Mass Comm Law

How does Nebraska Press Assoc. v. Stuart fit in? Why?

It establishes the Nebraska-Press test

Doesn't Branzburg offer at least a little hope of protection?

It protects the right to gather the news, which is a great start

b. To what extent?

Reporters are not given any special rights in this regard, only those rights that all citizens enjoy.

How does U.S. v. Moussaoui case fit in?

"This value, of providing the community at large a sense that justice has been done, is particularly relevant in Moussaoui." The court said.

Cameras in the courtroom/Chandler

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Judith Miller Case

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And what kind of reports are you talking about? Why?

1) Confessions or stories about the confession that a defendant is said to have made which include even alluding to the fact that there may be a confession. 2) Stories about defendant's performance on a test (Polygraph) 3) Past criminal record 4) Stories that question the credibility of witnesses or contain person feelings of anyone involved 5) Stories about the defendants character 6) Stories that tend to inflame the public mood against the defendant 7) Any story put out in any way before a trial that suggests, implies, or simply states that the defendant is guilty.

Define the Nebraska Press Test and how it's applied

1) Intense and pervasive publicity concerning the case is certain 2) No other alternative measures might mitigate the effects of the pretrial publicity (Sheppard Mandates) 3) The restrictive order will in fact effectively prevent prejudicial material from reaching potential jurors. *gagging the press is always a last resort

Nine Exemptions to FOIA

1) National Security matters 2) Housekeeping materials 3) Materials exempt by statute 4) Trade Secrets 5) Working Papers/lawyer-client privilege 6) Personal Privacy files 7) Law enforcement records 8) Financial Institution materials 9) Geological Data

Using Questions 1 and 5 as a foundation, provide 3 reasons the First Amendment should protect the gathering of information, as well as the dissemination of information? 1) Check and Balance 2) Freedom to report 3) The people need unbiased information.

1) The media works as a check and balance in our government. The framers of the First Amendment recognized that a press free of government control is a vital part of a political system based on the will of the people. 2) The press needs the freedom to report abuses of power by public officials. 3) The people must be able to receive news critical of the government and exchange information and opinions about public affairs without interference by government officials.

Explain/define restrictive gag order on the press during trials.

1) Trial Participants 2) Press

Don't forget the middle prong (3) involves all 8 possible Sheppard Mandate alternatives to gagging the press.

1) Voir Dire 2) Change of venue 3) Change of veniremen 4) Continuance 5) Admonition 6) Sequestration 7) In court rules for journalists 8) Gag orders for trail participants

Don't forget the middle prong (2) of the test involves considering all 8 possible Sheppard Mandate alternatives to gagging the press

1) Voir Dire (questioning jury for bias) 2) Change of venue (moving trial to a secondary community. 3) Change of veniremen (bringing in other jurors from other communities) 4) Continuance (moving the trial to a later date) 5) Admonition (rendering their decision based solely on the facts discovered in court. Ordered not to involve themselves in any medium that communicates stories about the case) 6) Sequestration (jury is removed from court for certain discussions in court. Also moved to a controlled environment for the entirety of the case) 7) In court rules for journalists 8) Gag trial participants from speaking to the press

Define the two basic thrusts of the Privacy Act of 1974

1) it attempts to check the misuse of personal data obtained by the federal government, the quantity of which has, of course, reached staggering proportions. 2) the law is intended to provide access for individuals to records about themselves that are held by federal agencies. The first objective of the law could be the more troublesome to the press.

Two questions a judge considers before applying the Press-Enterprise test?

1) whether this kind of hearing has been historically or traditionally open 2) whether public and press access to the hearing will play a positive role in the functioning of the judicial process

Test from in re Madden. (The Shoen and O'Grady cases help as well.)

1) who is engaged in investigative reporting; 2)who is gathering news; 3) who possesses the intent at the beginning of the news-gathering process to disseminate this news to the public.

Define the controversy: Two Constitutional rights clash. 1st v. 6th Amendments.

1st--guaranteed right to a free press; 6th--right to a fair trial. Published pretrial & make them change their minds. Interfere with each other.

Who is a journalist?

A journalist is someone that gathers the news for a news medium. Technology is playing a large role in changing that definition, but the issue has not been resolved.

a. Why does it exist?

A key point that must be remembered regarding these rulings: In virtually all the instances noted in which a court has ruled that the First Amendment does provide a means of gaining access to a meeting or a record, the court has emphasized that this right belongs to both the press and the public.

What are pretrial hearings?

A pretrial hearing is a meeting with the judge that happens before trial, if the parties have not come to an agreement by that point.

Define Agency!

An agency is any executive department, military department, government corporation, government-controlled corporation or other establishment in the executive branch of government (including the executive office of the president), or any independent regulatory agency.

