, telecomminications is really unstable still, we know how it is supposed to be regulated but still nuances

If an advertiser refuses a consent agreement

If an advertiser refuses a consent agreement, FTC policing escalates. There can be litigation and fines, all of which result in bad publicity. This is where things like substantiation, comes in, where companies who are contesting that their ads are misleading, are asked to bring in their scientific evidence to be verified. This verification is done by a panel of FTC experts. Technically, the FTC can also implement corrective advertising (where companies are forced to publicize a correction to the misleading ad) or an injunction (essentially a restraining order). Both of these are relatively unusual in the modern age. Online marketplaces like Amazon has led to a rash of unsafe products though, so we're seeing more corrective ads and injunctions. Most recently, the FTC and FDA have pursued action against multiple companies selling fake coronavirus cures...

Net Nuetrality now

If you're scratching your head wondering how this is different, the short answer is, it isn't. We've been operating under net neutrality since the internet began. It is the the continued survival of net neutrality that is current in question. What would happen if net neutrality went away? Well, consumers and content providers (like Netflix, and Google), would be charged a lot more for the same amount of internet. This debate gets complicated because telecomm industry professionals cloud the issue. In reality, the loss of net neutrality would almost certainly lead to cost increases for consumers, even if it is passed down different ways. If net neutrality went away, ISPs would likely make content providers like Netflix pay more to connect to the internet (and connect customers to them using the internet). Netflix would have to pass those costs on to consumers, but consumers would likely blame Netflix, not the internet companies, for this price chan

Mislead must be material

Impact choice Product characteristics Health/safety claims Purpose of product Cost

What is commercial speech

In 2014, digital marketing accounted for $50 B in revenue, with $24 B being spent on social media platforms like Facebook. Despite this enormous amount of time and resources devoted to commercial speech, it ranks rather low in terms of First Amendment protection. Per our First Amendment chart, commercial speech (ie: advertising), gets treated like indecency, where it is protected by the First Amendment, but can be regulated in ways most other speech can't.

The current state of Affairs

In December, 2017 the FCC voted (with new commissioners in place) to stop enforcing net neutrality. The commissioners before them re-defined the internet as having common carrier status so that the FCC could, any any time, enforce net neutrality and preserve the internet as-is. The existing FCC commissioners decided not to. So where does this leave us? Technically, as of April 23, 2018, net neutrality protections expired. (Even more technically- Congress can overturn this decision, but it unlikely to, and there is some administrative red tape, BUT, we essentially do not have net neutrality.) In countries without net neutrality, the internet looks like most cable packages, where you pay a base fee, then you pay extra to access certain types of content. Here is one model for Portugal, which does not have net neutrality.

Telecommunications overview

In Telecommunications, we will look at the more historical side of regulating broadcast (radio and television), before turning to the Federal Communication Commission's treatment of the Internet, specifically focusing on net neutrality. Net neutrality is an ongoing legal issue of national importance and will decide almost every element of our we communicate with the Internet in the foreseeable future.

LAWSUITS Types/Forms

Lanham Act- stops unfair competition in marketplace Legal action for false advertising FTC can sue on consumer's behalf... Competitor-vs-competitor lawsuits common Advertising more prominent (disposable income) Comparative advertising encouraged Increase in damages

Policing ads (how does the FTC police ads) (pg. 591-601)

In dealing with false advertising, the FTC's greatest enemy is the time needed to bring an action against an advertiser. Since advertising campaigns are ephemeral, the FTC often has difficulty in catching up with the advertiser before the short-lived campaign has been replaced with something else. But if time is the greatest enemy, publicity is the FTC's strongest ally. Advertisers don't like the publicity that accompanies a charge of false advertising. Bad publicity can cost a company millions of dollars. In addition, consumer reaction to the charges often results in lost sales as well. In addition to the informal sanction of publicity, the FTC has a wide range of remedies to deal with advertising. Let's briefly look at this arsenal. Guides and the Child Online Privacy Protection Act Voluntary compliance Consent agreement Litigated orders Substantiation Corrective advertising Injunctions Trade regulation rules

News gathering problem areas

In newsgathering, press must abide by existing laws Problematic areas: Trespass Harassment Fraud Lawful orders Taping & recording

Consumer protections

Now, in the vein of consumer protections, false or misleading advertisements are not protected under the First Amendment. Ads that convey untrue information, or mislead the public, are considered a threat to the public's health and safety.

Aftermath of Verizon v. FCC

In the wake of Verizon v. FCC (2014) the FCC decided to propose new agency rules... that would go against net neutrality. The FCC is particularly vulnerable to lobbying interests, and they seem to have bowed to the pressures of the telecomm industry. Major companies like Microsoft, Facebook, YouTube, Google, and Skype all protested (as did two of the five FCC commissioners who got outvoted). In 2015, the FCC made an about face and proposed new regulations that were pro-net neutrality. As a part of these new regulations, broadband companies were designated as common-carriers. Broadband providers have and will continue to sue to protest this (likely until it is heard by the Supreme Court). In 2016 the U.S. Court of Appeals for the D.C. Circuit upheld the reclassification as broadband providers as common-carriers. In December, 2017 the FCC voted (with new commissioners in place) to stop enforcing net neutrality. The commissioners before them re-defined the internet as having common carrier status so that the FCC could, any any time, enforce net neutrality and preserve the internet as-is. The existing FCC commissioners decided not to. So where does this leave us? Technically, as of April 23, 2018, net neutrality protections expired. (Even more technically- Congress can overturn this decision, but it unlikely to, and there is some administrative red tape, BUT, we essentially do not have net neutrality.) In countries without net neutrality, the internet looks like most cable packages, where you pay a base fee, then you pay extra to access certain types of content.

591-601 Voluntary compliance

Industry guides apply only to prospective advertising campaigns, events that have not yet occurred. The next remedy on the ladder is voluntary compliance and is used for advertising campaigns that are over or nearly over. Imagine that a company is nearing 595 the end of an advertising campaign in which it has advertised that its mouthwash can prevent a consumer from getting a common cold. The FTC believes that the claim is deceptive. If the advertiser has had a good record in the past and if the offense is not too great, the company can voluntarily agree to terminate the advertisement and never use the claim again. In doing this, the advertiser makes no admission and the agency no determination that the claim is deceptive. There is just an agreement not to repeat that particular claim in future advertising campaigns. Such an agreement saves the advertiser considerable legal hassle, publicity and money, all especially desirable since the advertising campaign is over or almost over. This remedy is infrequently used.