Define Agency Record, and find the test!

An agency record is government papers, documents, e-mail, and other computer-generated material. It also inlcudes films, tapes and even three-dimensional objects such as evidence in a criminal prosecution. The test has three prongs: 1) If the record is either created or obtained by an agency, and the record is under agency control at the time of the FOIA request, it is very likely an agency record. 2) If the agency has created the document but dies not possess or control it, it is not an agency record. 3) If the agency merely possesses the document but has not created it, it might be an agency record, or it might not. If the agency came into possession of the document as a part of its official duties, it is probably an agency record. If it just happens to have the document, it is probably not an agency record.

Irwin v. Dowd fits in how?

At the trial, of 430 persons called as potential jurors, 375 told the judge that they believed Irvin was guilt. Of the 12 jurors finally selected, eight told the court they thought he was guilty before the trial started. The Supreme Court overturned Irvin's prejudice, statements of impartiality could be given little weight.

Explain why jurors shouldn't receive media reports.

Because it creates a great danger of prejudice

Why do journalists argue the First Amendment gives the right to refuse a source or information?

Because the First Amendment states that "Congress shall make no law ... abridging the freedom of the press."

Burr/Murphy/Patton

Burr: Mind free from dominant influence Murphy:Impartial and indifferent but not ignorant juror Patton: Jurors actually have a fixed opinion. Not the community outlook

Define Privacy Act of 1974

Checks misuse of personal data obtained by fed. gov. 2nd-law is intended to provide access for individuals records about themselves.

Two purposes of contempt power?

Civil: Coercion; Make them talk! Criminal: Punish them and make it known for those to come after.

The contempt power: two types

Civil: Coercive, make them talk. Could cost the person on trial a fair trial. Criminal: A defendant who refuses to stop talking during a trail or an attorney who continually ignores judicial warnings against talking to reporters about the merits of the case can be punished with contempt citation. So can a writer who carelessly and aggressively criticizes a court ruling in a newspaper editorial.

The Balancing Test/This involves the Judith Miller sources case problem

Does the public interest in compelling disclosure of information outweigh the public interest in news gathering and the free flow of information.

FOIA v. Privacy Act

FOIA wins! Privacy Act is intended to protect the individual not the government.

Greentree v. Custom Service! What is the point of law on FOIA v. Privacy Act? Which trumps and why?

FOIA wins! Privacy Act is intended to protect the individual not the government. Judge Wald noted that "no agency shall disclose any record which is contained in a system of records...unless disclosure of the record would be required under section 552 (FOIA) of this title." "We must conclude," Wald wrote, "that this section of the Privacy Act represents a congressional mandate that the Privacy Act not be used as a barrier to FOIA access."

Greentree v. Customs Service

Frank Greentree was indicted and convicted in federal court on drug charges. He filed a civil suit to block state prosecution on the same events. Greentree requested info from Drug Enforcement Admin. and U.S. Bureau of Customs to assist him in his civil action. Both agencies denied his request. The documents he was requesting were contained in something called Investigations Record System, which is considered exempt from the access provisions of the Privacy Act. Because the information could not be released under the Privacy Act , the government argued that it was also unavailable under FOIA Exemption 3. Greentree eventually won on appeal. Judge Wald stated that, "throughout its consideration of the Privacy Act, Congress struggled to hold separate the Privacy Act and FOIA. *Judge Wald wrote that the privacy act contains congressional mandate that the privacy act not be uses as a barrier to FOIA access.

What is the extent of a judge's gag order power on the press?

Gag order power on the press is limited by three prongs in the Nebraska Test

In which setting does the Stewart/Burke test apply, and why?

Grand Jury. 1) That there is probable cause to believe that the reporter has information that is clearly relevant to a specific violation of the law. 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.

What do you think?

I think the main purpose of the media is to provide a check and balance to those in powerful positions, positions that have an impact on citizens.

What 5 other questions must be met to gag the press in a pretrial hearing?

If the answer to either of those it yes, the judge must move on and address the next 5 questions. 1) if the defendant's right to a fair trail would be violated, or for protection of a witness 2) prove to the court that if the hearing or document is open to the press and public, there is a substantial probability that this interest will be harmed (jury prejudice or the privacy of a witness will be invaded) 3) consider whether there are reasonable alternatives. Sheppards Mandate. 4) Narrowly tailor the closure so there is an absolute minimum of interference with the rights of the press and public to attend the hearing or see the document 5) make evidentiary findings to support this decision and prepare a thorough factual record relating to the closure order, a record that can be evaluated by an appellate court.

Define the Constitutional (meaning case law) protection of news sources and information.

In 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. (Branzburg v. Hayes). This applies only to Grand Juries.

Cohen v. Cowles Media Co.

In 1991 a five-justice majority of the U.S. Supreme Court held that the First Amendment does not bar and does not prevent a lawsuit against a journalist who breaches a promise of confidentiality to a source when the source suffers direct harm from reliance on the breached promise. Republican political operative (Cohen) was given a promise of anonymity by reporters from two Minn. papers in return for information Cohen would supply about a rival candidate for public office. The paper thought the info was insignificant and instead thought the real story was about Cohen 's own tactics in spreading dirt to further his political standing. They revealed his name, and Cohen was fired from his job. Cohen sued under promissory estoppel, the majority held that "the First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law." Journalists cannot break general laws and then try to claim First Amendment exemtion from them.

Youngstown Pub. CO. v. McKelvey

In this case a judge held that a no-comment policy issued in 2003 by George McKlevey, then the mayor of Youngstown, Ohio, that directed city employees not to speak with reporters from a bimonthly newspaper called the Business Journal did not violate the First Amendment. The judge concluded, "the right of access sought by the Business Journal is to information otherwise not available to the public, and therefore, is a privileged right of access above that of the general public to which no constitutional right of access applies. The case was eventually dismissed when a new mayor took office.

Chandler v. Florida

Mere presence of cameras not prejudicial. To block cameras, defendant must demonstrate adverse effect. To overturn conviction, defendant must show cameras made a substantial material difference in the ruling.

Based on what reasoning and evidence?

My evidence is the First Amendment. Putting the freedom of the press clause in the Constitution was the framers way of creating a watchdog over a free society government. I've heard in many classes media is considered a fourth branch of GOVERNMENT. So I strongly disagree with Justice Warren Burger in the Houchins case.

Promissory estoppel test/Cohen Case

Prevents injustice to a person when someone fails to keep a promise. 1) That the defendant made a clear and definite promise to the plaintiff 2) that the defendant intended to induce the plaintiff's reliance on that promise 3) that the promise must enforced by the court in the interests of justice to the plaintiff.

What do they (the gags) do?

Prevents participants in a trail from speaking about a case or that stops publications and broadcasting stations from reporting certain aspects.

Understand the recourse of sources who lose confidentiality

Promissory estoppel

Define Government in Sunshine Act

Provides transparency in government. Also called the Federal Open Meeting Law. Reaches 50 agencies in the exec. branch. Members are not allowed to discuss material that falls into one of 10 categories. Mirror the FOIA Exemps.

Impact on jurors: Proven? Not yet proven? According to? Check the Pember text.

That intensive press coverage of a criminal case might jeopardize the rights of the defendant is generally assumed. But whether it will in fact harm the defendant's 6th Amendment rights remains more of an open question. There are those that argue vigorously that any publicity can result in a jury biased for or against the defendant. In the "C.S.I." generation some prosecutors argued that the show was having an impact on juries. They argued that jurors who regularly watched the program began demanding DNA evidence before they would convict. And defense attorneys were claiming the show portrayed forensic evidence as being unambiguous and more certain than it really is. The problem is there is simply no evidence to support the claims for either argument. UCC (Vergobbi).

Freedom of Information Act or FOIA!

The Freedom of Information Act is a law that gives you the right to access information from the federal government. It is often describes as the law that keeps citizens in the know about their government.

Branzburg v. Hayes

The Petitioners, Branzburg, Pappas and Caldwell, newspaper reporters (Petitioners), brought suit seeking a declaration that the freedom of the press extended to personal protection regarding sources and story information. Branzburg one of the Petitioners observed the making of hashish from marijuana and was later called before a grand jury to implicate the persons involved. Two of the other Petitioners, Pappas and Caldwell, both covered the Black Panthers and were later called to a federal grand jury to discuss their findings. All three reporters refused to participate in the grand juries claiming a newman's privilege. Issue. This case considers whether reporters are to be held to the same standards as other citizens, which would subject them to grand jury testimony. This case stands for the proposition that a reporter is protected by the First Amendment of the United States Constitution (Constitution) insofar as they cannot be compelled to testify regarding their stories.

Q1.What is the court's position on denying a First Amendment right to gather news and information?

The court's basic position is, there should be some protection in gathering news to prevent freedom of the press from being eviscerated (Branzburg). But, that's where it ends. In Saxbe v. Washington Post, Justice Stewart wrote, "Newsmen have no Constitutional right of access to prisons or their inmates beyond that afforded the general public. Justice Warren Burger wrote in Houchins v. KQUED that "we must confuse the role of the media with that of the government."