Access

Internet is a weird topic when it comes to broadcast. We differentiate it under medium specific jurisprudence, saying that it is the same as print, but traditionally broadcast companies (especially those providing television and phone services), also provide internet. How does this all get regulated? The FCC has the power to regulate the so-called last mile of the internet... or the "line" that connects end users (businesses and individuals) to ISPs (internet service providers). This is a simplified version of the internet, and also the most "visible." There are large companies that conduct most of the internet. The companies end users interact are the most visible, and some of the smallest parts of the internet. This is the section that FCC policies apply to. Here is a diagram showing this hierarchy a bit better:

Information and journalists

Journalists have access to non-official information Off the record government sources Non-government information (criminal?) Often compelled to provide information to authorities Information requests by authority figures (ex: police): Comply Compel Subpoena- force journalists to reveal information Warrant- search newsroom/home for information

Ethics and shield laws

Let's talk about the ethics for a moment on the issue of confidential sources. There are some different aspects to this. First, why do journalists protect confidential sources? From a practical standpoint, journalists rely on these sources to get information that would not be available otherwise. This information is generally dependent on their ability to keep the source's identity anonymous. If journalists began revealing their sources, even because of a subpoena, they would lose most of their other sources. But why do sources want to remain anonymous? Sometimes these sources have participated in the criminal activities that they are giving information about and they want to avoid legal consequences. Sometimes they are acting as whistleblowers but don't want to lose their jobs. Sometimes they just don't want their name associated with the information they are responding. Journalists have a responsibility to their confidential sources that must be balanced with their responsibility to have strong, transparent reporting. Although they have made promises to keep their sources anonymous, good reporting rests on being able to present facts to readers and let them decide. A named source is always better for readers- it lets them understand the context of the information better. Finally, there is an ethical responsibility for all citizens to help law enforcement create a stable, law abiding society. Despite shield laws, there are some complicated ethical components that accompany the issue of confidential sources. This is one reason why there is no federal shield law. Additionally, there are some ambiguities with shield laws that the state laws mostly ignore, but which would get much more complicated at the federal level. Namely, how do you define a journalist? Is someone who works for The New York Times a journalist? Someone who works for Buzzfeed? A college newspaper? No other profession have in-built constitutional protections. Especially such a hard to define profession.

FCC powers [License]

Licenses radio and television License for new station Operational changes - Increasing power Changing antenna location/height Selling/transferring ownership The FCC also licenses broadcasters. If you broadcast on radio or television in the United States (commercial, non profit, low power, etc.) you must have a license from the FCC. Take a moment to think about this- the FCC chooses (on behalf of the American people), which companies get to broadcast to the public.

Constituion and the press

Limited right to gather information Journalists have no special privileges Pell v. Procunier (1974) Houchins v. KQED (1978) Richmond Newspaper v. Virginia (1980)

Powers FCC

Mergers Regulation Licensing

Convert consolidation

Merging newsrooms Not "official"

Misleading ads

Misleading ads: Look at entire ad Overall impression vs. literal meaning

Defining False Advertising

Misleading ads: Relevant info missing Imply untrue info Disclaimers/disclosures unclear or not prominent Claims must be supported Health and safety = scientific evidence

Cable

NO SPECTRUM SCARCITY - LESS INTRUSIVE- PAY FOR Cable falls somewhere in the middle. By the time cable came out in the 1960s, people were more used to the idea of broadcast. Additionally, cable used new technology at the time (it ran through coaxial cables, still used today) instead of spectrum space so there was no issue of scarcity. It was also a subscription service that people paid extra for, so the government reasoned that consumers who had it, expected it to be intrusive into their homes. The FCC still regulates this medium, but less strictly than radio or TV (hence why there can be more adult content on cable channels).

Commercial speech and the law

NOT protected by First Amendment until 1975 Now- protected but regulated Why protected? Cultural works (even though the intent is to sell products) can be a form of artistic expression Why regulated? Health and safety of consumers

multiple onwership 2017

No more television/newspaper cross-ownership ban in market Original argument for a ban: keep local news varied Currently: Sept. 2019- change "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities." -Federal Judge National radio ownership- no limit Radio is no longer a source of local news Cannot merge top "four" TV networks (ABC, CBS, Fox, NBC) Why?

BRANZBURG V. HAYES (1972)

No special right for journalists to withhold confidential sources

SPECIAL CASES: TESTIMONIALS

Reflect honest opinions Celebrity endorser must agree Consumer endorser must agree (ex: actual consumer) Expert must be expert

Puffery (Advertising)

Often expansive hyperbole about a product that does not contain factual claims of merit. Normally, puffery is permitted by the law (e.g., "This is the best-looking automobile on the market today"). A type of false advertising. "The commission generally will not bring advertising cases based on subjective claims (taste, feel, appearance, smell)," according to the guidelines. The agency believes the typical reasonable consumer does not take such claims seriously and thus they are unlikely to be deceptive. Such claims are referred to as puffery and include representations that a store sells "the most fashionable shoes in town" or a cola drink is "the most refreshing drink around."

Most to least protected speech

Political & Social expression Commercial expression and Nonobscene, sexual expression Fighting words, Obscenity, False Advertising

FCC powers [address mergers]

Power to review proposed mergers between media entities (w/ DOJ) Lets look specifically at some of the powers the FCC has. First, the FCC has the power to address mergers involving the media (usually with the DOJ- Department of Justice). Why? Well, the government has some control over high-level mergers under the idea of antitrust (making sure there isn't a monopoly in certain industries). This is seen to be of particular importance with media, since media is where most of us get our news from. If only one company owned all the newspapers, radio stations, and television stations in the country, we as viewers wouldn't get local news, and we couldn't get any varied news. Various cell phone companies (Sprint, T-Mobile, AT&T), have been trying to merge for years. The argument here is that competition is needed to help keep companies competitive with each other for consumer benefit- keep costs down, technology improved. One of the issues with our internet in the United States is that we have seen very little in the way of upgrades to a dated telecommunications infrastructure. As a result, the U.S. has much slower internet at higher costs than many equitable countries. We often hear free-market as a counter here- let capitalism do its work. In reality though, the telecommunications landscape has been dominated by uneven merger deals and subject to government regulation the whole time. The current landscape is a result, not of free-market capitalism, but (arguably) poorly managed regulation. We're also seeing media content producers and media distributors buying and selling each other with increased regularity. This means that companies that distribute media (telecommunications providers) are buying content producers (television, radio, newspaper, internet companies). We are increasingly seeing these companies try to offer prioritization for their content. For example, if you were an AT&T customer and you had to use data to view Netflix videos, but AT&T bought YouTube and said those videos didn't count against your mobile data caps... which site would you use? Is this ethical? Is it free-market capitalism when the FCC has to approve a merger between AT&T and YouTube? Leads to this issue of Zero Rating...

PRESS CLAUSE TAKE-AWAYS

Professional press: No clear special privileges, especially in an attempt to insulate itself from regulation/other requirements More protections for its function as an informational institution

Lawsuits

Relevant to the idea of regulating commercial expression, the Lanham Act (1946) (which mostly deals with trademark), has a section about legal action for false advertising. Most relevant to this section, the act has allowed/encouraged competitor-to-competitor lawsuits. These lawsuits involve companies suing each other and claiming that their competitor's ads are false or misleading. A lot of the litigation involving false advertising isn't done by individual consumers, or even the FTC, but competitors trying to put each other out of business.

FCC Powers [Restrictions] sanctions

Remedies for violations: Warning Monetary fine Conditions on license renewal Revoke license

License renewal

Renewed every 5/8 yrs Consider: Public's interest No serious violations No established pattern of abuse

INJUNCTIONS

Restraining orders against misleading ads Drastic- rarely used

History of telecom regulation

Review Questions: 1. How has medium specific jurisprudence shaped regulations of media? 2. What is the long-term impact of the Telecommunications Act? 3. Why do multiple ownership rules matter?

trade regulation rules (TRRs)

Rules adopted by the Federal Trade Commission that prohibit specific advertising claims about an entire class of products. For example, makers of fruit drinks that contain less than 10 percent fruit juice cannot advertise these products as fruit juice.

Corrective Advertising (Power of FTC)

Rules established by the Federal Trade Commission that require an advertiser to correct the false impressions left by deceptive advertising in a certain percentage of future advertisements.

Reporter Privilege and sheild laws

Shield law- statutory protection for reporter's privilege Tension between press's First Amendment rights & public's Sixth Amendment rights Who is a reporter? Creating special "class" of citizens Although journalists don't have special newsgathering rights, they do tend to deal with more information and sources of information than everyday citizens as an integral aspect of their jobs. Oftentimes journalists have long-standing relationships with sources (government contacts, whistleblowers, etc.). Sometimes these sources give them information on illegal activities that law enforcement wants to know more about. Most journalists prefer to keep their sources confidential, not making names public. When law enforcement tries to compel information about confidential sources journalists are put in a difficult professional quandary: on one hand cooperation with law enforcement is a fundamental requirement in the United States, on the other hand there are ethical considerations with long term negative impacts for revealing a confidential source. Under the Sixth Amendment of the Constitution, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district..." When there is a criminal case being tried, defendants in those cases have constitutional rights that must be protected. Journalist's First Amendment rights (which get very, very fuzzy when we start talking about the right to keep confidential sources...) have very little sway against a defendant's right to a speedy and fair criminal trial. When law enforcement tries to get information about confidential sources they usual go about it in two ways. First, they request the information formally and journalists can comply. Or, they journalists refuse to provide information and law enforcement tries to compel it using either a subpoena (where journalists are legally required to reveal the requested information), or a warrant (where law enforcement is given permission to search the journalist's house or newsroom). Do journalists have any protection for shielding their sources? Federally, not really. Most states do protect confidential sources to some extent with a set of laws known as shield laws. Shield laws shield reporters who are trying to protect confidential sources. The shielding depends heavily on what type of judicial or law enforcement proceeding is at stake.

Where do sheild laws come in?

So where do shield laws come in? Legal gray area ~ 40 states have shield laws Rest have constitutional/common law protections

591-601 Litigated orders

Sometimes an advertiser doesn't want to sign a consent agreement. It may believe that the advertising claim is truthful or may simply want to hold off any FTC ban on certain kinds of product claims. In this case the commission can issue an order, usually called a litigated order, to stop the particular advertising claim. Staff attorneys at the FTC will issue a complaint against the advertiser, and a hearing will be held before an administrative law judge. The judge can uphold the complaint or reject it. In either case, the losing side can appeal to the federal trade commissioners for a final ruling. If the advertiser loses this final appeal before the commissioners, he or she can appeal the litigated order in federal court. Failure to abide by the provisions of a litigated order can result in the advertiser facing a severe civil penalty, as much as $10,000 per day. In the long-running (11 years) Geritol case, for example, the commission issued an order in 1965 prohibiting the J.B. Williams Company from implying in its advertising for Geritol that its product could be helpful to people who complained that they were tired and run-down.44

Taping and recording

State laws differ regarding taping & recording Audio recording where you are party: One-party consent states (Idaho) All-party consent states Interstate phone calls? The stricter law applies (can be liable in the all-party consent state) Almost half of states prohibit eavesdropping (audio recording without knowledge from people IN conversation) Many states prohibit secret videotaping Reasonable expectation of privacy Record police/public officials? Many states protect in public BUT... Instances of police arresting Every state has its own requirements for taping and recording secretly. Some states are one-party consent states, where only one person in a conversation needs to know it is being recorded. Some states are all-party consent states, where everyone involved needs to know that they are being recorded. Generally, audio recording is more legal than secret videotaping. Most states prohibit secretly recording video with audio. Many so-called nanny cam devices record video but no sound for this very reason. The Reporter's Committee for Freedom of the Press has a guide that walks you through a state by state overview if you are interested: https://www.rcfp.org/reporters-recording-guide/state-state-guide

Shield Law

State statutes that permit reporters in some circumstances to shield the name of a confidential news source when questioned by a grand jury or in another legal forum. While the ultimate impact of this decision is yet unclear, one thing definitely is certain: It represents a substantial rethinking of the Branzburg decision by an extremely well-respected jurist. As of August 2017, 39 states had enacted a statutory protection called a shield law that offers reporters some (although not usually absolute) protection against being forced to reveal the identity of confidential sources. Figure 10.1 shown later in this chapter shows a map indicating which states have shield laws. Appellate courts in all of the remaining states, except for Wyoming, have recognized various kinds of constitutional and/or common-law testimonial privileges for reporters.

CORRECTIVE ADVERTISING

Stopping ads insufficient Misleading information remains Advertiser forced to publicize

Reasonable consumer

Target ad, target audience = consumer Not every interpretation Disclaimers must be clear Every day items = less scrutiny Subjective claims ok = puffery

Testimonials

Testimonials have special requirements per the FTC. Celebrities, doctors, and even everyday people who support products in advertisements have to follow certain guidelines. Most importantly, they have to reflect the honest opinions of the people giving testimonials. This can actually get people giving endorsements in trouble. For example, celebrities have lied during testimonials, then gotten caught in public saying they disliked the product. As long as the company didn't know, it will be the celebrity who gets in trouble. Any consumers/celebrities have to be actual consumers of the products. If actors are used to fake being a consumer, there has to be fine print ("actors were used in this commercial..." or "real customers portrayed..." etc.). Consumers/celebrities need to use the product they are endorsing for the duration they are paid to endorse it. Any experts have to actually be the kind of experts they are representing. For example, even though I have a PhD, I couldn't wear a white doctor's coat and claim to be a doctor as I endorse medical products.

FCC Powers [operation changes]

The FCC even has to approve any operation changes to a station (increasing the power/distance of a broadcast, changing antenna location/height, selling/transferring ownership). Licenses have to be renewed every 5/8 years depending on the medium, and licensees have to avoid serious violations in terms of content/reglulations (ex: airing indecency content regularly). Companies can be fined by the FCC, lose their license, etc.

Promethius cont.