U.S. v. Burke

The defendant was indicted for conspiracy in connection with a basketball point-shaving scheme at Boston College and attempted to impeach the testimony of the prosecution's chief witness, a reputed underworld figure. The defendant asked the court to subpoena the unpublished notes and drafts of Sports Illustrated reporter Douglas Looney, who had interviewed the witness. The U.S. Court of Appeals for the 2nd Circuit quashed the subpoena, noting that the court may order reporters to reveal confidential sources only when the information is 1) highly material and relevant. 2)necessary or critical to the defense, and 3) unobtainable from other sources.

Washington Post v. Dept. of Homeland Security

The issue arose in 2006 when the Secret Service produced under a FOIA request by the group Judicial Watch, visitor logs to the white House revealing the number of times disgraced Republican lobbyist Jack Abramoff visited the White House. To prevent future disclosure the White House and the Secret Service quickly and quietly entered into an agreement declaring that "all logs about comings and goings of White House visitors are presidential records (not subject to disclosure under FOIA). The federal judge ruled in favor of a FOIA request by the Washington Post. The records were in fact agency records and subject to disclosure.

Lower federal and state courts have found broader, albeit qualified Constitutional rights of access. Based in what legal reasoning? Explain!

The lower federal courts and state courts tend to mirror the rulings by the Supreme Court that reject the notion of a First Amendment right of access to information and meetings.

Define Shield Laws

These laws outline the reporter's privilege that has been established by the state. The statutes generally establish who can use the privilege (who is a reporter), the kinds of information the privilege protects (sources), and any qualifications that might accrue (privilege us waived through voluntary disclosure of other parts of the material.

Why should journalists have to testify? Explain the advantages and disadvantages that drive the argument over a qualified privilege for reporters to withhold information from the government.

They shouldn't. Like in the Judith Miller case, it is absolutely vital that journalists are able to gather news and dispense it without fear of having to reveal a source. If a source cannot remain anonymous the story may never make it out. Think Deep Throat and Watergate!

Why does the possibility exist?

To ensure a defendant receives a fair trial

Pick a case, why is the actual case decision good law? Why is it bad law?

Washington Post v. Dept. of Homeland Security. It was good law because it established then Vice President Dick Cheney's visitor logs were available under FOIA. And the access to those logs not only covered visitors to the White House Complex, but also visitors at Cheney's personal residence.

What is your personal opinion about the case law? Considering the actual court decision, which litigant (plaintiff/defendant) do you think should have won the case? Why?

We the people have a right to know what our government officials are doing in public office. I agree that the Washington Post should win. Cheney was obviously visiting with someone the people had an interest in. In trying so hard to stop the disclosure of the logs, and then eventually burning them, it only makes him look like he had something to hide.

Can a judge close a pretrial hearing?

Yes, but it's very difficult! Before such hearings can be closed the trial judge must apply the rigid requirements of the Press-Enterprise test.

Would you not allow cameras in the courtroom? Why not?

Yes.

Would you allow cameras in the courtroom? Why?

Yes. I think it helps the community at large see the actual judicial process.

National Archives & Records Admin. v. Favish

a reporter by the name of Favish was attempting to obtain the death-scene photos of Bill Clinton's deputy counsel Vincent Foster Jr supposed suicide. Favish believed the government's investigation was "grossly incomplete and untrustworthy," and wanted to prove it with the photos. Foster's family objected stating their own privacy would be compromised with the release of the photos. The court came down on the side of Foster's family. Justice Kennedy wrote there must be "more than a bare suspicion," by Favish to release the photos. Favish did not meet the burden of evidence. The Favish opinion ranks as an important victory for privacy rights advocates, and a blow to access supporters, including journalists.

What is this thing about admissible evidence?

any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding. In order for evidence to be admissible, it must be relevant, without being prejudicial, and it must have some indicia of reliability.

Shoen v. Shoen

extended the reporter's privilege in a civil suit to the authors of books. The court ruled that a book author clearly had a right to invoke First Amendment privilege. "The journalist's privilege is designed to protect investigative reporting regardless of the medium used to report the news to the public." Judge Norris wrote.

Associated Press v. U.S. Dept. of Defense

in 2006 a judge held that Exemption 6 did not stop the release of height and weight information of detainees at Guantanamo. In this particular case, the need to release the records was high, as the judge reasoned, "there is clear public interest in obtaining this information so as to assess, not only, Department of Defense's conduct with respect to the hunger strikes at Guantanamo, but more generally DOD's care and (literally) feeding of the detainees.

Define Impartial Juror, according to Burr/Murphy/Patton cases

is one whose mind is free from the dominant influence of knowledge acquired outside the courtroom, free from strong and deep impressions that close the mind.

How does Richmond Newspapers v. Virginia fit in? Why?

it established that there was a right under both common law and the First Amendment to the U.S. Constitution for the public and the press to attend a criminal trial.

What is the judge's duty/responsibility , according to the Sheppard case?

to ensure fair trail and freedom of the press