The FCC's 2003 attempt to loosen up ownership restrictions met with stiff judicial resistance when the new rules were challenged in 2004 before the 3rd U.S. Circuit Court of Appeals by a number of citizen-activist groups. The case Prometheus Radio Project v. FCC2 affirmed the power of the FCC to regulate media ownership. But, more important, it also held that "the Commission has not sufficiently justified its particular chosen numerical limits for local television ownership, local radio ownership, and cross-ownership of media within local markets." For instance, the appellate court held that while the FCC has the authority and power to repeal its ban that prohibits common ownership of a full-service television broadcast station and a daily public newspaper in the same media community (known as the television/newspaper 617 cross-ownership rule), the numerical limits that the FCC adopted in its place in 2003 on matters such as cross-ownership of newspapers, radio stations and television stations (see pages 624-625) were not sufficiently justified by the FCC. The appellate court instructed the FCC either to come up with additional justifications for its efforts to relax media ownership rules or to modify them. Until that time, the appellate court continued to stay the enforcement of the new rules (to put them on hold, as it were)—it previously had issued an emergency order in September 2003 preventing the FCC from enforcing the rules. As Bill Carter wrote in The New York Times, "frustration was the dominant emotion among media company executives" when they read the decision.3 Those enjoined rules, for instance, would have allowed a media conglomerate to own a daily newspaper, three TV stations, eight radio stations and a cable system in the same city. The Prometheus Radio Project decision, however, left intact the 39 percent "national audience reach" limit (see later this chapter) on television ownership adopted by Congress in 2004, thus allowing Viacom and News Corp., both of which already owned enough stations in 2004 to reach that cap, not to have to worry about selling off or divesting themselves of any stations. The term "national audience reach" is defined as the total number of television households reached by a single entity's stations, with UHF stations attributed with only 50 percent of the television households reached (known as a "50 percent UHF discount"). In addition to this 39 percent rule for national audience reach remaining in effect in the realm of television, there continues to be no limit on the total number of radio stations that a single entity/licensee can own on a national basis. In 2005 the U.S. Supreme Court declined, without comment, to review the 3rd Circuit's opinion in Prometheus Radio Project. This meant that the 2003 changes enjoined by the 3rd Circuit would stay enjoined and thus not go into effect. As mentioned above, in 2011 the 3rd Circuit in another Prometheus Radio Project case (known as Prometheus II) rejected the FCC's relaxation of the newspaper/broadcast cross-ownership rule in 2007 because the FCC had failed to give adequate public notice when it tried to make the change that time. In June 2012, the U.S. Supreme Court denied several petitions for writs of certiorari filed by large media companies and organizations—Tribune Co., Media General, Inc. and the National Association of Broadcasters (NAB)—asking the Court to revisit the 3rd Circuit's 2011 opinion. The denials marked another blow to broadcasters' efforts to loosen the FCC's ownership limits and, in particular, the newspaper/broadcast cross-ownership rule that generally prohibits common ownership of a full-service broadcast station and a daily newspaper in the same market. That rule dates back to 1975 and a very different media marketplace, long before the proliferation of cable, satellite TV and the Internet. In response to the high court's decision, an NAB representative said it was "disappointed the Supreme Court declined to review rules that limit local broadcasters' ability to compete with our national and multinational pay programming competitors." In brief, broadcasters claim the old rules make no sense in the Internet era and when new technologies allow access to news content across multiple platforms. 618 The saga continued when the 3rd Circuit issued yet another opinion in Prometheus Radio Project v. FCC4 (known as Prometheus III) in May 2016. This time, the plaintiffs—which included, among others, Prometheus Radio Project and the NAB—challenged the FCC's "eligible entity" definition, its 2014 rule on television joint sales agreements and its general inattention to the quadrennial review process. In line with its obligation to promote minority and female broadcast ownership, the FCC has attempted to give preferences (including financing preferences) to certain "eligible entities"—though the FCC's definition of who counts as an eligible entity has been the cause of much consternation. The FCC has employed a revenue-based definition used by the Small Business Administration, but critics argue that definition fails to enhance minority and female ownership and have urged the FCC to adopt a new definition instead. In the first Prometheus Radio Project decision back in 2004, the 3rd Circuit had told the FCC it anticipated that the agency would experiment with a new definition. But, seeming exasperated, the 3rd Circuit noted in its 2016 decision that "to date the Commission still has not employed any alternative definitions for eligible entities." The court ordered the FCC "to act promptly to bring the eligible entity definition to a close." As for the television joint sales agreements, in 2014 the FCC determined that companies were evading its ownership limits on television stations through the influence exerted by advertising contracts known as joint sales agreements. These agreements involve a contract that would allow "one station (the brokering station) to sell advertising (but not programming) on a second station (the brokered station)," the 3rd Circuit described. Arguing that the agreements allowed companies to effectively control, or have influence over, more television stations than the FCC otherwise allowed, the FCC banned joint sales agreements in 2014. But in its 2016 Prometheus III decision, the 3rd Circuit concluded that the FCC improperly enacted that rule without first justifying it. Finally, as for the quadrennial review process, federal law requires the FCC to conduct a review of its rules every four years, but in its 2016 decision the 3rd Circuit said that 2006 was the last time the FCC had comprehensively reviewed all of its ownership rules, a situation the appellate court said was "troubling." The court said if the FCC did not "act quickly," wiping all of the FCC's ownership rules off the books might be justified. In August 2016, shortly after the Prometheus III decision, the FCC completed a quadrennial review. A narrowly divided FCC (pitting the, at the time, three Democratic commissioners against the two Republican ones) voted to keep the existing ownership restrictions in place after all, including the cross-ownership rule (the FCC did make a minor modification to that rule by allowing an exception in the case of a "failing" newspaper). But with FCC Chairman Ajit Pai—who was appointed chairman by President Trump in early 2017—now leading an FCC where the majority of the commissioners are again Republicans, more deregulation efforts appear on the horizon. In May 2017, the FCC launched another review of its media ownership rules. In a statement announcing the review, the FCC said it was seeking "to reduce regulations that can stand in the way of competition, innovation, and investment in the media marketplace."

FCC Bans Three Specific Practices

The FCC's order banned three specific practices that it said invariably harm the principle of an open Internet: blocking, throttling and paid prioritization. 1. No blocking. The FCC said consumers who subscribe to broadband Internet service "must get what they have paid for—access to all (lawful) destinations on the Internet." Therefore, the FCC's order mandated that Internet service providers "shall not block lawful content, applications, services, or non-harmful devices." 2.No throttling. The FCC's order also included a ban on throttling, or degrading, access to the Internet. Such throttling would involve a broadband Internet service provider slowing down access to a site, service or application. If throttling were allowed, the FCC said, such "gamesmanship" could effectively avoid the no-blocking rule by rendering an application effectively unusable. 3.No paid prioritization. The FCC said paid prioritization occurs "when a broadband provider accepts payment (monetary or otherwise) to manage its network in a way that benefits particular content applications, services, or devices." Those sorts of agreements would create a "fast lane" on the Internet where some content is privileged (and accessible more quickly) than others. The FCC's order banned the practice. These rules applied to both fixed and mobile broadband Internet service. The FCC's order also required enhanced transparency, so that "consumers are fully informed about the Internet access they are purchasing" and so that sites, such as Amazon, "have the information they need to understand whether their services will work as advertised." The order required that broadband Internet service providers must disclose promotional rates, all fees and surcharges, and all data caps or data allowances. The order also required specific notification to consumers if a "network practice" is likely to significantly affect their Internet use.

Rules for testimonials (pg. 603-606)

The FTC enforces rules regarding endorsements of products and services by consumers, celebrities, experts and organizations. It defines an endorsement as any advertising message (including things such as verbal statements, demonstrations and depictions of the name of an individual or the name or seal of an organization) that consumers likely are to believe reflects the opinions, beliefs, findings or experiences of a party other than the sponsoring advertiser.54 Under the FTC's rules, several key points emerge that must be understood by advertising students: Endorsements must reflect the honest opinions, findings, beliefs or experiences of the endorser and may not contain any representations that would be deceptive or could not be substantiated if made directly by the advertiser.55 An advertiser may use an endorsement of an expert or celebrity only as long as it has good reason to believe that the endorser continues to subscribe to the views presented.56 If an ad represents that an endorser uses the product, then the endorser must have been a bona fide user of it at the time the endorsement was given and, in addition, the advertiser may continue to run the ad only so long as it has good reason to believe that the endorser remains a user of the product. Ads presenting endorsements by individuals who are represented, either directly or by implication, to be "actual consumers" must use actual consumers, in both the audio and video, or else they must clearly and conspicuously disclose that the people in such ads are not actual consumers of the advertised product.57 If an ad represents, either directly or by implication, that the endorser is an expert, then the endorser's qualifications must in fact give him or her the expertise that he or she is represented as possessing with respect to the endorsement.

562-565 Two types of commercial speech with no protections

The government may ban advertising that is false, misleading or deceptive. The government may ban advertising for unlawful goods and services. This broad exception to the protection of the First Amendment was established primarily to permit the government to bar discriminatory employment advertising. It is illegal for an employer to discriminate on the basis of race or religion or ancestry or even gender when hiring employees. Help-wanted ads that offer employment to "whites" or "men only," for example, are illegal.10 Advertisements for prostitution (an illegal service) are not protected by the First Amendment, with the Web site Backpage.com today often fighting legal battles over its "escort" ads.

National Advertising Board

The appeals body of a two-tier system created by the advertising community in 1971 for self-regulation that works closely with the National Advertising Division, the investigative body, in affiliation with the Better Business Bureau.

588-590 Must be a representation, ommission or practice likely to mislead

The commission considers the entire advertisement as well as all other elements of a transaction when making this determination. As one federal court observed in 2008, "when assessing the meaning and representations conveyed by an advertisement, the court must look to the advertisement's overall, net impression rather than the literal truth or falsity of the words in the advertisement."38 The same court noted that an ad's meaning "may be resolved by the terms of the advertisement itself or by evidence of what consumers interpreted the advertisement to convey." It also is important to remember that an ad may mislead because it omits material information.

Radio Act of 1927

The first comprehensive national broadcast law, which provided the basic framework for the regulation of broadcast that was later adopted in the Federal Communications Act of 1934.

Radio Act of 1912 (History of Regulation)

The first federal broadcast law, which imposed only minimal regulation on the fledgling broadcast industry. Radio operators were required to have a license under this statute.

562-565 Truthful advertising regulation

The government must assert a substantial state interest to justify the regulation. States that seek to limit advertising by doctors and lawyers will argue that the public is not sophisticated enough to evaluate many claims that might be made by these professionals, and even perfectly truthful claims could be deceptive. Protecting the public from such deception is a substantial state interest.11 In another example, in a 2017 case the 8th U.S. Circuit Court of Appeals held that promoting responsible drinking was a substantial state interest supporting regulation under a Central Hudson analysis.12 Next, the government must demonstrate that the ban on advertising it has instituted will directly advance the interest outlined in the previous paragraph. Think of the interest as a kind of goal the state is seeking to reach. Will the ban on advertising help the state reach this goal? On this element, mere speculation and conjecture that a law directly advances the government's interests and alleviates the alleged harms in a material way won't cut it. Rather, as a federal appellate court wrote in 2009, "we independently evaluate [the government's] assertion that the advertising restrictions advance the state's interest, and we rely on the valid sources of history, consensus, and common sense."13 A Baltimore ordinance that banned outdoor advertising for alcoholic beverages in areas in which children walk to school or neighborhoods in which children play was ruled permissible because it directly and materially advanced the city's interest in promoting the welfare and temperance of minors.14 Finally, the state must show that there is a "reasonable fit" between the state interest being asserted and the government regulation. A reasonable fit means the regulation must be narrowly tailored to achieve the desired objective, but it doesn't have to be the least restrictive means available. In 2006 a federal appellate court held that a Missouri law banning, within one mile of highways, billboard ads for sexually oriented businesses (regardless of the words or images on the billboards) was not narrowly tailored to meet the state's substantial interest in eliminating secondary effects of adult businesses (see Chapter 13 regarding secondary effects).15 Missouri believed that by eliminating billboard ads, fewer people would visit sexually oriented businesses, thus forcing closure due to lack of customers. Although the court found evidence the law would directly advance this substantial interest, it held the law was not narrowly tailored because it "threatens criminal prosecution for the mere inclusion of the name or address of an affected business" and thus bans "an intolerable amount of truthful speech about lawful conduct." Importantly, the court added that Missouri failed to show that "a more limited speech regulation would not have adequately served the state's interest."

Common carrier vs. non common carriers [The fcc's role in net neturality}

The key question in the net neutrality debate is whether the FCC has the regulatory authority to enforce net neutrality. The fundamental issue is whether ISPs are classified as common carriers or non-common carriers. Common carriers are traditionally companies like utility companies who, while private, are required to sell their services to everyone equally. This was important historically if you consider a power company that wanted to not provide service to the poor side of town, only the rich side of town. The government stepped in and said for private companies that provide certain public services, must do so equally. They can charge for different levels of service (ie: solar power vs. traditional), but everyone within their service range must be offered the same plans/services. Telephone companies have traditionally been common carriers. They have to provide phone service equally. Most companies are non-common carriers. They have the right to do business with, or not do business with whoever they want (though this can be bad business sense so most don't). While internet companies aren't trying to deny service (just charge more to use that service!), the common-carrier non-common carrier distinction is important because the FCC only has regulatory power over common-carriers. In 2010 the FCC decided to officially treat broadband companies like common-carriers. They did not officially designate them as common-carriers, but passed the FCC Open Internet Order (2010). In this order, the FCC mandated that all internet traffic be treated "roughly the same way" and reinforced the traditional values of net neutrality. This led to a 2014 federal court case, Verizon v. FCC (2014), where Verizon sued the FCC, claiming that broadband companies (Verizon in this case providing wireless internet to cell customers) are not common-carriers.

Federal Communications Act of 1934

The law, adopted in 1934, that is the foundation for the regulation of broadcasting in the United States.

Commerical Speech Doctrine (advertising and the first amendment)

The legal doctrine that states that truthful advertising for products and services that are not illegal is normally protected by the First Amendment to the U.S. Constitution. For many years, advertising was not protected by the First Amendment. It was not until 1975 that the U.S. Supreme Court first explicitly held that "commercial advertising enjoys a degree of First Amendment protection," reasoning at the time in Bigelow v. Virginia that "the relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas"1 (see Chapter 2 regarding the marketplace of ideas). Yet the court also was clear in Bigelow that advertising is "subject to reasonable regulation." Since then, courts have developed a commercial speech doctrine articulating just how much First Amendment protection advertising receives and the criteria the government must satisfy to permissibly regulate it. The doctrine evolved in a series of cases in the five years after Bigelow.

591-601 Consent agreement

The most commonly used FTC remedy is the consent agreement, or consent order or decree. This is a written agreement between the commission and the advertiser in which the advertiser agrees to refrain from making specific product claims in future advertising. The advertiser admits no wrongdoing by signing such an order, so there is no liability involved. The consent agreement is merely a promise not to do something in the future. Sometimes the misleading statements are minor errors, but other times they represent a major attempt at deception. Considerable pressure is placed on the advertiser to agree to a consent order. Refusing to sign the agreement will result in litigation and publicity. The publicity can do more harm to the advertiser than a monetary fine. Also, the time factor works in the advertiser's favor. Typically the advertising campaign is already over.

591-601 Trade regulation rules

The new law expanded the jurisdiction to practices "affecting commerce." The change of a single word gave the FTC broad new areas to regulate. The law also gave the agency important new power. Three sections of the act expanded the remedies the FTC can use against deceptive advertising. First, the agency was given the power to issue trade regulation rules defining and outlawing unfair and deceptive acts or practices. The importance of this power alone cannot be overestimated. In the past the agency had to pursue deceptive advertisements one at a time. Imagine, for example, that four or five different breakfast cereals all advertise that they are good for children because they contain nine times the recommended daily allowance of vitamins and minerals. Medical experts argue that any vitamins in excess of 100 percent of the recommended daily allowance are useless; therefore, these advertisements are probably deceptive or misleading. In the past the FTC would have had to issue a complaint against each advertiser and in each case prove that the statement was a violation of the law. Under the new rules, the agency can issue a trade regulation rule—as it had done for nutritional claims—that declares that claims of product superiority based on excessive dosage of vitamins and minerals are false and misleading. If advertisers make such claims, they are in violation of the law. All the commission must prove is that the advertiser had actual knowledge of the trade regulation rule, or "knowledge fairly implied from the objective circumstances." The advantages of the trade regulation rules (TRRs) are numerous. They speed up and simplify the process of enforcement. Advertisers can still litigate the question, challenge the trade regulation rule, seek an appeal in court and so forth. In most cases they probably will not go to that expense. Trade regulation rules have had a great deterrent effect, as they comprehensively delimit what constitutes an illegal practice. In the past, after the commission issued a cease and desist order, businesses frequently attempted to undertake practices that fell just outside the narrow boundaries of the order. The TRRs are much broader and make it much harder for advertisers to skirt the limitations. Finally, via TRRs the FTC is able to deal with problems more evenhandedly. An entire industry can be treated similarly, and just one or two businesses are not picked out for complaint.

Spectrum Scarcity (medium specific jurisprudence)

The notion, in the realm of the FCC's regulation of over-the-air broadcasting, that there are a finite number of frequencies on which to broadcast and that, in turn, there are more people who want to broadcast than there are available frequencies.

Telecommunications History

The regulation of telecommunications in the United States dates from 1910, shortly after radio was developed. Congress passed a law that required all U.S. passenger ships to have a radio. Two years later the federal legislature adopted the Radio Act of 1912, which required that all radio transmitters be licensed by the federal government and that radio operators be licensed by the government as well. In the 1920s radio grew far faster than most observers had thought possible. There were millions of listeners and far too many stations. The electromagnetic spectrum, or the airwaves, through which radio signals travel is a finite medium. As a modern freeway can hold only so many vehicles, the airwaves can hold only so many radio signals. Too many cars on the highway cause accidents and gridlock. Too many radio signals meeting in the spectrum cause similar chaos. Signals overlap and block each other. To listeners the result is gibberish. Near the end of the 1920s a reluctant Congress was forced to act once again; it adopted the Radio Act of 1927, a comprehensive set of rules aimed at creating order from the problem caused by too many people trying to broadcast radio signals at the same time. The new law governed who could and could not broadcast, and when they could broadcast. But it focused on the content of radio programs as well. Both the broadcasting surely amounted to speech and press, rights guaranteed under the Bill of Rights. Surprisingly, the issue hardly arose. The 1927 statute was substantially amended and revised seven years later when Congress adopted the Federal Communications Act in 1934. This law remains as the base for all telecommunications regulation today. It expanded the earlier statute to include telephones and the telegraph as well as radio. And it provided for the appointment of the Federal Communications Commission, or FCC, to regulate all these telecommunications media—the same FCC that years later was the bane of Eminem and Howard Stern's existence. Although it is not the focus of this chapter, the FCC still regulates telephony (telephones) today.

588-590 The act or practice must be considered from the perspective of a consumer who is acting reasonably

The test is whether the consumer's interpretation or reaction is reasonable. When advertisements or sales practices are targeted to a specific audience, such as those aimed at children or people who are elderly or terminally ill, they will be viewed from the perspective of a reasonable member of that group. Also, advertising aimed at a special vocational group, such as physicians, will be evaluated from the perspective of a reasonable member of that group. A well-educated physician might be better able to understand a complicated pharmaceutical ad than the average individual can. The advertiser is not responsible for every interpretation or behavior by a consumer. The law is not designed to protect the foolish or the "feeble minded," The commission evaluates the entire advertisement when examining it for misrepresentation. Accurate information in the text may not remedy a false headline. Qualifying disclosures must be legible and understandable, the FTC has ruled. "The commission generally will not bring advertising cases based on subjective claims (taste, feel, appearance, smell)," according to the guidelines. The agency believes the typical reasonable consumer does not take such claims seriously and thus they are unlikely to be deceptive. Finally, the commission has stated that when consumers can easily evaluate the product or service, when it is inexpensive and when it is frequently purchased, the commission scrutinizes the advertisement or representation in a less critical manner. "There is little incentive for sellers to misrepresent . . . in these circumstances since they normally would seek to encourage repeat purchases," a 1983 statement proclaims.

Evaluating the misleading ad

There are a few additional clarifications to this list. First, the entire ad is examined for it's overall impression. Fragments of ads, or literal meanings, are not at question. (So you can't claim that three seconds of a thirty second ad is confusing). Second, the FTC considers what a reasonable consumer would find confusing. Reasonable consumers are defined as the target audience for an ad. So an ad targeted towards children should not confuse children (vs. adults). An ad targeted towards doctors should not confuse doctors (vs. lay people). Third, advertisements for every day items face less scrutiny from the FTC. The thinking here is that every day items are cheap, and often purchased regularly. A consumer who is misled about paper towels is a lot less inconvenienced than a consumer misled on a car. Fourth, puffery, or outrageous subjective claims, are ok. Saying "our paper towels are more absorbent than our competitors" is a claim that must be substantiated. Saying "our paper towels are out of this world" is puffery and not going to confuse consumers. Fifth, the mislead must be material (substantial). It should somehow confuse the consumer on product characteristics, health/safety claims, purpose of the product, or cost.

Federal Regulatory Agencies

There are three main federal agencies that regulate commercial speech. The primary one is the Federal Trade Commission (FTC). The FTC regulates interstate commerce and advertising (so any ads that cross state lines... minus a small percentage of local print ads, almost all of them, and anything on the internet). The Food and Drug Administration (FDA), helps regulate any ads that deal with prescription medication, food, medical devices, etc. And finally, the Securities and Exchange Commission (SEC), deals with truthful information about businesses (assets, bankruptcy, company structure). According to the FTC, advertisers must have a reasonable basis for all the claims that they make. The FTC also has certain powers (per the FTC Improvement Act of 1975). Most notably, it can issue trade regulation rules. The FTC can also sue on behalf of victimized consumers (essentially taking on the role of the plaintiff in a lawsuit), and impose civil penalties for companies that violate their guidelines.

Defining false advertising (know the FTC's definition of false advertising) (pg. 588-590)

There must be a representation, omission or practice that is likely to mislead the consumer. The act or practice must be considered from the perspective of a consumer who is acting reasonably The representation, omission or practice must be material

Competitor to competitor lawsuits

These lawsuits involve companies suing each other and claiming that their competitor's ads are false or misleading. A lot of the litigation involving false advertising isn't done by individual consumers, or even the FTC, but competitors trying to put each other out of business.

Trade regulation rules

Trade regulation rules- comprehensively outlines legal/illegal advertising practices More difficult to avoid limitations Whole industry treated the same

Trespass

Trespass- intentional, unauthorized entry onto land owned by someone else Defense? Consent Civil liability & criminal trespass Castle law- about half of the states is intentional, unauthorized entry into land owned by someone else. It doesn't matter how good of a reason you have for going onto someone's land. If you do it without permission it is trespass. This can lead to civil liability (usually fines), or even criminal liability (resulting in jail time). Google found this out in 2010 when Google employees drove down a private road to take photos for their Street View function. Google tried to argue in court that they were photographing the world for the public's own good. The court disagreed, saying that regardless of the reason, it was "pure" trespass.

Newsgathering

Under Freedom of Information, you learned that we have a right to certain government documents and to access certain government meetings. This is great if you're a journalist. But what if you want information that isn't a record or meeting covered by FOI, or other government entity subject to transparency. The First Amendment protects freedom of speech, but does it protect a right to gather news and information? As a short answer, no, there is no protection for a so-called right to know. Generally journalists don't have any special rights to conduct their jobs. This means no special right to gather information, have access to locations, etc. Journalists are more likely to run into problems as they try to do their jobs though then regular individuals. In particular, they tend to run a foul certain areas of law while trying to gather news: trespass, harassment, fraud, lawful orders, and taping & recording.

Policing Ads

VOLUNTARY COMPLIANCE CONSENT AGREEMENT SUBSTANTIATION CORRECTIVE ADVERTISING INJUNCTIONS

Cases to Know

Verizon v. FCC (2014) (discussed in class) Prometheus Radio Project v. FCC (did not discuss specifically in class, pg. 616-618 of the book) FCC v. Pacifica (pg. 635 of the book) Branzburg v. Hayes (pg. 395-396)

What changed in law?

Well, the Supreme Court, in 1975, decided that commercial speech should be protected for consumer rights. That consumers used advertisements to price compare and be able to get the best deal on goods and services. So the Supreme Court extended the First Amendment to protect commercial speech. Additionally, many modern advertisements aren't just information. They are creative and innovative. They impact our culture, similarly to artistic and political expression, and worthy of protection.

Net neutrality (mostly from class notes and pg. 142-144):

What is it? Common carriers

Net Nuetrality

What is net neutrality? At the most basic level, is it the idea that ISPs (internet service providers), should treat all internet traffic the same.

JANA WINTER & FOX NEWS

Winter, reporter for Fox News, refused to reveal a confidential source Information relating to 2012 Aurora, Colorado shooting (James Holms sent detailed plans to psychiatrist) Violated gag order on trial... Subpoena for testimony? Other routes

Infrastructure

Worldwide, most internet is also transmitted using cables as well. Satellite signals actually only account for 1% of international traffic. Instead undersea submarine cables (cables laid on the sea bed to carry telecomm signals), is where most data travels. These cables are more reliable and can transfer larger amounts of data. Here is a map showing how they are laid out. That being said, even submarine cables are subject to failure. The San Juan islands lost internet (and cable television, and phone), for several days in 2013, when a large rock got tangled in a submarine cable, snapping it. Video of a shark gnawing on a submarine cable made Shark Week news in 2014. So why do all these infrastructure issues mean? Well, in a day-to-day way, it results in slower internet and less service for millions of Americans. There are very few companies left to provide internet to the public in a post Telecommunication Act (1996), consolidated world. One third of Americans have no choice in broadband internet. Very few companies dominate. The United States has one of the slowest internet speeds of a developed country, usually for far more money. (In comparison to countries like South Korea, Japan, Switzerland, Ireland, even Latvia.) Looking at Idaho in particular, as of 2017 the state was ranked at 47th in terms of internet connectivity in the country and 21% of its population is underserved. Only 54% of the state even have broadband coverage.

562-565 Commercial vs. political

courts sometimes weigh three factors to help determine if it is commercial: (1) whether the expression is an advertisement, (2) whether it refers to a specific product, and (3) whether the speaker has an economic motivation for speaking In some cases it is not easy to distinguish political speech from commercial speech, as courts recently have observed.8 But the difference is critical because it is much easier for the government to justify a law regulating commercial speech under the Central Hudson test (as the commercial speech doctrine sometimes is known) than it is to regulate political speech under the strict scrutiny standard. In cases involving speech transpiring in the context of promotional materials and activities (a doctor, for instance, giving a talk or seminar about a new drug), .9

Telecommnications

information transmitting technologies (encompassing broadcast), but also mobile phones, broadcast networks, land lines

Trespass (In terms of newsgathering and whats not protected)

is an intentional, unauthorized (i.e., without consent) entry onto land that is occupied or possessed by another. While consent is a defense to a claim of trespass, journalists who exceed the scope of consent by taking actions in abuse of the authorized entry or by going into places beyond where they have permission may be held liable

591-601Corrective advertising

misleading information remains in the mind of the public after the offensive advertisements have been removed. Under the corrective advertising scheme, the FTC forces the advertiser to inform the public that in the past it has not been honest or has been misleading. 598 The corrective advertising sanction was first used by the FTC in 1971 and was applied frequently during the heady consumer protection years of the 1970s. The agency has never outlined a hard-and-fast policy regarding when corrective advertising will be used. In response to a request from the Institute for Public Representation for such a policy statement, the FTC said corrective advertising may be applied: If a deceptive advertisement has played a substantial role in creating or reinforcing in the public's mind a false and material belief which lives on after the false advertising ceases, there is clear and continuing injury to competition, and to the consuming public as consumers continue to make purchasing decisions based on the false belief. Since the early 1980s the corrective advertising sanction has been used sparingly by the agency. But it does still exist as a policy choice. In May 1999 the FTC ordered a giant pharmaceutical company, Novartis A.G., to run advertising correcting earlier statements that called its Doan's back-pain relievers superior to other analgesics. The agency said the company had to spend $8 million on advertising messages that include the words, "Although Doan's is an effective pain reliever, there is no evidence that Doan's is more effective than other pain relievers for back pain." The company had to make similar disclosures on its packaging for one year.47

Branzburg v. Hayes (pg. 395-396)

n 1972 the Supreme Court of the United States ruled, in a 5-4 decision, that there was no privilege under the First Amendment for journalists to refuse to reveal the names of confidential sources or other information when called to testify before a grand jury.6 This ruling of more than 45 years ago in a case called Branzburg v. Hayes is the last word the nation's high court has spoken on the subject. In 2013, the 4th U.S. Circuit Court of Appeals observed in United States v. Sterling that "the Branzburg Court declined to treat reporters differently from all other citizens who are compelled to give evidence of criminal activity."7 Sterling was a criminal espionage case involving the federal government's subpoenaing of New York Times reporter James Risen. The government wanted Risen to testify in the prosecution of former CIA agent Jeffrey Sterling, who allegedly leaked classified information to Risen. The 4th Circuit denied Risen, a two-time Pulitzer Prize winner, a qualified First Amendment reporter's privilege that would have shielded him from being compelled to testify in the case against Sterling. In addition to rejecting the existence of a First Amendment reporter's privilege not to testify, the 4th Circuit also refused to create or recognize a federal common-law reporter's privilege protecting confidential sources. In 2014, the U.S. Supreme Court chose not to hear Risen's appeal of the 4th Circuit's ruling, thus passing on a prime opportunity to revisit Branzburg. At the same time, however, most federal courts have limited the Branzburg ruling to apply only to grand jury settings, and they have created, either under First Amendment 396 or common-law principles, qualified (limited) protection for journalists not to testify in other, non-grand-jury settings. The following describes how it got to this point, starting with the Branzburg case and ruling. The Supreme Court consolidated three similar cases in Branzburg to consider whether the First Amendment privileged journalists not to testify before grand juries about confidential information. One case involved Paul Branzburg, a reporter for the Louisville Courier-Journal. Branzburg was called to testify in 1971 about drug use in Kentucky after he wrote two stories about drugs and drug dealers in the area. In the second case, Paul Pappas, a television reporter for a Massachusetts television station, was called before a grand jury to relate what he had seen and heard when he spent three hours at a Black Panther headquarters in July 1970. Finally, New York Times reporter Earl Caldwell was subpoenaed to appear before a grand jury investigating the activities of the Black Panthers in Oakland, Calif. Caldwell, a black man, had gained the confidence of the leaders of the militant group and had consistently written illuminating stories about the Panthers that demonstrated an astute awareness of their activities. The decisions in the three cases are referred to collectively as the Branzburg ruling. The Supreme Court fractured into three groups. Four justices, led by Byron White, who wrote the court's opinion, ruled that there was no First Amendment privilege for reporters called to testify before a grand jury. White said that although the court was sensitive to First Amendment considerations, the case did not present any such considerations. There were no prior restraints, no limitations on what the press might publish, and no order for the press to publish information it did not wish to. No penalty for publishing certain content was imposed. White wrote: The use of confidential sources by the press is not forbidden or restricted. . . . The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor other constitutional provisions protect the average citizen from the disclosing to a grand jury information that he has received in confidence.8 Reporters are no better than average citizens, White concluded. The four dissenters differed sharply with the other justices. Justice William O. Douglas took the view that the First Amendment provides the press with an absolute and unqualified privilege. In any circumstance, under any condition, the reporter should be able to shield the identity of a confidential source. Justices Potter Stewart, William Brennan and Thurgood Marshall were unwilling to go as far as Douglas and instead proposed that reporters should be protected by a privilege that is qualified, not absolute. These three dissenters argued that the reporter should be able to protect the identity of the confidential source unless the government can show the following: 1.That there is a probable cause to believe that the reporter has information that is clearly relevant to a specific violation of the law 397 2.That the information sought cannot be obtained by alternative means less destructive of First Amendment rights 3.That the state has a compelling and overriding interest in the information When the government cannot fulfill all three requirements, Justice Stewart wrote for the dissenters, the journalist should not be forced to testify. Justice Lewis Powell provided the fifth vote needed for the court to reject the notion of a constitutional privilege for reporters. But whereas Powell voted with those who could find no privilege in the First Amendment, his brief concurring opinion seemed to support the opposite proposition. "The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources," he wrote. No harassment of reporters will be allowed, and a balance must be struck between freedom of the press and the obligation of all citizens to give relevant testimony. "In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection," Powell wrote. Two years later, in a footnote in another case, Saxbe v. Washington Post,9 Powell emphasized that the high court's ruling in Branzburg was an extremely narrow one and that reporters were not without First Amendment rights to protect the identity of their sources.

Broadcast

transmission by radio or television

Broadband internet

uses the same cables that provide cable television. In fact, these cable networks provide cable internet, telephone, and even most wireless services (cable modems convert network data to travel along coaxial cables for a boost). The vast majority of our high-speed internet relies on technology from the 1960s and 70s... This is all infrastructure that is owned by private companies. The government is not involved in the upkeep or distribution of broadband internet (though it often offers incentives to these companies to try to get them to upgrade internet infrastructure). Some companies also use fiber optic cables. These are a huge upgrade to coaxial cables, but currently still expensive and often only available in limited urban areas. In 2006, the average cost per mile to switch from coaxial to fiber optic cable was $52,000. In 2013, the average cost per mile was still $13,000. (Statistics from the U.S. Department of Transportation.) In all reality, we actually have a very vulnerable infrastructure in the United States. Our telecommunications systems are old, and not comprehensive. Here is a map from 2015 that shows the cables that carry Internet data around the United States. Red squares show where different cables connect, usually in big cities, but generally a single cable carries internet to large portions of the United States. (As a side note, this map took years to create, because private companies have refused to reveal the location of their cable systems. Researchers spent years compiling this map, the first of its kind, from public records created by the permitting process for laying cables. Researches has to go to each county in the United States and examine documents held by county clerks.) This single-point fail system (where a single line being cut either intentionally or accidentally severs service), is a huge issue. There are no fail-safes or redundancies built into the system. As a somewhat funny anecdote, in 2011 the entire country of Armenia lost internet connection for several hours when an elderly woman in neighboring Georgia accidentally cut a cable with a spade while out scavenging for copper piping. Feel free to click the photo to read the news story from The Guardian.